When and Where?

The week of March 25th, 2019, eleven active judges of the 9th circuit court of appeals and the players for the two sides will assemble in the James R. Browning U.S. Courthouse, San Francisco to hear oral argument in the case of George Young, Jr. v. State of Hawaii.

The Nature of the Game

The case before the judges is a simple one. George Young appeals from the district court’s dismissal of his civil rights action challenging under the Second Amendment provisions of Hawaii law pertaining to the issuance of permits to carry a concealed or unconcealed weapon.

In short, is there a Second Amendment right to keep and bear arms outside of the interior of our homes or, as the district court held, the Second Amendment disappears once we step outside the door to our home?

A high stakes game to be sure.

Possible Outcomes

If the en banc panel publishes a decision, which is likely, then that decision will be binding on all subsequent three-judge panels in the 9th circuit court of appeals unless or until the United States Supreme Court issues a decision which casts doubt on the en banc decision in Young v. Hawaii.

The en banc panel of judges could simply issue an unpublished decision, which is binding on nobody except the parties to the lawsuit, and/or kick the case back to the district court for a do-over.

The Judges

Because of its size, the 9th circuit court of appeals does not hold “full court” en banc hearings which normally consist of all active, non-recused circuit judges in a particular circuit.

Had President Trump been able to fill all of the vacancies on the 9th circuit court of appeals last year then there would now be 29 active judges.

As it is, there are 23 active judges on the 9th circuit court of appeals. Which is more than on any other Federal circuit court of appeals.

The en banc panel of judges will consist of 9th Circuit Chief Judge Sidney Thomas and 10 circuit judges who were randomly drawn from a pool of judges which consists of all active circuit judges in this circuit plus senior circuit court judges O’Scannlain and Clifton because they sat on the three-judge panel which decided Mr. Young’s case.

These two Senior circuit judges are not required to be a member of the en banc pool. Their participation in the pool is voluntary and only then if they request to be included in the pool of judges.

The one judge who we do know who will be on the panel is 9th circuit Chief Judge Sidney Thomas who serves on every en banc panel in the 9th circuit.

This leaves a potential pool of at most 24 judges, the 22 remaining active circuit judges plus the two senior circuit judges who sat on the Young v. Hawaii three-judge panel.

Although it is impossible to predict with absolute certainty how an individual judge will decide, we do have enough information on some of them which is sufficient to make an educated guess.

Chief Judge Sidney Thomas – The Chief Judge sat on both the three-judge and en banc panels in the NRA’s concealed carry appeal, Peruta v. San Diego, which was decided (lost) alongside the SAF’s and CalGuns.nuts appeal, Richards v. Prieto.

Chief Judge Thomas filed a dissent to the three-judge panel decision in Peruta which the seven-judge majority in Peruta/Richards adopted. Namely, concealed carry is not a right. Chief Judge Thomas’ view is if there is a right to carry arms in public under the Second Amendment then that right is to openly carry firearms. And since the plaintiffs in both the Peruta and Richards concealed carry lawsuits had argued that states can ban Open Carry in favor of concealed carry and had not sought to Open Carry, anywhere or anytime, the en banc court did not decide the Second Amendment Open Carry question because that question was not before the court.

My sense is that if Chief Judge Thomas were allowed to rewrite the legislation then he would require that firearms carried in cities, towns and villages be carried unloaded (and openly) and allow for Loaded Open Carry outside of these places.

But Chief Judge Thomas is also of the generation of judges who knows that they are not allowed to legislate from the bench. And so it is a coin toss as to what he decides in Young v. Hawaii with the coin likely landing on its edge. Which is to say that Judge Thomas will hold that the Second Amendment is limited to the home until the Supreme Court says otherwise, or he will concur with the decision which comes closest to what he would write, if he could rewrite the Hawaii statute.

In any event, whatever the court decides Chief Judge Thomas will stand by the decision in Peruta v. San Diego en banc, that there is no right to concealed carry as will the other members of the Peruta v. San Diego en banc panel who are still active judges if they happen to be picked to sit on the Young v. Hawaii en banc panel. Namely, Circuit Judges Graber, McKeown, Fletcher, Paez, and Owens.

Keep in mind, the Chief Judge has only one vote. There are ten other members of the en banc panel and it takes at least six of them to agree on a decision.

Senior Circuit Judge O’Scannlain – Judge O’Scannlain wrote the majority three-judge panel decision in both Peruta v. San Diego and Young v. Hawaii. He will vote for a decision which holds that the Second Amendment extends outside the door to our home. Having now held in his Young v. Hawaii three-judge panel decision that the Second Amendment, at a minimum, protects the right to Open Carry one can only hope he doesn’t change his mind if he is able to cobble enough votes on the en banc panel to say that Open Carry can be banned in favor of concealed carry.

Senior Circuit Judge Clifton – Judge Clifton filed a dissent in the Young v. Hawaii decision. He will vote for a decision which holds that either the Second Amendment is limited to the interior of our homes or he will vote that Hawaii’s de facto ban on the Second Amendment right to keep and bear arms is Constitutional.

Circuit Judge Susan P. Graber – This is an easy prediction. She will vote for a decision which holds that either the Second Amendment is limited to the interior of our homes or she will vote that de facto bans on the Second Amendment right to keep and bear arms are Constitutional.

Circuit Judge M. Margaret McKeown – She will vote for a decision which holds that either the Second Amendment is limited to the interior of our homes or she will vote that de facto bans on the Second Amendment right to keep and bear arms are Constitutional.

Circuit Judge Kim McLane Wardlaw – She will vote for a decision which holds that either the Second Amendment is limited to the interior of our homes or she will vote that de facto bans on the Second Amendment right to keep and bear arms are Constitutional.

Circuit Judge William A. Fletcher – Another easy prediction. Judge Fletcher will vote for a decision which holds that either the Second Amendment is limited to the interior of our homes or he will vote that de facto bans on the Second Amendment right to keep and bear arms are Constitutional.

Circuit Judge Ronald M. Gould – Judge Gould filed a dissent to a 9th circuit decision which held that the Second Amendment is not an individual right. What his views are today is anyone’s guess.

Circuit Judge Richard A. Paez – Judge Paez will vote for a decision which holds that either the Second Amendment is limited to the interior of our homes or he will vote that de facto bans on the Second Amendment right to keep and bear arms are Constitutional.

Circuit Judge Marsha S. Berzon – If Hawaii law allowed some people, other than security guards, to obtain permits then Judge Berzon would uphold a law which made exceptions for “good cause” or “heightened need.” Which way she comes down in the Young v. Hawaii case is anyone’s guess. As Mr. Young did not claim to have good cause or any heightened need then my guess is Judge Berzon will side against Mr. Young and side in favor of a decision which says Hawaii must issue permits to some folks, other than security guards, who have “good cause” for a carry permit.

Circuit Judge Johnnie B. Rawlinson – Unknown.

Circuit Judge Jay Bybee – Prior to the oral argument in my appeal, Charles Nichols v. Edmund G. Brown Jr., et al, I would have placed Judge Bybee on Mr. Young’s side. I am not so sure anymore. Judge Bybee is therefore an Unknown.

Circuit Judge Consuelo María Callahan – This is an easy one. Judge Callahan will side with Mr. Young.

Circuit Judge Carlos Bea – Another easy one. Judge Bea will side with Mr. Young.

Circuit Judge Milan Smith – Unknown.

Circuit Judge Sandra Segal Ikuta – Another easy one. Judge Ikuta will side with Mr. Young. She, along with Senior Judge O’Scannlain were in the majority in the now vacated three-judge panel decision in Young v. Hawaii.

The Seven Obama Circuit Judges – Judges Watford, Owens, and Friedland will side with the State of Hawaii. Judges Murgia, Nguyen and Hurwitz will probably side with the State of Hawaii. Judge Christen is an unknown.

The Two Trump Circuit Judges – Judge Bennett will side with the State of Hawaii. Judge Ryan D. Nelson is an unknown. We knew when Judge Bennett was nominated that he opposes the Second Amendment. We knew because he said so. Where Judge Nelson stands is anyone’s guess.

The Players

The State of California and the National Rifle Association through its official state organization, the California Rifle and Pistol Association (CRPA, no really) tried to join the game but their petition was denied. So they will have to sit and wait on the sidelines along with me, the author of this piece and the sole plaintiff in Charles Nichols v. Newsom et al (formerly v. Edmund G. Brown Jr., et al).

The difference being I chose to sit this one out. Six months or a year from now when the results of the Young v. Hawaii game are released, the playing field will be much more favorable for me and my California Open Carry appeal.

As to Young v. Hawaii:

On one side, we have the Appellant George Young Jr. and his two attorneys, Alan Beck and Stephen Stambouleigh. On the other side we have the Appellees and their somewhat longer list of players:

STATE OF HAWAII

Defendant - Appellee, John M. Cregor, Jr., Esquire, Deputy Attorney General Kaliko'Onalani Diara Fernandes, Deputy Solicitor Neal Kumar Katyal Mitchell Reich Colleen Sinzdak Clyde James Wadsworth

NEIL ABERCROMBIE, in his capacity as Governor of the State of Hawaii

Defendant - Appellee, John M. Cregor, Jr., Esquire, Deputy Attorney General Neal Kumar Katyal

DAVID MARK LOUIE I, Esquire, in his capacity as State Attorney General

Defendant - Appellee, John M. Cregor, Jr., Esquire, Deputy Attorney General Neal Kumar Katyal

COUNTY OF HAWAII, as a sub-agency of the State of Hawaii

Defendant - Appellee, D. Kaena Horowitz, Deputy Corporation Counsel Neal Kumar Katyal Laureen L. Martin, Assistant Corporation Counsel

WILLIAM P. KENOI, in his capacity as Mayor of the County of Hawaii

Defendant - Appellee, D. Kaena Horowitz, Deputy Corporation Counsel Neal Kumar Katyal Laureen L. Martin, Assistant Corporation Counsel

HILO COUNTY POLICE DEPARTMENT, as a sub-agency of the County of Hawaii

Defendant – Appellee, Neal Kumar Katyal

Melody A. Parker, Deputy Corporation Counsel



HARRY S. KUBOJIRI, in his capacity as Chief of Police

Defendant – Appellee, D. Kaena Horowitz, Deputy Corporation Counsel

Neal Kumar Katyal

Laureen L. Martin, Assistant Corporation Counsel

Six Votes to Win!

It takes six votes to win an en banc decision. As you can see from the above list of 24 judges, there are six votes to hold that the Second Amendment is limited to the home. There are six votes to hold that the Second Amendment extends to public places and that Hawaii’s de facto ban on the issuance of permits is unconstitutional. There are six votes to hold that the Second Amendment extends outside the home (or will assume that it does) but the State of Hawaii can require one to show “good cause” or a heightened need for the issuance of a permit, which Mr. Young has not shown or alleged.

Ironically, there are enough judges, whose likely position is “unknown,” that we will not be able to make any prediction at all if they are ultimately revealed to be a majority of the judges chosen to decide this case, or in sufficient number to decide the outcome of this case.

We will have to wait until March 18, 2019, to find out which judges were chosen.

The greater irony is with eight vacancies remaining on the 9th circuit court of appeals, if the Senate Judiciary Committee stops sitting on its thumb and confirms President Trump’s 9th circuit court nominees then we might get to go through this all over again, because win or lose, either I or the State of California will file an en banc petition in my California Open Carry appeal, Nichols v. Brown.

But if we do have to go through another en banc panel rehearing six months or a year from now then the playing field will be much more favorable to me both here in the 9th circuit and, all other things being equal, before the United States Supreme Court.

Charles Nichols