In a 7-4 decision, the Ninth Circuit Court of Appeals ruled there is no constitutional right to bear arms in public. The en banc ruling in the case, Young v. Hawaii, set aside a 2-1 panel decision that found Hawaii's system for permitting open carry of firearms was an unconstitutional violation of the Second Amendment.
How we got here: The Peruta Case
The Young decision was seen as a follow-on to the Peruta v. San Diego County case which was ultimately denied certiorari at the Supreme Court in 2017. Peruta had applied for a concealed carry permit from San Diego County Sheriff and been denied after the sheriff had found he lacked the necessary "good cause."
Like in Young, Peruta lost his case at the district court level—the court finding the county's subjective "good cause" requirements constitutional—but won on appeal with a 2-1 decision on the Ninth Circuit panel. The panel found that the Second Amendment guarantees some right of carry, and since California prohibited the open carrying of firearms, then it must issue permits to qualified citizens who request one.
On appeal, to the Ninth Circuit agreed to re-hear the case en banc. The full 11-judge panel, in an 8-3 decision, ruled that there was no Second Amendment right to carry a firearm concealed. Peruta's lawyers protested that what they had asked for was some form of carry, and that the Ninth Circuit had essentially dodged the underlying problem; since California had already banned open carry, if there was also no right to concealed carry, then ipso facto, there was no right to carry.
The Ninth Circuit ignored the requests for a fuller explanation and a ruling on whether there was effectively any right to carry.
How about open carry?
Which brings us to the Young case. George Young lives in Hawaii and requested to carry a firearm, concealed or openly. The county sheriff there turned him down. In addition to non-subjective, standard qualification questions (e.g. Are you a felon?), Hawaii statutes require the applicant to demonstrate an "urgency or the need." A standard that no Hawaii county sheriff has found to be met in at least 20 years. Yes, the state of Hawaii could point to not a single, regular citizen who had received a carry permit in that state since the current regulations were enacted in 1997.
The Ninth Circuit refused to consider this fact, ruling that Young had waited too long to bring up this "as-applied" challenge, cutting him no slack for having started this litigation pro se (serving as his own lawyer).
Instead, and I will quote from the ruling's summary [Internal references omitted]:
The en banc court noted that this Court has previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego. The question presented in this case, accordingly, was limited to whether individuals have a right to carry weapons openly in public. To answer that question, and consistent with the Supreme Court’s decisions in District of Columbia v. Heller, and McDonald v. City of Chicago, the en banc court first considered whether Hawai‘i’s law affects conduct protected by the Second Amendment.
After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions, and therefore, the conduct they regulate is outside the historical scope of the Second Amendment. The en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.
Read that closely. Hawaii became a state in 1959. In its ruling, the majority uses Hawaiian laws that were enacted decades before it actually became a state as evidence of their longstanding nature, and therefore their constitutionality.
Do you have a right to protect yourself outside the home?
The answer to this question, yesterday, might have seemed obvious. Of course you do. But the majority ruling in Young makes an interesting assertion at the end as it attempts to bolster its assertion that state and local governments have broad discretion to set rules on the carry of firearms in public up to and including the point of a categorical ban.
[T]he Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces. The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing “domestic Tranquility” and forestalling “domestic Violence.” U.S. Const. pmbl.; U.S. Const. art. IV, § 4. Any change we wish to make in our allocation of responsibility between ourselves and our governments may be had through ordinary legislation, amendment to state constitutions, or amendment to the U.S. Constitution.
Yes, that's a reference to the Constitution's preamble, which outlines the purposes for the new government. Completely ignored: The Second Amendment.
This bit of legerdemain also ignores two Supreme Court decisions that state government has no duty to protect you in public.
“Neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individual persons from harm — even when they know the harm will occur,” said Darren L. Hutchinson, a professor and associate dean at the University of Florida School of Law. “Police can watch someone attack you, refuse to intervene and not violate the Constitution.”
Choice words from the dissent
Judge Diarmuid O'Scannlain ripped the majority for essentially reading the word "bear" out of the Second Amendment, and it was beautiful.
The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II (emphasis added). 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.
This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, 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.
In so holding, the majority reduces the right to “bear Arms” to a mere inkblot. The majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.
O'Scannlain illustrates repeatedly how the majority's references to the historical record dishonestly convert minor restrictions on the carry of weapons in sensitive locations or time/place/manner into allowing a complete ban.
It is utterly baffling for the majority to contend that, merely because the lawful manner of open public carry has historically been regulated in certain respects, we may conclude that the practice of public carry itself is not entitled to constitutional protection. What right enshrined in our Constitution has not historically been regulated to some degree? Surely, we would never hold (for example) that the right to speak publicly on political matters lies wholly outside the First Amendment merely because such speech has been subject to “longstanding, accepted regulation” in the form of libel laws, defamation laws, and time-place-and-manner restrictions. Yet this is exactly how the majority appears to believe we must interpret the Second Amendment. The majority’s invitation to interpret the right to bear arms “as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” must be rejected. [Internal references omitted.]
Addressing the majority's (incorrect) contention, noted earlier in this post, that state and local governments have sole authority for the protection of the public square and the people in it, O'Scannlain notes that references to the British monarchy are invalid and misplaced under the American system. [Internal reference omitted.]
With a proper conception of American popular sovereignty, it should be easy to see the irrelevance of “the English view” that “the carrying of weapons in public areas was an affront to the king’s authority” insofar as it “suggested that the king was unwilling or unable to protect the people.” For an English subject to “carr[y] arms publicly . . . as a vote of no confidence in the king’s ability to maintain [the public peace]” would be an affront to his sovereign. Id. But for an American citizen to carry arms publicly could be no such thing. The American citizen, in contrast with the English subject, is a constituent part of a free and sovereign people, whom state governments serve as
agents. Indeed, the “principal object” of our Constitution was not to grant “new rights” from government to the people, but rather to “secur[e]” against the government “those rights” we already possess by nature.
The majority’s argument begs the very question which must be answered. To be sure, the “general police power” is “retained by the States,” to the exclusion of any federal general police power. So we know that states generally have primacy over the national government for protecting the public peace. But the question here is whether the State governments were understood to exercise a “duty to protect [their] citizens” that also excludes the citizens’ fundamental right to protect themselves. The relative division of governmental powers between the federal and State governments provides no answer to this question at all. And the majority’s premise—that the states’ constitutional power to protect the public was conferred to the exclusion of citizens’ own right to self-defense—is unmoored from the text and structure of the Constitution; contravenes the lessons of Heller; is desperately ahistorical, for reasons already discussed at length; and cannot be squared with the first principles of American popular sovereignty.
O'Scannlain also makes a point to note what the current state of the Second Amendment is under the jurisprudence of the Ninth Circuit, echoing the headline of this post.
Most alarming is the conjunction of today’s holding and our court’s earlier holding that the concealed carry of firearms in public is not protected by the Second Amendment “in any degree.” See Peruta v. County of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc). For the more than 60 million people within the nine western states of this circuit, the combined effect of these two opinions is to remove all forms of public carry—whether open or concealed—from the protections of the Second Amendment. In so doing, our circuit has not merely demoted “the right of the people to . . .bear Arms,” U.S. Const. amend. II, to the status of “a secondclass right” but has extinguished its status as a right altogether. See McDonald, 561 U.S. at 780 (plurality op.). It is no badge of honor that we now become the first and only court of appeals to do so.
The other dissent focuses specifically on the majority's casual dismissal of Young's claim against Hawaii's regulations "as applied." The dissenters make a compelling case that the majority erred based on the law and the benefit of the doubt that they're supposed to give to people who file lawsuits pro se, or laymen acting as their own lawyers.
While they do not ascribe a motive to the majority's error, it's still very clear: a state law and its related regulations that purport to provide a process for the typical citizen to obtain an open carry permit, but have not resulted in anyone getting one for better than 20 years would likely result in some sort of victory for Young. Some sort, because it might not necessarily result in him receiving a permit, but it would likely result in some citizens receiving a permit.
Next step: The Supreme Court
Undoubtedly, like Peruta before it, Young will be appealed to the Supreme Court. Since the court refused to hear the earlier case, notorious squish Justice Anthony Kennedy has retired and Justice Ruth Bader Ginsburg has passed on; replaced by Justice Brett Kavanaugh and Justice Amy Coney Barrett respectively.
This would seem to bode well for Second Amendment supporters, but many are still smarting from the Court's refusal last year to take any of the 10 Second Amendment cases that were before the court after they mooted NYSRPA v. City of New York. The court's composition then made Chief Justice John Roberts the likely fifth and necessary vote for any Second Amendment win at the high court.
Now, Roberts may be a superfluous sixth vote.
While Second Amendment advocates were disappointed with Kavanaugh's decision to join Roberts in mooting NYSRPA, his previous dissent in Heller II when he served on the D.C. Circuit Court of Appeals shows some promise for a good outcome in the future on assault weapons ban litigation. Many supporters of his nomination extended his opinion there to being generally more gun-friendly, but time will tell.
Barrett also had a notable pro-Second Amendment dissent in her background on the federal government's blanket gun ban for felons. In a dissent on a case before her when she served on the Seventh Circuit Court of Appeals, Barrett made the case that a loss of Second Amendment rights was historically understood to attach to those who had committed violent crimes.
In the case before the Seventh Circuit, Rickey Kanter was prohibited by Wisconsin state and federal laws from owning a gun because he is a convicted felon. Kanter had pleaded guilty to mail fraud, paid fines, restitution and served a year and a day in prison. Barrett's dissent in the case took a deep dive into the history of the rights of convicted felons who had served their time, and culminated with this summary of the historical analysis:
History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
Based upon her method of analysis in this case and others, it would seem unlikely that she would find the Ninth Circuit's analysis that has effectively removed "and bear" from the Second Amendment persuasive.
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