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Ninth Circuit vacates lower court decision on carrying guns in Hawaii

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The United States Court of Appeals for the Ninth Circuit has put Hawaii one step closer to less restrictive firearms carry with a three judge panel decision filed Thursday in the case of Christopher Baker v. Louis Kealoha that vacated a decision by the U.S. District Court for the District of Hawaii.

Baker challenged Hawaii’s “may issue” law after being denied a permit by Honolulu Police Chief Louis Kealoha, claiming among other things this deprived him “of the fundamental constitutional rights guaranteed by the Second Amendment and made applicable to the states by the Fourteenth Amendment to the United States Constitution [and] of Due Process of law, guaranteed by the Fifth and Fourteenth Amendments...”

“In light of our holding in Peruta, the district court made an error of law when it concluded that the Hawaii statute s did not implicate protected Second Amendment activity. Accordingly , we vacate the district court’ s decision denying Baker’s motion for a preliminary injunction and remand for further proceedings consistent with Peruta,” the concurring opinion by Justices Diarmuid O'Scannlain and Consuelo María Callahan explained, with a dissent once more filed by Judge Sidney Runyan Thomas. Of note, per the Biographical Directory of Federal Judges, O’Scannlain and Callahan were appointed respectively by Ronald Reagan and George W. Bush, and Thomas was a Bill Clinton nominee.

This does not mean Hawaii will automatically and immediately adopt “shall issue” permitting. Per UCLA Law Professor Eugene Volokh writing yesterday in The Washington Post, “Hawaii restrictions on gun carrying (essentially) held unconstitutional -- for now.

“Of course, if the Ninth Circuit agrees to rehear Peruta en banc and then reverses it, or if the U.S. Supreme Court agrees to hear Peruta and then reverses it, then the foundation for the Baker decision will be reversed, too,” Volokh cautions.

Add to that a conflict highlighted by the Supreme Court declining to hear Woollard v. Gallagher, a similar case originating in Maryland, and gun owners are reminded that all the high court has to do to let bad law stand is ... nothing.

To a layperson, all the legal maneuverings seem like an argument about how many angels can dance on the head of a pin. It’s not unfair to assume those who inextricably bound the words “shall not be infringed” to “the right of the people to keep and bear arms” might be just as puzzled and outraged at how their grand vision has been betrayed by those tasked and sworn to uphold it.

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