James R. Browning U.S. Court of Appeals Building, May 2008
The Ninth Circuit U.S. Court of Appeals has ruled that the right to open carry a firearm in public for self-defense is protected under the Second Amendment, striking down a Hawaii rule stipulating that guns be kept inside the home.
Ninth Circuit Ruling
According to Reuters, a three-judge panel ruled in a two-to-one decision that the state of Hawaii violated the Second Amendment rights of plaintiff George Young when it twice rejected his application for a permit to carry in public back in 2011.
Hawaii, a may-issue state, has some of the strictest gun laws in the country. As the Washington Free Beacon notes, Hawaii didn’t issue a single carry permit in 2017 or 2016.
“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in the majority opinion. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.’ While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.'”
Judge O’Scannlain’s Opinion
In 2016, the Ninth ruled that the Second Amendment doesn’t guarantee a right to carry concealed in public in Peruta v. San Diego. Open carry, however, is guaranteed under the Second Amendment, according to O’Scannlain.
“The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection, see Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) (en banc), it was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense,” O’Scannlain writes. “Analyzing the text of the Second Amendment and reviewing the relevant history, including founding-era treatises and nineteenth century case law, the panel stated that it was unpersuaded by the County’s and the State’s argument that the Second Amendment only has force within the home. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. The panel held that because Hawaii law restricted plaintiff in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment.
“In determining the appropriate level of scrutiny to apply to section 134-9, the panel first held that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment,” O’Scannlain continues. “The panel stated that restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii’s limitation on the open carry of firearms to those ‘engaged in the protection of life and property’ violated the core of the Second Amendment and was void under any level of scrutiny.”
Kaena Horowitz, deputy corporation counsel for the County of Hawaii, said the state is mulling its options in the wake of the Ninth Circuit decision.
“The Young decision is unfortunate as it invalidates Hawaii law designed to protect the safety and well-being of the people of Hawaii,” he said. “Carrying firearms in public clearly poses a significant danger to the safety of our community and greatly increases the risk that police officers confront.”
NRA-ILA executive director Chris Cox praised the decision.
“This is a critical issue for law-abiding gun owners who want to exercise their right to self-defense outside the home,” Cox said. “The Second Amendment clearly protects the right to bear arms in public. … This is an important ruling that confirms what NRA members already know – the right to keep and bear arms shall not be infringed.”
Charles C.W. Cooke over at the National Review says the court is now in a bit of a bind as a result of this ruling.
“This is interesting indeed,” Cooke writes. “A couple of years ago, the Ninth ruled en banc that the Constitution does not protect concealed carry, but left open the possibility that it protects open carry (which it rather obviously does). Now, a Ninth Circuit panel has ruled that the Constitution does indeed protect open carry.
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