Filed Oppposition to en Banc Baker

No. 12-16258

In The United States Court of Appeals

For The Ninth Circuit ___________

CHRISTOPHER BAKER,

Plaintiff-Appellant,

v.

LOUIS KEALOHA, ET AL.,

Defendants-Appellees.

___________

On Appeal from the United States District Court

For Hawaii, Honolulu

No. 1:11-cv-00528-ACK -KSC

The Honorable Alan C. Kay

United States Senior District Court Judge

___________

OPPOSITION TO PETITION FOR

REHEARING OR REHEARING EN BANC

___________

Richard L. Holcomb Alan Beck

Holcomb Law, LLLC 4780 Governor Drive

1136 Union Mall San Diego, CA 92122

Suite 808 (619) 971-0414

Honolulu, HI 96813

(808) 545-4040

Attorneys for Plaintiff-Appellant

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 1 of 24

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Peruta applies rather than contravenes Heller. . . . . . . . . . . . . . . . 5

B. This decision survives in any Circuit. . . . . . . . . . . . . . . . . . . . . . . 8

C. Peruta and Chovan are not at odds. . . . . . . . . . . . . . . . . . . . . . . . . 10

D. Irreparable harm is not at issue. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


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TABLE OF AUTHORITIES

Reported Cases

District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . 1,

5-6,

7, 9,

11,

Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc.,

109 F.3d 1394 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Espanola Jackson v. San Francisco, __ F. 3d __ (9th Cir. 2014) . . . . . . . . . 13

Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) . . . . . . . . . . . 8-9

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) . . . . . . . . . . . . . . . . . . 1, 6

Miss Universe, Inc. v. Flesher, 605 F.2d 1130 (9th Cir. 1979) . . . . . . . . . . . . 15

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . 9

Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014) . . . . . . . . . . . 3, 13

Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . 9

Robertson v. Baldwin, 165 U.S. 275 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

San Francisco Veteran Police Officers Ass’n v.

City & Cnty. of San Francisco, __ F. Supp. 2d __ (N.D. Cal. 2014) . . . . . . . 13

United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) . . . . . . . . . . . . . . . . 4, 11,

12, 13

Winter v. Natural Res. Def. Council, Inc., 55 U.S. 7 (2008) . . . . . . . . . . . . . . 14-15


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Woollard v. Gallagher,712 F.3d 865 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . 9

Constitutional Provisions, Statutes, and Rules

Haw. Rev. Stat. § 134-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. § 134-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. § 134-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6,

7, 12,

Haw. Rev. Stat. § 134-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. § 134-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. § 134-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. § 134-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Other Authorities

11A Charles Alan Wright et al.,

Federal Practice & Procedure § 2948.1 (2d ed. 1995) . . . . . . . . . . . . . . . . . . 15


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I. INTRODUCTION

Mr. Baker enjoys a fundamental constitutional right to bear arms. This right

does not extinguish at the threshold of his front door. Indeed, the Second

Amendment guarantees the right to bear firearms for protected purposes, such as

self-defense, militia training, and hunting which cannot be accomplished within the

confines of a home. This was all previously decided in District of Columbia v.

Heller, 554 U.S. 570, 584 (2008) (“we conclude that this natural meaning [of the

term ‘bear’ in the Second Amendment] was also the meaning that ‘bear arms’ had

in the 18th

century. In numerous instances, ‘bear arms’ was unambiguously used to

refer to the carrying of weapons outside of an organized militia”). Indeed, Heller

plainly held that “bear arms” means to “wear, bear, or carry . . . upon the person or

in the clothing or in a pocket, for the purpose . . . of being armed and ready for

offensive or defensive action in a case of conflict with another person.” Id. at 584.

The Court justified its conclusion through extensive historical analysis, Id. at 584-

87, and then specifically rejected each of the dissent’s reasons for urging the term

“bear” to be interpreted as limited to military service. Id. at 584-90. Accordingly,

the core of the Second Amendment is not to possess a firearm solely within the

home where the need is most acute as urged by Petitioners, but rather to possess a

firearm for the purpose of self-defense. Id. at 571. This right is applicable to the

states. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).


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Nevertheless, Hawaii has maintained a stringent system of prior restraint

designed to limit the exercise of the fundamental constitutional right to bear arms –

a prior restraint that has proven so successful that there is effectively no right of an

average citizen to bear arms in Hawaii. This prior restraint is accomplished

through the wholesale prohibition on the bearing of arms.

The only exception to this wholesale prohibition is found in Section 134-9 of

the Hawaii Revised Statutes. And although Petitioners conveniently omit key

provisions of this statute, Pet. 1, 3-4, the statute contemplates the issuance of carry

permits only when an applicant shows that his or hers is an “exceptional case” and

when the applicant can show “reason to fear injury to [his or her] person or

property.” Section 134-9 further vests unbridled discretion in the Chief of Police

to determine whether a permit should issue without providing any judicial or even

administrative review to aggrieved applicants. Moreover, it fails to define what

constitutes an “exceptional case” or what proof an applicant must present to satisfy

the Chief that the applicant has reason to fear such injury.

Thus, the Chief is left to arbitrarily choose those applicants that may

exercise their rights and those that may not. In practice, this is an easy decision as

all applications submitted by those who are not “engaged in the protection of life

and property,” i.e., security guards or armored truck attendants, are routinely


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denied without explanation as was Mr. Baker’s. ER 94-105 (showing all permits

issued were “security” related and none were issued for “citizens”).

While the government may impose reasonable time, place, and manner

restrictions, the current restrictions are plainly unconstitutional. Yet, this Court

need not decide the propriety of each facet of the statute in this case. This appeal

was an interlocutory appeal of an application for preliminary injunction.1 And,

although Mr. Baker framed the dispositive issue as the lower court having both

abused its discretion and/or “based its decision on an erroneous legal standard,” see

Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1397, n. 2

(9th Cir. 1997), Brief of Appellant, p. 2, the panel, relying on Peruta v. County of

San Diego, 742 F.3d 1144 (9th Cir. 2014) correctly found that:

[i]n light of our holding in Peruta, the district court made an error of

law when it concluded that the Hawaii statutes did not implicate

protected Second Amendment activity.

Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __ Fed.Appx. __ , 2014

wl 1087765 at *1 (9th Cir. Mar. 20, 2014) (unpublished) (attached to petition).

Accordingly, this case should be remanded to the lower court, to allow that court to

1 Mr. Baker informed the parties and the lower court that he would no longer seek

a preliminary injunction before Petitioners filed the instant Petition. However, the

overall litigation is still pending as Mr. Baker continues to seek the remaining

relief requested in the Complaint.


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apply the correct law, i.e., that Second Amendment rights are not extinguished at

the threshold of the front door.2

II. ARGUMENT

Nevertheless, Petitioners urge this Court rehear this case for three equally

spurious reasons:

A. Ignoring the plain holding and succinct meaning of Heller, Petitioners urge this

Court to find somehow find that Peruta, upon which this decision relies, somehow

contradicts Heller. Peruta is entirely consistent with Heller and the panel properly

applied Heller in reaching its finding in both Peruta and in this case;

B. While again misconstruing Hawaii as a “good cause” state and again ignoring

the record that demonstrates an absolute ban, Petitioners somehow contend that

this decision “publicly conflicts” with decisions from this Court’s sister circuits.

Nevertheless, if the analysis of any of the Circuit Courts that have decided this

issue were applied, the panel’s holding in this case would survive.

C. Petitioners also claim that Peruta, supra. “conflicts” with United States v.

Chovan, 735 F.3d 1127 (9th Cir. 2013). Peruta applies rather than conflicts with

Chovan. Moreover, Chovan analyzed a reasonable time, manner, or place

restriction and not an absolute ban as is challenged in this case.

2 Notably, the lower court also recognized the plain meaning of Heller. The court

acknowledged that Mr. Baker “emphasi[zed] that the Supreme Court dedicated

eight pages [in Heller] to analyzing the meaning of the phrase ‘bear arms,’

concluding that it ‘is the right to carry weapons in case of confrontation.’” ER

237. But the court “join[ed] other courts in awaiting direction from the Supreme

Court with respect to the outer bounds of the Second Amendment,” instead of

making a decision consistent with Heller. ER 236-37 n. 20.


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Further, although not enumerated in its proposed reasons initially set forth in

the Petition, Petitioners claim that Mr. Baker failed to show irreparable harm. This

does not justify a rehearing of this case, even if it were true. Fed.R.App.P., Rule

35. Nonetheless, because the lower court was unwilling to apply Heller, no

appropriate Winter analysis has ever been conducted.

Each of these issues is discussed below.

A. Peruta applies rather than contravenes Heller.

Petitioners erroneously insist that Heller stands for the proposition that the

“core of the Second Amendment was the right to carry in the home.” Pet., p. 5.

Petitioners’ entire argument rests upon this disingenuous reading of Heller,

wherein Petitioners urge this Court to ignore eight pages of analysis and instead

find that Heller’s admonition that the right to defend oneself is “most acute” in the

home somehow undermines the Second Amendment’s dual guarantee that citizens

may keep and bear firearms. This Court should affirm its consistent rejection of

this specious argument and deny rehearing for at least three reasons.

First, Petitioners simply misstate Heller. Heller neither held nor “repeatedly

emphasized that the core of the Second Amendment was the right to carry in the

home.” Pet., p. 5. To so hold or even emphasize would eviscerate the Second

Amendment’s dual guarantee that citizens may keep and bear arms. Accordingly,

three separate times Heller specifically defined the “core” or “central component”


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of the Second Amendment as the right of self-defense. Heller, 554 U.S. at 599,

628, 630 (emphasis added). Even if Petitioners could somehow persuade this

Court that Heller is somehow unclear as to this holding, Petitioners cannot possibly

explain the plain description of the Heller holding in McDonald: “in [Heller], we

held that the Second Amendment protects the right to keep and bear arms for the

purpose of self-defense, and we struck down a District of Columbia law that

banned the possession of handguns in the home.” McDonald, 130 S.Ct. 3026

(emphasis added). Clearly, Heller held that the core protection of the Second

Amendment was that of self-defense and the so-called “emphasis on the home” is

merely a byproduct of the facts that were being reviewed in Heller – facts not

present here.

Second, Petitioners note that Peruta did not disturb California’s

unchallenged restrictions on open carry. Pet., p. 7. Much like San Diego (which

was apparently inconsistent with the remainder of California), Hawaii’s legislature

chose only to permit open-carry permits to citizens “engaged in the protection of

life and property,” i.e., armored car attendants and security guards. Haw. Rev.

Stat. 134-9. Average citizens, who are not so employed but nevertheless wish to

exercise their inherent right to defend themselves, are restricted to concealed carry

permits. Id. Thus, when the Chief effectively imposes a ban on concealed carry

permits, as this record demonstrates, there is no right for average citizens to bear


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firearms whatsoever. Such a ban is inconsistent with any strained reading of

Heller or any other authority that genuinely applies Heller.

If Heller could conceivably be read to condone the extinguishment of

Second Amendment rights at the threshold of the front door, which it cannot, why

would the Court possibly clarify that prohibitions “forbidding the carrying of

firearms in sensitive places such as schools and government buildings” are likely

reasonable? See Heller, 554 U.S. at 626. Clearly, sensitive places cannot

encompass all public places without abrogating the right altogether. And, if the

Court had intended to abrogate the right in all public places, there is no feasible

explanation for why the Court would have distinguished “sensitive” from “non-

sensitive” places and even less explanation as to why it would have devoted eight

pages of the opinion to the conclusion that “bear” means to carry. Yet, absent the

issuance of a permit pursuant to Section 134-9, permits which are not issued as a

matter of course, Hawaii has enacted criminal statutes prohibiting the carrying of

operable firearms, ammunition, and even non-lethal weapons in all public places.

See Haw. Rev. Stat. §§ 134-2, 134-5, 134-9(c), 134-23, 134-24, 134-25, 134-26.

Clearly, absent some meaningful exception, these prohibitions (at least insofar as

firearms are concerned) are neither consistent with Heller nor the plain language of

the Second Amendment.


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Finally, insofar as the Petitioners contend that Peruta stands for the

proposition that the Second Amendment requires conceal carry where open carry is

otherwise available, Mr. Baker takes no position on that issue. While such a

challenge misreads Peruta, it is wholly inapplicable to this case. Mr. Baker did not

insist that he must be issued a concealed carry permit where an open carry permit

may have otherwise been available. This Court correctly recognized the extent of

Mr. Baker’s challenges, stating “Baker sought an order enjoining the enforcement

of a number of Hawaii’s firearms statutes or, alternatively, directing the defendants

to issue a license to Baker allowing him to carry (either concealed or openly)

operable firearms”. Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __

Fed.Appx. __ , 2014 wl 1087765 at *1 (9th Cir. Mar. 20, 2014) (unpublished)

(attached to petition). And, as stated above, Hawaii chose to limit open carry

permits to security guards or armored car attendants, leaving concealed carry as the

alternative for the average citizen.

The petition should be denied.

B. This decision survives in any Circuit.

Petitioners claim that Peruta’s holding that American citizens do not have to

show good cause to defend their lives should be overturned. If so, this Court would

join three other Circuit Courts who have upheld so-called “good cause”

requirements. Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012),


9

cert. denied, 133 S. Ct. 1806 (U.S. 2013); Drake v. Filko, 724 F.3d 426, 431 (3d

Cir. 2013), cert. pending, No. 13-827; Woollard v. Gallagher,712 F.3d 865, 882

(4th Cir. 2013), cert. denied, 134 S. Ct. 422 (U.S. 2013). Yet, all three of those

Sister Circuits found that there is a right to keep and bear arms outside the home.

Their holdings were derived from an application of intermediate scrutiny in

determining the constitutionality of the respective statutes at issue. The Seventh

Circuit has also held the right to bear arms extends beyond the threshold of the

front door in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). Thus, every Circuit

Court in the nation that has ruled on this issue has found there is right to bear arms

outside the home.

Further, the Tenth Circuit, reviewing a challenge by a non-resident who

demanded to carry a concealed firearm, found that the Plaintiff had waived any

challenge to an open carry restriction. Peterson v. Martinez, 707 F.3d 1197, 1211-

12 (10th Cir. 2013). While the Tenth Circuit found no affirmative right to conceal

carry, the dicta upon which the Court relied (derived from Robertson v. Baldwin,

165 U.S. 275 (1897)) plainly alludes to the common law tradition that open carry

was presumptively permissible.3 Id. at 1210 (quoting Robertson, 165 U.S. at 281-

82). Thus, had Mr. Peterson asserted rather than waived his challenge to the

3 Such dicta is also present in Heller. 554 U.S. at 626.


10

Denver ordinance, his result would have been identical to that of Peruta, where the

challenge to open carry was clearly not waived.

Accordingly, the result in this case is not only consistent with those other

Circuit Courts, but would also remain the same had this panel specifically adopted

any of those other rulings. Hawaii allows neither open nor concealed carry without

a permit – permits which are not issued to the average citizen. This panel found,

consistent with Heller, in both Peruta and in this case that the right extends outside

the home. Even more narrowly, in this case, the holding is simply that Hawaii’s

prohibitions do “implicate the Second Amendment.” Christopher Baker v. Louis

Kealoha, et. al., No. 12-16258, __ Fed.Appx. __ , 2014 wl 1087765 at *1 (9th Cir.

Mar. 20, 2014) (unpublished) (attached to petition). And therefore, the lower

court in this case applied an erroneous legal standard. Id. This decision would

survive even if this Court decided to adopt any other possible standard as all courts

have held the right extends beyond the home.


C. Peruta and Chovan are not at odds.

Preliminarily, Petitioners’ entire argument pertaining to this issue relies

entirely upon two false pretenses: 1) that Chovan somehow limited the Second

Amendment to the home; and 2) that this case would somehow be affected by the

purported “confusion” Peruta created by finding “that Second Amendment rights


11

are ‘destroyed,’ rather than merely regulated, by a regime that allows firearms to

be openly carried in many unincorporated places and carried concealed by lawful

permit holders.” Pet. p. 11. Each of these false pretenses is discussed below.

First, Chovan did not limit the Second Amendment to the home. Chovan

analyzes the federal criminal prohibition disallowing citizens convicted of

domestic violence misdemeanors from possessing firearms both outside and inside

their homes. Chovan, 735 F.3d at 1129-30 (citing 18 U.S.C. § 922(g)(9)).4 This

Court concluded “that by prohibiting domestic violence misdemeanants from

possessing firearms, § 922(g)(9) burdens rights protected by the Second

Amendment.” Id. at 1137. And, although the Court did cite only the phrase “the

right of law-abiding, responsible citizens to use arms in defense of hearth and

home” from Heller, it was necessary to extract this phrase from Heller to reach the

Court’s ultimate conclusion, i.e., that Mr. Chovan was not law-abiding or

responsible. Id. at 735 F.3d at 1138 (quoting Heller, 554 U.S. at 635).

It was not necessary in Chovan, however, to further extrapolate the fact that

Heller definitively concluded that the “core” and “central component” of the

Second Amendment is for the purpose of self-defense and/or that Heller also

clearly found that “bearing” or carrying outside the home is also protected.

Chovan could never avail himself of the rights to keep or to bear arms due to

4 Guns were, in fact, seized from Chovan’s home. Id. at 1131.


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Congress’ intent that domestic violent misdemeanants be treated more harshly than

felons who in some cases may have that right restored. Chovan, 735 F.3d at 1132-

33. Moreover, the phrase “hearth and home” does not implicate a limitation to the

confines of a home. Indeed, soldiers went out to protect “hearth and home,” a

phrase still used to refer to the home and family. See

http://www.mamillandictionary.com/us/dictionary/american/hearth.

As to their second pretense, Petitioners, again, misstate the “regime” that

the panel confronted in Peruta. And, more importantly to Mr. Baker, certainly

such a “regime” is not present in Hawaii. Again, where California (at least outside

of San Diego) may allow open carry while restricting concealed carrying of

firearms, Hawaii allows open carry permits only to those “engaged in the

protection of life and property,” leaving average citizens to plead with the Chief

for a concealed carry permit. Haw. Rev. Stat. 134-9. Moreover, average citizens

must show that theirs is “an exceptional case” and “show reason to fear injury to

the [his or her] person or property.” Haw. Rev. Stat. § 134-9. No citizen was able

to meet this onerous and undefined burden to the Chief’s satisfaction. ER 94-105.

Nevertheless, Peruta applied rather than departed from Chovan. In sum, the

Chovan analysis requires the Court to first determine whether or not the restriction

substantially burdens the Second Amendment and, if so, the Court may apply

intermediate scrutiny. Chovan, 735 F.3d at 1138-39. However, consistent with


13

Heller, if a restriction totally destroys Second Amendment rights, then no level of

scrutiny can justify the restriction and an application of intermediate scrutiny is

obviously unnecessary. See Peruta, 742 F.3d at 1168 (noting that Heller dispensed

with means-end scrutiny in striking a ban on handguns). This is entirely consistent

with Chovan, which also allows the avoidance of means-end scrutiny at “step one”

if, instead of totally destroying the Second Amendment, the restriction does not

implicate the Second Amendment at all. Chovan, 735 F.3d at 1136. It makes no

sense to apply means-end scrutiny where a right is not implicated or, conversely,

where no level of scrutiny could possibly justify the restriction.

Petitioners cite San Francisco Veteran Police Officers Ass’n v. City & Cnty.

of San Francisco, __ F. Supp. 2d __, 2014 WL 644395 (N.D. Cal. 2014) and its

sister case as examples of “confusion.” Such confusion is unwarranted as this

Court has consistently applied the same standard not only in Chovan and Peruta,

but most recently in Espanola Jackson v. San Francisco, No. 12-17803, 2014 wl

1193434, __ F. 3d __ (9th Cir. Mar. 25, 2014) (attached). In Jackson, this Court

determined that two separate regulations implicated the Second Amendment, and

then analogizing the regulations to “time, manner, and scope” First Amendment

regulations, this Court upheld each regulation after applying intermediate scrutiny.

2014 wl 1193434 at *7-8, 12-13.


14

This Court has consistently applied the same standard in each of these cases.

It is difficult to discern how rehearing or en banc review of this case, where the

same standard would again be applied with the same result, would mitigate the

purported “confusion.” Notably, in this case, the panel simply found that the first

prong of the Chovan test was met. Due to the posture of this case, it did not

continue its analysis by applying the second prong of the test. The petition should

be denied as the lower court is properly charged with that duty.

D. Irreparable harm is not at issue.

It is highly doubtful that in any circumstance, a failure to show irreparable

harm would justify rehearing or especially en banc review when the case has been

remanded to the lower court to make that determination. Indeed, in this case, that

issue was not even broached by the majority of this panel. The majority carefully

and specifically held:

the district court made an error of law when it concluded that the

Hawaii statutes 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.

Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __ Fed.Appx. __ , 2014

wl 1087765 at *1 (9th Cir. Mar. 20, 2014) (unpublished) (attached to petition).

The panel did not order the lower court to issue a preliminary injunction. It

did not rule on whether Mr. Baker satisfied the irreparable harm prong (or any


15

other prong) of the test articulated in Winter v. Natural Res. Def. Council, Inc., 55

U.S. 7, 19 (2008). It only held the lower court applied an erroneous legal standard

as to whether the right to keep and bear arms extends beyond the threshold of the

front door.

While the application of the erroneous legal standard dictated the remainder

of the lower court’s analysis of the Winter test, ER 247-56, remand was clearly

proper to permit the lower court to make the appropriate findings, should Mr.

Baker further pursue such relief. See Miss Universe, Inc. v. Flesher, 605 F.2d

1130, 1133 (9th Cir. 1979) (“[t]he Court of Appeals does review factual findings;

however, we do not generally serve as fact-finders of first instance. . . . [Because

parties have not had an opportunity to develop a complete record at the granting or

denial of a preliminary injunction,] [t]hat is one reason why this court generally

limits its review to the more general determination as to whether the court below

abused its discretion.”).

Despite Mr. Baker’s belief that irreparable harm should be presumed as his

fundamental rights are at stake, Elrod v. Burns, 427 U.S. 347 (1976); 11A Charles

Alan Wright et. al., Federal Practice and Procedure § 2948.1 (2d ed. 1995), the

lower court is the proper forum in which that determination should be made. If

either party is aggrieved by such finding, that party may seek relief from this

Court. But, in bringing this appeal, neither party raised the issue of irreparable


16

harm. Indeed, Mr. Baker specifically argued that the irreparable harm prong of

Winter “w[as] dependent upon the initial erroneous finding” that there was no right

to bear arms outside the home and “[a]s a result, no meaningful Winter analysis

was conducted.” Brief of Appellant, p. 35. No cross-appeal was filed.


III. CONCLUSION

Petitioners request rehearing or rehearing en banc “in order to revisit

Peruta.” Pet., p. 1. Peruta is a narrowly tailored constitutional challenge to a

California county’s (San Diego) good cause policy. This case is a constitutional

challenge to a number of state statutes and a police chief’s subjective policy which,

together, operate as an absolute ban on open or concealed carrying of firearms in

Honolulu. Procedurally, the posture of this case is very different than that of

Peruta. These are simply two very separate appeals dealing with two different

prohibitive regulatory schemes in two separate jurisdictions. As evidenced by the

caption of the Petition, Petitioners make little effort to distinguish Hawaii from

California and this case from Peruta or from Richards, et. al. v. Prieto et. al., No.

11-16255 (which also has a very similar petition pending before this Court). See

Petition Caption (“On Appeal from the United States District Court for the

Northern District of California”).


17

Moreover, Peruta is consistent with both Heller and Chovan. And even if,

somehow, Peruta were overturned, the limited holding of this case, i.e., that

Hawaii’s prohibitions and licensing scheme “implicate the Second Amendment”

survives the analysis of any the decisions of this Court and/or this Court’s

applicable sister circuits. The petition should be denied and this case remanded.

Respectfully submitted this 2nd day of May, 2014.

s/Richard L. Holcomb

Richard L. Holcomb (HI 9177)

s/Alan Beck

` Alan Beck (HI 9145)

Attorneys for Plaintiff Christopher Baker


18

CERTIFICATE OF COMPLIANCE

TYPE-VOLUME LIMITATIONS, TYPEFACE REQUIREMENTS,

AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of this Court’s because this

brief contains 3,947 words, excluding the parts of the brief excluded by Fed. R.

App. P. 32(a)(7)(B)(iii). I used the “word count” feature of Microsoft Word in

obtaining this calculation.

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has

been prepared in proportionately spaced typeface using Microsoft Word 2007 in 14

point Times New Roman font.

s/ Richard L. Holcomb

Richard L. Holcomb

Counsel for Appellant

Dated: May 2, 2014.


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CERTIFICATE OF SERVICE

On this, the 26th day of June 2012, I served the foregoing Brief by electronically

filing it with the Court’s CM/ECF system, which generated a Notice of Filing and

effects service upon counsel for all parties in the case.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this the 2nd

day of May, 2014

s/Alan Beck

Alan Beck


i


Filed Oppposition to en Banc Baker

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Transcript of Filed Oppposition to en Banc Baker