Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 1 of 36 No. 12-17808 In The United States Court of Appeals For The Ninth Circuit ___________ George K. Young Jr. Plaintiff-Appellant, v. State of Hawaii et al. Defendants-Appellees. ___________ Appeal from a Judgment of the United States District Court For the District of Hawaii Civ. No. 12-00336 HG BMK The Honorable Judge Helen Gillmor United States District Court Judge ___________ Appellant’s Reply Brief ___________ ALAN BECK Esq. 4780 Governor Drive San Diego, California, 92122 (619) 971-0414 Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 2 of 36 TABLE OF CONTENTS 1. Argument…………………………………………………………………1 2. Every Case Cited Regarding Issues Not Raised In The Trial Court is Inapplicable To A 12(b) Appeal……………………………………………………1 3. Mr. Young’s Presumption of Waiver Has Never Been Rebutted………………1 4. Defendants Reliance on Guidelines For Security Guards Has No Relevance…………………………………………………………………………...1 5. Switchblades and Balisong Knives Are Less Deadly Than Legal Knives……..3 6. Defendants Have Given No Reason For the Restrictions At Issue……………...4 7. H.R.S. 134 Prohibits Transport Where There is No Government Interest………5 8. H.R.S. § 134-8 Is a Complete Ban on Types of Protected Classes of Arms…….8 9. THE ESSENTIAL SMALL ARMS…………………………………………………………………………..…25 10. An Analytical Model For Defining Class in Flow Chart Form………………27 11. Conclusion……………………………………………………………………29 i Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 3 of 36 TABLE OF AUTHORITIES CASES PAGE(S) 1. Cases 1. City and County of Denver v. Moore, 504 P. 2d 367, 369 - Colo: Court of Appeals, 2nd Div. (1972)………………………………………………..6 2. Ezell v. City of Chicago, 651 F. 3d 684, 708- Court of Appeals, 7th Cir.(2011)…………………………………………………………………………..7 3. Mobile, Jackson & Kan.City R.R. v. Turnipseed, 219 U.S. 35, 43 (1910)……..7 4. Professional Investment Properties of America, 955 F.2d 623, 625 (9th Cir.), cert. denied 113 S.Ct. 63 (1992)…………………………………….…………..…4 5. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990)…..……………..4 6. United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990)……………….………4 7. United States v. Miller 307 U.S. 174 (1939)…………………………….…..…10 Statues 1. Rule 12(b)(6)……………… ………………………………………..………..…4 2. 18 U.S.C. § 921(a)(24)…………………………………………………………11 3. 26 U.S.C. 5845 ………………………………………………………………...21 4. Violent Crime Control and Law Enforcement Act of 1994…...……………….10 ii Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 4 of 36 5. Hening’s Statutes at Large, 1757, pp. 93-116. (1809)………………………….22 6. HRS 134………………………………………...………………………........4,11 7. H.R.S. § 134-1…………………………………………………………………10 8. H.R.S. §134………………………………………………………..…….…8, 10 9. H.R.S. §134-23…………………………………………………………………..8 10. H.R.S. §134-24……………………………………………………………..…8 11. H.R.S. §134-25…………………………………………………………………8 12. H.R.S. §134-27..………………………………………………………...….......8 13. H.R.S. § 134-8…………………………………………………….….….…9, 13 14. 10 U.S.C. 311…………………………………………………………………24 15. 18 USC § 921(17) (a)…………………………………………………………23 14. 26 U.S.C § 5845 ……………………………………………………………...23 15. 32 U.S.C. § 313………………………………………………………………25 16. 18 USC § 921(17) (a)………………………………………………………25 Articles 1. Captain La Porte’s Store Williamsburg: Blunderbusses, Pistols with swivels, muskets, Cutlasses. – February 1780……………………………………………21. 2. (M.L. Brown, “Firearms in Colonial America 1492-1792, 143 (1980)………14 3.. Preeson Bowdoin: 2 Carriage Guns and 2 swivels, 2 blunderbusses, with muskets and cutlasses. – August 1779…………………………………………….24 iii Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 5 of 36 4. St. George Tucker: Several Small Arms, Pistols, Blunder Busses, Powder etc. – September 1779…………………………………………………………………21. 5. “The Facts on Teflon Bullets” The American Rifleman February 1989………29 6. W. Hays Parks, “Joint Service Combat Shotgun Program. The Army Lawyer 17 (Oct 1997)…………………………………………………………………………24 Web Sites 1. https://jkdunlimited.com/articles/by-burton-richardson/knife-drawing-speed- comparison-switch-blade-butterfly-knife-spyderco-cold-steel-common-pocket- knife/ …………………………………………………………………………….5 2. “The Design & Development of the M-4 Carbine” (http://www.specialoperations.com/Weapons/Featues/M4/Page_Two.htm)..........14 3. “Small Arms-Individual Weapons” (http://www.fas.org/man/dod- 101/sys/land/wsh2011/290.pdf)...............................................................................15 4. “Project Manager Soldier Weapons Briefing for NDIA” (http://www.dtic.mil/ndia/2010armament/TuesdayLandmarkBTamilio.pdf)....15,23 5. US Army Technical Manual TM 43-0001-28 Ammunition Data Sheets page 6- 6. http://www.inetres.com/gp/military/infantry/grenade/40mm_ammo-html.......23 7. http://www.mil-spec-industries.com/images/4/images/M576E1.pdf.................23 iv Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 6 of 36 Argument Every Case Cited Regarding Issues Not Raised In The Trial Court is Inapplicable To A 12(b) Appeal Defendants’ Contend this Court should not entertain issues not raised in the lower Court relying on the following authorities. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990); United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990); In re Professional Investment Properties of America, 955 F.2d 623, 625 (9th Cir.), cert. denied 113 S.Ct. 63 (1992). Every case cited deals with Plaintiffs who were afforded an evidentiary hearing. Mr. Young was not afforded one and is on appeal of a 12b(6) motion to dismiss. Mr. Young, while a pro se plaintiff, asked for an injunction of all of HRS 134. See ER 5. It is unclear how Defendants’ argument is tenable when the lower court addressed many of these issues in the opinion this appeal stems from. Accordingly all issues are proper including those raised in the various notices of supplemental authority. Mr. Young’s Presumption of Waiver Has Never Been Rebutted Defendants filed a motion to strike to a series of 28(j) letters earlier in this proceeding. Mr. Young plead a presumption of waiver. See Mr. Young’s Response to Defendants’ Motion to Strike at 15. “In a civil matter a rebuttable presumption can be created if a rational relation exists between an act and the presumption.” See 1 Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 7 of 36 Mobile, Jackson & Kan.City R.R. v. Turnipseed, 219 U.S. 35, 43 (1910). A rational relation exists between Defendants not promptly responding to the March 21st , 2013 Notice which explicitly states it contains a new argument and Defendants waiving their right to strike those notices. Defendants have never attempted to rebut this presumption. Accordingly, all notices of supplemental authority are proper and the motion to strike must be denied. However, Mr. Young concedes whether this Court accepts the requested affirmative relief of a supplemental brief is a separate issue. Accordingly, Mr. Young will reiterate the relief requested later in this brief. Defendants Reliance on Guidelines For Security Guards Has No Relevance Defendants’ rely on guidelines for the issuance of handguns permits for private investigators and security guards to claim there are guidelines for private citizens who are not engaged in these professions. Mr. Young is a retired infantryman (21 years) and currently a Tenrikyo Priest. As such Defendants take the position Mr. Young “is not entitled to due process” as their position is due process is a luxury not the right of every American. 2 Case: 12-17808 06/01/2013 ID: 8651308 DktEntry: 37 Page: 8 of 36 Switchblades and Balisong Knives Are Less Deadly Than Legal Knives Master Burton Richardson has conducted a study of a variety of blades in order to show there is not even a rational relationship to banning switchblades and balisong knives when other knives are legal. In candor to the Court, this was done per request of Counsel. I live in Hawaii where there is a ban on switch blades and butterfly (Filipino balisong) knives. Apparently, the reasoning behind these bans is that these types of knives are inherently more dangerous than other legal folding knives due to their rapid, one-hand deployment. I wondered if this distinction was accurate, so I tested the speed of presentation of five different blades: a Benchmade switch blade, a butterfly knife, a Spyderco Delica 4, a Cold Steel “Espada”, and a common pocket knife. The switch blade was legally owned by a military officer. The butterfly knife was a legal, dull-edged training version, while the others are legal to carry in Hawaii. To deploy a folding knife, one must first pull the blade from a pocket or carrying system before unfolding the knife. The old argument is that a switch blade or balisong is too dangerous to be entrusted to the public because a citizen can pull and quickly open the blade with one hand. But do these two actually have a decisive advantage on speed of deployment? To test the speeds, I started with the knife in my pocket and my hand grasping the knife in a manner conducive to opening. The person timing gave the command “draw” while pushing the start button on the stopwatch. The timer hit stop after the blade clicked into the locked position. In reality, a little extra time would be required to achieve a functional grip, but just timing until the locked position was empirically more accurate since the timer would have to visually judge when a proper grip was achieved. Please note that there is certainly some variance due to the impossibility of having the exact same draw stroke each time, but that variance is minimal. I did only four draws for each knife as I found that the difference per draw was very slight. Also, I did not go at absolute full speed. I did smooth, efficient draw.