What is the chance that we'll get a couple strict constitutionalists?

[The following is all strictly personal opinion, with no true factual basis in support, especially the math.]

Zero. Okay, almost zero. With Judge O'Scannlain's (who wrote the original three judge panel opinion in Peruta/Richards/Baker) move to "senior" status, the only "strict constitutionalist" remaining on the Ninth is Judge Kozinski.

Not surprisingly, the judicial opinions of the various judges align remarkably well with the political positions of the presidents who appointed them, and here is the breakdown:

Carter 1
Reagan 1 (judge Kozinski)
Clinton 10
GW Bush 6
Obama 7

By appointment alone, that makes it 18-7 for the "progressive" side. If you look at the reality of several of the Bush appointees, it makes more like 20-5 or 21-4.

Assuming that any judge will rule in the manner consistent with the political views of the president who appointed him, the probability of 2 of the three judges being drawn for the panel being appointed by Republican presidents is 1 in 6.67. I'll qualify that by saying that it's been so long since i learned the math of odds and probabilities that that answer could be the same as "made it up". However, I think that even just a "commonsense" look at the numbers of judges and who appointed them (look at the Peruta en banc panel makeup) will lead one to conclude that the draw of the original Peruta three judge panel was a highly improbable "fluke", and that the chances of that happening again, in written words rather than a mathematical formulation, would be "Ain't gonna happen".

What is the chance that we'll get a couple strict constitutionalists?

Zero

What is the chance that we'll get a couple strict constitutionalists? [In a "random" draw for a three judge panel.]

Okay, here's a "real life" example of the "draw" for an en banc panel that heard Teixeira v. Alameda County yesterday, March 14, 2017 regarding Alameda County's zoning law that amounts to a prohibition on any gun stores operating in the County.

The judges were appointed by:
Carter 1
Clinton 6
GW Bush 2
Obama 2

Hmmm. 9 to 2, Lib to possible Conserv.

Anyone have any doubt about the outcome? And I mean regardless of the arguments and legal precedents.

The mandate was issued today. The appeal is now officially over. Quoting one source: "Once the mandate issues then jurisdiction returns to the district court where this case is currently administratively stayed and will remain stayed until one side or the other asks for the stay to be lifted." I'm not sure if there is any time limit within which one or both parties have to ask for the stay to be lifted and the case to be retried in district court. Watch for another update in a few more months. Or tomorrow.

This ruling may be over, but we do have "light at the end of the tunnel" as there is the federal reciprocity bill which if passed, will allow concealed carry in Hawaii.  H.R.38 which was submitted by Rep. Hudson is written in a way (according to Hudson; I'm not good at "legalese") that it will allow both resident and non-resident carry permits to be valid in ALL states that have a permitting statute, of which Hawaii does (never mind that they don't ever issue to private citizens unless you're a LEO or armored security, etc.)  This bill, if passed will allow all Hawaii residents who have permits from other states to be able to carry outside of our homes here, provided your carry permit has your photograph on it (which disqualifies the current AZ permit which does not).  Of course, Hawaii may appeal it but if/when it gets to the Supreme Court, the State will lose now that Gorsuch will be the 9th justice on the Court. So, there is hope that this will happen in my lifetime after all. 

This ruling may be over, but we do have "light at the end of the tunnel" as there is the federal reciprocity bill which if passed, will allow concealed carry in Hawaii.  H.R.38 which was submitted by Rep. Hudson is written in a way (according to Hudson; I'm not good at "legalese") that it will allow both resident and non-resident carry permits to be valid in ALL states that have a permitting statute, of which Hawaii does (never mind that they don't ever issue to private citizens unless you're a LEO or armored security, etc.)  This bill, if passed will allow all Hawaii residents who have permits from other states to be able to carry outside of our homes here, provided your carry permit has your photograph on it (which disqualifies the current AZ permit which does not).  Of course, Hawaii may appeal it but if/when it gets to the Supreme Court, the State will lose now that Gorsuch will be the 9th justice on the Court. So, there is hope that this will happen in my lifetime after all. 

How old are you now and how long do you expect to live? Perhaps you are expecting one of the almost-daily promised "longevity breakthroughs" that we see in the press. Perhaps I'm "cynical", but I'd scale back the "living to 150" forecasts... 

There is a separate thread dedicated to Hudson's HR38. It hasn't been scheduled for a committee hearing yet. There are many opportunities for amendments of various kinds to the bill, including those that would reconcile it with Cornyn's bill (S446) in the Senate which requires that the person have a CCW license/permit from their HOME STATE in order to have national reciprocity in all other jurisdictions. No one knows how, or even if, these bills will be reconciled should they make it out of their respective committees and then pass floor votes in their separate chambers. Even if only Cornyn's version would get signed into law, several states have already indicated they will litigate to prevent it from being implemented in their state, so we are a long long way from carrying legally here in Hawaii. Hope I'm wrong and some weird natural event alters all human brains on the planet to make rational and evidence-based decisions and the next day all restrictions on self-defense (anywhere and in any manner) are abolished.

And then we have to remember our history:



In any event, I wonder if we will ever hear another peep re Baker?

Hawaii can easily change the law to no issue, then HR 38 would not be valid here.  We need a federally mandated national right to carry that has the same standing as paying federal tax.  A state does not need to require its residents to pay state taxes, but it cannot pass a law saying you don't have to pay federal taxes.  Or like a valid driver license, no state can say another state license is not valid here.

Hawaii can easily change the law to no issue, then HR 38 would not be valid here.  We need a federally mandated national right to carry that has the same standing as paying federal tax.  A state does not need to require its residents to pay state taxes, but it cannot pass a law saying you don't have to pay federal taxes.  Or like a valid driver license, no state can say another state license is not valid here.

!. That (no legal provision for CCW or carry in any manner) would violate the SCOTUS McDonald ruling (where Illinois' lack of a provision for CCW was ruled unconstitutional), but would likely/possibly involve another dozen years of (re)litigation.

2. I'm pretty certain that no matter what happens with any federal legislation (no matter how precisely, clearly and unambiguously worded)  re our right to legally carry in this state in some manner in some locations, that the state will litigate against it with all the taxpayer dollars they can muster (See: Chin justifies hiring expensive law firm to litigate state case against Trump "travel ban"). Those people (legislators, law enforcement, and executive branch) have no interest at all in people's rights, only in control and top-down imposition of their agenda... and that agenda does not include citizens taking responsibility for their own security and self-defense in any and all locations by any means necessary. That simply won't do. I'm with FBI on this one.

I already decided that when I get to the point in my life that I am no longer physically fit or disabled, I will cc regardless of what the law is.  But by that time I hope to be living in either UT, NV, or AZ, unless the law in Hawaii changes before then.  As we all know, all of us obey the law and the law says we are not allowed to defend ourselves and must flee from our homes if someone breaks in.

I already decided that when I get to the point in my life that I am no longer physically fit or disabled, I will cc regardless of what the law is.  But by that time I hope to be living in either UT, NV, or AZ, unless the law in Hawaii changes before then.  As we all know, all of us obey the law and the law says we are not allowed to defend ourselves and must flee from our homes if someone breaks in.

actually, we do not have to flee
hawaii has castle doctrine

actually, we do not have to flee
hawaii has castle doctrine

Hawaii's version includes:

§703-304  Use of force in self-protection.  (1)  Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.

     (2)  The use of deadly force is justifiable under this section if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.

* * * * *

So at 3 AM when you confront the person who has broken into your home, theoretically, at least, you'd have to ascertain the "intention" of the criminal (at least a trespasser), in a manner that would lead a jury to conclude that your "belief" was well-founded and thus your self-defense action justified. Perhaps you'd have to ask the person what his intention was... and if he said "To get a drink of water" (Yeah, right...), then you'd have no basis to use force. Does that make sense to anyone here? I like the law in Oklahoma (highlighted in another thread on the forum about a recent case), nicknamed the "Make My Day" law that states that any use of force (including lethal) is justified if some uninvited person breaks into your home while you are there. Why should the resident have to "prove" that he had a "reasonable" or "beyond a reasonable a doubt" belief that there was the potential to be harmed? But, then again, this is Hawaii...

Hawaii's version includes:

§703-304  Use of force in self-protection.  (1)  Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.

     (2)  The use of deadly force is justifiable under this section if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.

* * * * *

So at 3 AM when you confront the person who has broken into your home, theoretically, at least, you'd have to ascertain the "intention" of the criminal (at least a trespasser), in a manner that would lead a jury to conclude that your "belief" was well-founded and thus your self-defense action justified. Perhaps you'd have to ask the person what his intention was... and if he said "To get a drink of water" (Yeah, right...), then you'd have no basis to use force. Does that make sense to anyone here? I like the law in Oklahoma (highlighted in another thread on the forum about a recent case), nicknamed the "Make My Day" law that states that any use of force (including lethal) is justified if some uninvited person breaks into your home while you are there. Why should the resident have to "prove" that he had a "reasonable" or "beyond a reasonable a doubt" belief that there was the potential to be harmed? But, then again, this is Hawaii...

I was only responding to his statement that we have to flee...


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Hawaii can easily change the law to no issue, then HR 38 would not be valid here.  We need a federally mandated national right to carry that has the same standing as paying federal tax.  A state does not need to require its residents to pay state taxes, but it cannot pass a law saying you don't have to pay federal taxes.  Or like a valid driver license, no state can say another state license is not valid here.

This is what I used to think also, that HI would then go "no issue", but then they would again lose in SCOTUS.  SCOTUS already ruled in the MacDonald case that it was unconstitutional for Chicago to have a "no issue" law, which is why Illinois is now a "shall issue" state.  (Actually, MacDonald should already be a precedent so even the lower courts would have to rule against HI going "no issue".)  Frankly, if H.R.38 passes as is (that is allowing both resident & non-resident permits) it would be foolish for HI to not change their law to "shall issue" or at least begin to issue under the "may issue" law since that way the state gets the fees for CC permits, instead of other states that we get them from.  You know how it is in HI; ANYTHING for MONEY, especially since the state's finances aren't in the best of shape (thank you Dems).  I think what they would do is take Sen. Gabbard's bill, add some requirements and jack up the $10 fee to maybe $200.

I was only responding to his statement that we have to flee...

I know. I was only pointing out some of the "limitations" of the Hawaii version of Castle Doctrine. 

Ok, let's say 3 no good 20 something year olds were stealing stuff from my storage shed which is 75 ft from my house and I went to take video of them for LE.  They see me and threaten to kick my ass.  Do I have to run into my house and have them break in before I can shoot them?  Some areas of my property is more than a hundred yards from my house and although I am still climbing trees for a commercial tree company part time, at age 67, I may not be able to outrun  a 20 year old.  This is a very real scenario in Puna.  Couple of houses on my road got broken into last month. 

I know what I would do.  If there was sufficient distance I would yell, "Stop or I will shoot."  If they are too close I would just shoot.

Ok, let's say 3 no good 20 something year olds were stealing stuff from my storage shed which is 75 ft from my house and I went to take video of them for LE.  They see me and threaten to kick my ass.  Do I have to run into my house and have them break in before I can shoot them?  Some areas of my property is more than a hundred yards from my house and although I am still climbing trees for a commercial tree company part time, at age 67, I may not be able to outrun  a 20 year old.  This is a very real scenario in Puna.  Couple of houses on my road got broken into last month. 

I know what I would do.  If there was sufficient distance I would yell, "Stop or I will shoot."  If they are too close I would just shoot.

As I understand the law, you can carry anywhere on your property, no matter how large it is.  So, if you're shooting video of their faces and their actions and then they threaten to beat you up, you can then draw/show your weapon and tell them you're armed and will not hesitate to shoot so they need to stop and drop to the ground so you can call the cops.  If they run towards you and those guys are all physically larger than you (disparity of force due to size and number of assailants) you now have reason to fear for your life.  Warning them to stop (and them knowing you are armed) and if they continue towards you, they're now displaying opportunity to cause you harm; before they get within 10 yards of you, you should be able to shoot them to stop their attack.  Ordinarily, I would think the other 2 would stop immediately after hearing the shot go off; unless they're on drugs or something. If they keep advancing, keep shooting to stop them, not to kill, but just to stop them.  Then, you've fulfilled your obligation and can call 911 for immediate help (how long that would be in Puna is yet another story.)

  Then, you've fulfilled your obligation and can call 911 for immediate help (how long that would be in Puna is yet another story.)

My neighbor has called police 3 times that I know of, to report suspicious persons or vehicles.  Response times were ranged from 30 minutes to 2 hours.  We are also our own fire department.  We have an unmanned fire station staffed by volunteers.  If you have an out of control fire, the volunteers have to be rounded up, go to the fire station to get the truck, and then head to your house.  Hopefully your catchment tank is full and your fire insurance is up to date because there is no way your house will be saved.

As I understand the law, you can carry anywhere on your property, no matter how large it is.  So, if you're shooting video of their faces and their actions and then they threaten to beat you up, you can then draw/show your weapon and tell them you're armed and will not hesitate to shoot so they need to stop and drop to the ground so you can call the cops.  If they run towards you and those guys are all physically larger than you (disparity of force due to size and number of assailants) you now have reason to fear for your life.  Warning them to stop (and them knowing you are armed) and if they continue towards you, they're now displaying opportunity to cause you harm; before they get within 10 yards of you, you should be able to shoot them to stop their attack.  Ordinarily, I would think the other 2 would stop immediately after hearing the shot go off; unless they're on drugs or something. If they keep advancing, keep shooting to stop them, not to kill, but just to stop them.  Then, you've fulfilled your obligation and can call 911 for immediate help (how long that would be in Puna is yet another story.)

Three guys charging, possibly in poorly lit conditions, sure woulda been nice if the Hawaii Dems had at least given Gabbard's handgun magazine limit change from 10 to 17 bill a hearing. I'm just sayin'... why do the cops "need" "high capacity magazines" and we're criminals if we have one? 

In the meantime, wonder if we'll ever hear anything about the plans for Baker, or if there is some strategy in play regarding announcing seeking a new trial?

My neighbor has called police 3 times that I know of, to report suspicious persons or vehicles.  Response times were ranged from 30 minutes to 2 hours.  We are also our own fire department.  We have an unmanned fire station staffed by volunteers.  If you have an out of control fire, the volunteers have to be rounded up, go to the fire station to get the truck, and then head to your house.  Hopefully your catchment tank is full and your fire insurance is up to date because there is no way your house will be saved.

For those not familiar with the situation in Puna re "homeowner fire insurance"... the reason many rural Puna subdivisions now have their own "volunteer fire departments" is because prior to establishing such departments virtually no homeowners could get fire insurance because nearly all those rural homes were "too far" from a fire department station. These volunteer departments meet the insurance company requirements of "near enough" firefighting equipment so they will now issue fire insurance to those within the requisite distance of the "station". The fact that the volunteers need to get a call, get from their homes or location wherever they are when they get the call to the station, suit up, then get the truck to the fire itself, by which time the home will be fully engulfed or beyond... it's the distance that matters to the insurers, not the response time or quality of equipment and/or firefighting training. Gotta love the insurers. They go by the "numbers", even if they pick the wrong numbers to analyze, and thus miss the forest for the trees.

Three guys charging, possibly in poorly lit conditions, sure woulda been nice if the Hawaii Dems had at least given Gabbard's handgun magazine limit change from 10 to 17 bill a hearing. I'm just sayin'... why do the cops "need" "high capacity magazines" and we're criminals if we have one? 

In the meantime, wonder if we'll ever hear anything about the plans for Baker, or if there is some strategy in play regarding announcing seeking a new trial?

Typical Democrats; just like Pelosi & company are against guns yet it's funny their own security has guns. What hypocrites!  I don't know about a new trial for Baker; the best would be to just appeal to SCOTUS though I'm not sure how much money that's going to take.  With Gorsuch being confirmed, I'm certain they would overturn the 9th Circuit's decision (like they've done on so many times with the 9th).