Hawaii And California Open Carry
BY Herschel Smith
2 years, 2 months ago
Dean Weingarten has an exposé on the status of Young v. Hawaii. I knew this and had read the reports, but the interesting thing about this is that in the comments section, Charles Nichols drops by the make an extended comment.
I suspect that the Young v. Hawaii en banc panel would like to issue an opinion that says states can ban Open Carry in favor of concealed carry. However, there are a couple of jurisdictional problems with the en banc panel doing that.
The first is the Young v. Hawaii three-judge panel was bound by the Peruta v. San Diego en banc panel opinion and held that there is only a right to Open Carry. Neither side fled an en banc petition challenging either that holding of the three-judge panel opinion or the Peruta v. San Diego en banc panel opinion.
The State of Hawaii did file an en banc petition limited to the Open Carry holding of the three-judge panel, which was granted.
During the en banc oral argument, Mr. Young’s attorney (Alan Beck) was asked point blank if he was challenging the Peruta v. San Diego en banc opinion which held that there is no right to concealed carry. He said that he was not challenging Peruta v. San Diego, en banc.
Putting all of that together, the en banc panel does not have the jurisdiction to decide anything other than whether or not the denial of Mr. Young’s permit to openly carry a handgun violated the Second Amendment. And the en banc panel might not even decide that question because there were a couple of reasons given by the en banc panel, that were independent of the Second Amendment, for upholding the decision of the district court.
My California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al, does not challenge the Peruta v. San Diego en banc panel opinion either. My lawsuit is not limited to handguns. I challenge California’s bans on openly carrying loaded and unloaded rifles, shotguns, and handguns. I also challenge the license requirement.
My three-judge panel asked for supplemental briefing. The Young v. Hawaii en banc panel has not. Supplemental briefing was completed in my appeal on August 8th.
So if I read this right, Young was about open carry alone. Peruta was about concealed carry alone. The Nichols case is about open carry alone, and in California, not Hawaii (although presumably deciding for Nichols in California would be favorable to Young and vice versa).
The trouble is that Bruen didn’t decide open carry, and thus we are left with patchwork rulings and patchwork laws in states.
I continue to maintain that gentlemen, good citizens and men of fine upbringing don’t mind openly carrying their weapons in public. It is for the good and peace of the country.
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On August 19, 2022 at 1:03 pm, scott s. said:
After Peruta was decided, the thinking was “OK, if state can prohibit concealed carry, then they have to allow open carry” and that led to Young. The current HI AJ reads Bruen as requiring either but not both, so has directed County Police to prepare to issue concealed permits. It will be interesting to what ninth circuit ends up doing.
On August 20, 2022 at 9:16 pm, Charles Nichols said:
“The trouble is that Bruen didn’t decide open carry…”
Actually, it did. The Court held that there is a right to carry firearms in public, and handguns are firearms and so there is a right to carry a handgun in public. And the court reminded us that only prohibitions on concealed carry are constitutional but carrying a handgun in public cannot be banned because the license allows one to carry a handgun concealed.
Justice Alito in his concurrence questioned whether or not Justice Breyer’s dissent in Bruen combined with his dissent in Heller would allow the government to ban the carrying of long guns in addition to handguns. Justice Alito would not have raised the question if he thought there is no right to carry long guns in public.
For over 200 years, the debate in the courts and among legislators was not whether or not there is a right to bear long guns in public. The debate was whether or not handguns were protected by the Second Amendment and what size and type of handguns were protected.
On August 21, 2022 at 7:45 pm, Herschel Smith said:
@Charles,
Eh, you and I may agree with that, but the point may be lost on courts whose primary intent it is to deny rights. It’s a rather obtuse argument.
If their intent was to decide in the affirmative (and I wish they had specifically raised the question and responded in the affirmative), then they should have been clearer on the point.
It’s a point that can (and should) be made, but I have my doubts the Ninth Circus will be moved by it.