On 24 July, 2018, a three-judge panel of the Ninth Circuit upheld the right to bear arms outside the home. As expected, the State of Hawaii waited until the last possible day, then filed a petition for the Ninth Circuit to hear the case en banc, that is, by the whole court.
Because the Ninth Circuit is so large and awkward compared to other circuits, an en banc hearing of the Ninth involves 11 judges chosen at random, out of the 23 or 24 judges (depending on confirmation hearings) on the Ninth Circuit.
In the closely linked case of Peruta, the Ninth Circuit granted an en banc hearing of the case. The process took about 18 months. In the Peruta case, a request for an en banc hearing was denied in November of 2014. Then a judge on the Ninth Circuit called for an en banc vote anyway. The the vote for an enbanc hearing was announced on 26 March, 2015. Oral arguments were heard on 16 June, 2015. On June 10th, 2016, the Ninth Circuit, en banc, reversed the ruling of the three judge panel on Peruta and narrowly found there was no right to carry arms concealed outside the home. The case was appealed to the Supreme Court, which refused to grant certiorari.
In Young v. State of Hawaii, the case rules only on permits for open carry, as the precedent of Peruta foreclosed a right to concealed carry in the Ninth Circuit.
In the petition for an en banc rehearing, the Government of Hawaii claims the mere potential for police chiefs to issue open carry permits is sufficient to satisfy any right to bear arms outside the home, although only four permits have been issued for people (outside of employment permits) in the last 18 years. From Young v. State of Hawaii:
First, the panel invalidated Hawaii’s law on the ground that it limits open-carry licenses to “security guards” and other individuals whose jobs entail protecting life and property. Add. 51-52. But that is just wrong. By its plain terms, Hawaii Revised Statutes § 134-9 makes open-carry licenses available to any otherwise-qualified individual who “sufficiently indicate[s]” an “urgency” or “need” to carry a firearm and who is “engaged in the protection of life and property.” Haw. Rev. Stat. § 134-9(a). Moreover, if there was any doubt on the question, the Hawaii Attorney General has removed it by issuing a formal legal opinion that clarifies that the law extends to private individuals as well as security officers, and that advises police chiefs that victims of domestic violence, individuals who face a credible threat of armed robbery or violent crime, and other private persons may be eligible for open-carry licenses.
The Ninth Circuit has proved hostile to the Second Amendment right to keep and bear arms. It has interpreted the Second Amendment in the most narrow way possible, in order to infringe on the exercise of Second Amendment rights as much as it can get away with. The only authorities who have the power to reverse the Ninth Circuit are the Supreme Court and future Ninth Circuit judges.
Legislative remedies are possible with the California government, but are highly unlikely in the foreseeable future. The California government seems bent on passing as many infringements on Second Amendment rights as it can.
Legislative remedies are also possible with the federal legislature, who could tie the exercise of Second Amendment rights to federal money that is given to California.
As of this writing, it appears that Judge Kavanaugh will be confirmed to become Justice Kavanaugh on the U.S. Supreme Court. This changes the dynamics of a potential Supreme Court appeal if the Ninth Circuit decides to hear Young v. State of Hawaii en banc, and the decision is appealed to the Supreme Court.
As we saw with the Peruta decision, the en banc process can take 18 months or more.
Do not expect any definitive rulings on the case for at least two years.
Do you think Hawaii will be successful in its en banc hearing? Share your answer and analysis in the comment section.
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