In The United States Court of Appeals For The Ninth Circuit

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 1 of 24 No. 12-16258 In The United States Court of Appeals For The Ninth Circuit CHRISTOPHER BAKER, v. Plaintiff-Appellant, 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: 2 of 24 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 i

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 3 of 24 Reported Cases TABLE OF AUTHORITIES 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 ii

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 4 of 24 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 iii

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 5 of 24 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 18 th 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). 1

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 6 of 24 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 2

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 7 of 24 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. 3

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 8 of 24 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. 4

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 9 of 24 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 5

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 10 of 24 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 6

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 11 of 24 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 nonsensitive 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. 7

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 12 of 24 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), 8

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 13 of 24 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. 9

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 14 of 24 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. The petition should be denied. 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 10

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 15 of 24 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. 11

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 16 of 24 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 12

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 17 of 24 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. 13

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 18 of 24 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 14

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 19 of 24 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 15

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 20 of 24 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. The petition should be denied. 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 ). 16

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 21 of 24 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 17

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 22 of 24 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. 18

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 23 of 24 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 2 nd day of May, 2014 s/alan Beck Alan Beck 19

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