Petition for Appeal to be heard Initially En Banc filed
My petition for my appeal to be heard initially en banc was filed just after midnight yesterday (December 14th). We should know within a month whether or not an active judge asked for a vote on the petition. If the petition is denied the denial would be "without prejudice" which means that I can file another one if need be.
In addition to the FRAP 35 reasons for granting the petition, I observed that the only other carry cases (
Baker and
Young) are poor vehicles for an En Banc review for the reasons I gave at my website. Also, mine is the only Open Carry case squarely before the Court and very likely the only one to ever be before the Court.
From my petition:
Baker is the appeal of the denial of a preliminary injunction. Mr. Baker
applied for and was denied a license to carry a concealed handgun in conjunction
with his job as a process server. A job he had voluntarily abandoned.
On September 6, 2016, Mr. Baker filed a Supplemental Brief (Dkt No.: 90)
in response to the Order of the Court of August 16, 2016, “in light of the en banc
decision in Peruta v. County of San Diego, No. 10-56971 and Richards v. Prieto,
No. 11-16255” (Dkt No.: 82). (Peruta v. County of San Diego, 824 F. 3d 919 (9th
Cir. 2016)).
In the first paragraph of Mr. Baker’s Supplemental Brief he stated “For the
reasons explained by the dissent, Mr. Baker believes that holding was in error. Mr.
Baker therefore respectfully preserves the point for further review.”
Given that Mr. Baker seeks to carry a handgun concealed in public and his
candid statement that he disagrees with the en banc decision in Peruta which held
that there is no right under the Second Amendment for the general public to carry a
concealed weapon in public, his is a poor vehicle to argue in defense of the Second
Amendment Open Carry right defined in Heller. Unsurprisingly, Mr. Baker does
not seek to openly carry long guns in public.
Mr. Young for the first time on appeal challenges the State of Hawaii’s
prohibition on openly carrying long guns in public. His attorney is Mr. Alan Beck
who also represents Mr. Baker. Attorney Beck asks for an order either enjoining
HRS 134-9 or compelling local Defendants to adopt policies to allow it to survive
constitutional muster. HRS 134-9 is Hawaii’s handgun licensing law for both
concealed and Open Carry of handguns. Enjoining HRS 134-9 would not give Mr.
Young a license. And to the extent that it is even possible to attack state law
through the City Defendants, Mr. Young’s attorney did not state what policies he
would have this Court compel upon the local officials who are obliged to follow
state law.