Hawaii And California Open Carry
BY Herschel Smith
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.