George Young, Jr. v. State of Hawaii (2021)

Compare Gould v. Morgan, 907 F. 3d 659, 677 (CA1 2018); Kachalsky v. County of Westchester, 701 F. 3d 81, 101 (CA2 2012); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013); United States v. Masciandaro, 638 F. 3d 458, 460 (CA4 2011); Young v. Ha- waii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn v. District of Columbia, 864 F. 3d 650, 668 (CADC 2017).

Compare Gould v. Morgan, 907 F. 3d 659, 677 (CA1 2018); Kachalsky v. County of Westchester, 701 F. 3d 81, 101 (CA2 2012); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013); United States v. Masciandaro, 638 F. 3d 458, 460 (CA4 2011); Young v. Ha- waii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn v. District of Columbia, 864 F. 3d 650, 668 (CADC 2017).

“Following Heller and McDonald, we have created a two-step framework to review Second Amendment challenges.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 1 In a footnote, Plaintiffs state that summary judgment was proper in their favor on the due process claim “[f]or all the same reasons” that apply to the takings claim.

“Following Heller and McDonald, we have created a two-step framework to review Second Amendment challenges.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 1 In a footnote, Plaintiffs state that summary judgment was proper in their favor on the due process claim “[f]or all the same reasons” that apply to the takings claim.

Indeed, one can easily draw the opposite conclusion from these colonial statutes—that “[w]hen the government imposes such a duty it assumes that it has the power to regulate the public carrying of weapons; whether it forbids them or commands them, the government is regulating the practice of public carrying.” Young v. Hawaii, 992 F.3d 765, 819 (9th Cir. 2021) (en banc), vacated and remanded, 142 S. Ct. 2895 (2022).

Indeed, one can easily draw the opposite conclusion from these colonial statutes—that “[w]hen the government imposes such a duty it assumes that it has the power to regulate the public carrying of weapons; whether it forbids them or commands them, the government is regulating the practice of public carrying.” Young v. Hawaii, 992 F.3d 765, 819 (9th Cir. 2021) (en banc), vacated and remanded, 142 S. Ct. 2895 (2022).

On the merits, for challenges to firearm laws under the Second and Fourteenth Amendments, we apply a “two-step framework.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc).

GARLAND 38 would be valid.” Young, 992 F.3d at 779 (quotations and alterations omitted).

Id. at 119, 128 . 10 Gould v. Morgan, 907 F.3d 659 , 668–69 (1st Cir. 2018); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States v. Chester, 628 F.3d 673 , 680–83 (4th Cir. 2010); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185 , 194–95 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Ezell v. City of Chicago, 651 F.3d 684 , 700–04 (7th Cir. 2011); Young v. Hawaii, 992 …

In Kachalsky, we assumed the first step of the two-part test in favor of the challenger: specifically, 651 F.3d 684 , 700–04 (7th Cir. 2011); Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc), United States v. Reese, 627 F.3d 792 , 800–01 (10th Cir. 2010), GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 , 1260 n.34 (11th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C.

Morales thus forfeited this issue on appeal because we do “not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant’s opening brief.” Young v. Hawaii, 992 F.3d 765, 780 (9th Cir. 2021) (citation omitted); see also Frank v. Schultz, 808 F.3d 762 , 763 n.3 (9th Cir. 2015) (“[I]ssues which are not specifically and distinctly argued and raised in a party’s opening brief are waived”) (citation omitted).

See Young v. State, 992 F.3d 765, 780 (9th Cir. 2021) (“We do not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant’s opening brief.”) (simplified).

Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc); Bauer 7 v. Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017) (“two-step Second Amendment 8 inquiry”); Yukutake v. Conners, No. cv 19-00578 JMS-RT, 2021 WL 3625307 , at *5 (D. 9 Haw.

The court did not resolve exactly what the legislature meant by carry “openly in the hands” but nevertheless determined that the law did not “interfere with the right of keeping the arm, or of bearing it for the common defense.” Id. at 62-63 .19 Ten years after Wilburn, Arkansas’s Supreme Court upheld a similar restriction under its own constitution, which “did not expressly reserve to the legislature the right to regulate arms.” Young v. Hawaii, 992 F.3d 765, 807 (9th Cir. …

Young v. Hawaiʻi, 992 F.3d 765, 821 (9th Cir. 2021), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022), and abrogated by New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

Ed. 2d 435, 443 (2015)); see also Young v. Hawaii, 992 F.3d 765 , 779 (9th Cir. 2021) (“A facial challenge is a claim that the legislature has violated the Constitution, while an as-applied challenge is a claim directed at the execution of the law.”), vacated on other grounds, 142 S. Ct. 2895 KELLY V.

Defs.’ Mem. 16–17 (citing Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021)); Defs.’ Reply 10. “[A] regulation ‘does not burden conduct protected by the Second Amendment if the record contain[s] evidence that [the sub- jects of the regulations] have been the subject of longstanding, accepted regulation.’” Young, 992 F.3d at 783 (quoting Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015)); see Heller, 554 U.S. at 626-27 , 627 n.26 (holding that certain “longstanding pro- …

Under this 13 standard, the Court first asks “if the challenged law affects conduct that is protected by the 14 Second Amendment.” Young, 992 F.3d at 784.

(ECF No. 2 | 11 at 6.) “The relaxed pleading standard we afford pro se litigants does not apply to counseled 3 | filings.” Young v. Hawaii, 992 F.3d 765, 780 (9th Cir. 2021), vacated on other grounds, 142 S. 4 | Ct. 2895, 213 L.

Under Ninth Circuit precedent, that ends the matter.”); id. at 948 (describing 25 the one-step analysis for longstanding regulations set out in Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc)) (“Laws restricting conduct that can be traced to the 26 founding era and are historically understood to fall outside of the Second Amendment’s 27 scope may be upheld without further analysis.

“A facial challenge is a claim that the legislature has violated the Constitution, while an as-applied challenge is a claim directed at the execution of the law.” Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021), cert. granted, judgment vacated, 213 L.

Ed. 2d 435, 443 (2015)); see also Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021) (“A facial challenge is a claim that the legislature has violated the Constitution, while an as-applied challenge is a claim directed at the execution of the law.”), vacated on other grounds, 142 S. Ct. 2895 KELLY V.

Analysis 18 A. Facial Versus As-Applied Challenge 19 “A facial challenge is a claim that the legislature has violated the Constitution, while 20 an as-applied challenge is a claim directed at the execution of the law.” Young v. Hawaii, 21 992 F.3d 765, 779 (9th Cir. 2021). 22 Throughout its briefing, the State argues that Plaintiffs “have not pled a viable facial 23 claim.” (Doc. 118 at 17.

The United States Court of Appeals for the Ninth Circuit recently explained that, “[b[ecause a facial challenge is directed to the legislature, the plaintiff must show that “no set of circumstances exists under which the [statute] would be valid.” Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021) (citing Hotel & Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir. 2003)).

Id. 16 Facial challenges are more difficult to prove than as-applied challenges. 17 Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021).

“A facial challenge is a claim that the legislature has violated the Constitution, while an as-applied challenge is a claim directed at the execution of the law.” Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021).

Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021).

The sparse handful of laws Defendant puts forth does not demonstrate the requisite “historical prevalence.” Young, 992 F.3d at 783 (“We are looking for ‘historical prevalence.’”) (quoting Fyock, 779 F.3d at 997 )).

Order on Consolidated Cases at 11–12 (citing 2 3 Young v. State, 992 F.3d 765, 778 (9th Cir. 2021)).

See Young v. Hawaii, 896 F. 3d 1044, 1071, n. 21 (CA9 2018), reh’g en banc, 992 F. 3d 765 (2021), cert. granted, judgt. vacated, 597 U. S. 916 (2022).

See, e.g., Young v. Hawaii, 896 F.3d 1044, 1048 (9th Cir. 2018), on reh’g en banc, 992 F.3d 765 (9th Cir. 2021) (en banc) (overturning the three-judge panel); Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1147 (9th Cir. 2014), on reh’g en banc, 824 F.3d 919 (9th Cir. 2016) (en banc) (same); Duncan v. Becerra, 970 F.3d 1133, 1138 (9th Cir. 2020), on reh’g en banc sub nom.

See, e.g., Young v. Hawaii, 992 F.3d 765 , 783–84 (9th Cir. 2021) (summarizing our two-step process and collecting cases), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022).

See id. at 57 (rejecting our en banc court’s holding in Young v. Hawaii, 992 F.3d 765 , 813 (9th Cir. 2021) (en banc), that “the government may regulate, and even prohibit, in public places” the carrying of firearms).

See id. at 57 (rejecting our en banc court’s holding in Young v. Hawaii, 992 F.3d 765, 813 (9th Cir. 2021) (en banc), that “the government may regulate, and even prohibit, in public places” the carrying of firearms).

See, e.g., Young v. Hawaii, 992 F.3d 765, 783-84 (9th Cir. 2021) (en banc), vacated, 142 S. Ct. 2895 (2022).

See Young, 992 F.3d at 784 (quoting Silvester, 843 F.3d 9 at 821 ); accord Greeno, 679 F.3d at 518 (holding that if the challenged law governs 10 conduct beyond the Second Amendment’s textual scope, “then the analysis can stop there; 11 the regulated activity is categorically unprotected”). 12 If the conduct regulated by the challenged law is protected by the Second 13 Amendment, courts proceed to the second step of the analytical framework: determining 14 what level of scru…

See Young v. Hawaii, 992 F.3d 765 , 26 5In Heller, the Supreme Court indicated that determining the scope of the Second 27 Amendment’s protection requires a historical and textual analysis of the Amendment, see id. at 576-605, but the Court declined to undertake an exhaustive historical analysis 28 of the full scope of the Amendment, see id. 626-27. 2 challenged law burdens conduct protected by the Second Amendment and (2) if the law 3 burdens protected Second Amendment cond…

See 20 id. at 10–18. 21 The Ninth Circuit then issued its opinion in Young v. Hawaii, 992 F.3d 765 (9th Cir. 22 2021) (en banc), which upheld a Hawaii firearm licensing scheme against a similar constitutional 23 challenge.

See, e.g., Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021), abrogated by Bruen, 19 142 S. Ct. 2111 . 20 On June 27, 2022, this Court ordered the parties to file supplemental briefs, addressing 21 Bruen and the proper legal standard for Plaintiffs’ Second Amendment challenge.

See Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021) (en banc) (“A facial challenge is a claim that the legislature has violated the Constitution, while an as-applied challenge is a claim directed at the execution of the law.”).