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Gun Control & RKBA

In reply to the discussion: So last I read... [View all]

FBaggins

(27,920 posts)
8. I think the 9th circuit ain't what it once was
Wed Aug 14, 2019, 10:15 PM
Aug 2019

Of course... the ruling was three republican judges.

From a political perspective, the en banc 9th has a tough decision to make that isn't unlike what NY has been facing. If they overturn, they give the Supreme Court the ability to make law for the whole country. But can they take a narrow loss that's still big enough to moot the case? I haven't read the law in question or anything but a summary of the panel decision, so I couldn't guess. Other states have shifted to "will issue" in order to moot a case and avoid a national shift... but I'm not sure Hawaii has the will to do so either.

From a constitutional perspective? I'd say that carrying in public is a constitutional right... but not one so fundamental that the government cannot enact reasonable restrictions. I'd put it right on the cusp between intermediate and strict scrutiny and state that in most cases, the government has a sufficient enough governmental interest to survive either test. So the question comes down to how narrowly tailored the law must be in trying to achieve that end and/or whether it is substantially related to the interest. My (admittedly limited) understanding is that Hawaii is a "may issue" state that is effectively "no issue". I doubt they could survive an as-applied challenge if that's the case... would pass a facial challenge in the 9th en-bank... and would fail with SCOTUS.

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