The U.S. Court of Appeals for the 9th Circuit today held that the Second Amendment does not guarantee a right to openly carry firearms for self-defense. Combined with a 2016 decision involving concealed firearms, the ruling means that the Second Amendment does not extend beyond the home for residents of the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
According to the majority opinion by Judge Jay Bybee, history shows that legal restrictions on carrying unconcealed firearms, including virtual bans like Hawaii’s, are the sort of “longstanding prohibitions” that the Supreme Court has suggested the Second Amendment allows. The four dissenters think history shows nothing of the sort.
“The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms,’” Judge Diarmuid O’Scannlain writes in a blistering dissent joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson. “Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self-defense in any other place….We now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.” The majority’s reasoning, O’Scannlain says, “reduces the right to ‘bear Arms’ to a mere inkblot.”
The case involves a challenge to Hawaii’s highly restrictive carry permit policy, which requires that applicants demonstrate “the urgency or the need” to carry unconcealed firearms, that they have “good moral character,” and that they be “engaged in the protection of life and property.” As interpreted by Hawaii County (the “Big Island”), those standards limit open-carry permits to “private detectives and security guards.”
Hawaii’s concealed-carry policy, which was not at issue in this case, is similarly restrictive. It requires a permit applicant to satisfy the county police chief that he represents “an exceptional case” and that he has “reason to fear injury” to his “person or property.”
George Young, a Hawaii County resident, unsuccessfully applied for a carry permit twice in 2011, citing a general need for self-defense. He argued that Hawaii’s law was inconsistent with the Second Amendment.
A federal judge ruled against Young in 2012, but a three-judge 9th Circuit panel that included O’Scannlain and Ikuta overturned that decision in 2018. Drawing a distinction between concealed carry and open carry, O’Scannlain and Ikuta concluded that “the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.” After the 9th Circuit agreed to rehear the case, seven of the 11 judges assigned to it voted to uphold Hawaii’s law.
In the landmark 2008 case District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right to keep guns in the home for self-defense. Although the Court did not address the question of whether the amendment also applies outside the home, it said “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
That exception for “longstanding prohibitions” is the basis for the 9th Circuit’s ruling in Young v. Hawaii. ”After careful review of the history of early English and American regulation of carrying arms openly in the public square,” the majority says, “we conclude that Hawai’i's restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment.”
Bybee reviews English restrictions on the right to bear arms in public and argues that “the colonists shared the English concern that the mere presence of firearms in the public square presented a danger to the community.” He cites restrictions in New Jersey, Massachusetts, and New Hampshire, although he also notes that some colonies “not only permitted public carry, but mandated it.”
After the Constitution was ratified, states initially were not bound by the Bill of Rights, but their laws were governed by state constitutional provisions similar to the Second Amendment. During this period, Bybee says, “states continued to adopt laws that restricted the public carrying of arms.” He cites further examples of statutes, cases, and commentaries from the 19th and 20th centuries. The majority concludes that “our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square.”
As to the extent of that power, the 9th Circuit says “the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly.” It adds that “we need go no further than this, because the Hawai’i firearms licensing scheme Young challenges only applies to ‘a pistol or revolver and ammunition therefor.’”
The four dissenters strongly disagree with the majority’s historical analysis. By their reckoning, “the critical sources on the meaning of the Second Amendment—its text, its historical interpretations by the commentators and courts most proximate to the Founding, and its treatment by early legislatures—unequivocally demonstrate that the Amendment does indeed protect the right to carry a gun outside the home for self-defense, even if that right might be subject to some regulation at its edges.”
In reaching the “startling conclusion” that “a total ban on carrying a handgun outside the home does not implicate the Second Amendment right to bear arms whatsoever,” O’Scannlain et al. say, the majority fails to show that its reading is consistent with the amendment’s text, “that early American cases interpreted the Amendment in this way,” or “even that open public carry was regularly and uncritically subject to legislative prohibitions across our country’s early history.” Instead, “the majority has declared that a state may constitutionally forbid all public carry of firearms, based on the utterly inconsequential fact that the lawful manner of open public carry has historically been subject to modest regulation (but never to outright prohibition).”
You can judge for yourself who has the better of this historical argument between Bybee and O’Scannlain (although be warned that the two opinions together consume 180 pages). But O’Scannlain is surely right that the 9th Circuit’s decision is an outlier. While some appeals court have overturned restrictions on the right to bear arms in public and others have upheld them, the 9th Circuit is the only one to say that right does not exist. Some clarity from the Supreme Court would be nice.
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