Ninth Circuit Three Judge Panel Upholds Second Amendment Right to Open Carry

A three judge panel has written that open carry outside the home is protected by the Second Amendment. The case is Young v. State of Hawaii. The opinion, written by Judge O’Scannlain makes a clear, logical, and compelling case that open carry outside the home is a right protected by the Second Amendment. From Young v. State of Hawaii:

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. 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.

Judge O'Scannlain found only a little new in this opinion. O'Scannlain wrote the original majority opinion for the three judge panel in the Ninth Circuit ruling on Peruta v. San Diego. He had already done all the research and analysis of the history and precedent of the Second Amendment. The Ninth Circuit, en banc, overruled the O'Scannlain and found that there was no right to carry arms concealed, outside the home, ignoring that carrying openly outside the home had recently been forbidden by California law.

In Young v. State of Hawaii, the carry permit is for both open and concealed carry. O'Scannlain makes an obvious point. The Ninth Circuit, in the en banc ruling on Peruta, said concealed carry outside the home is not protected by the Second Amendment. Judge O'Scannlain writes that both concealed and open carry may not be forbidden, because forbidding both is a clear infringement of Second Amendment rights.

Open carry outside the home is more clearly protected than concealed carry, because of precedents in state law that go back to the 1830's.  Concealed carry does not have the level of protection that open carry does, simply because bans on concealed carry have been tolerated for 190 years in some states.  In 1833, the Supreme Court had ruled the Bill of rights did not apply to state governments.

Slowly, starting in the 1920's, the Supreme Court ruled that some Amendments in the Bill of Rights gave protection from state governments. In 2011, the Supreme Court ruled the Second Amendment protected peoples rights against infringement by state governments.

The dissent, written by Judge Clifton, a George W. Bush appointee, is a familiar restatement of what became the majority opinion in Peruta in the en banc ruling.

It attempts to make the case that open carry is not protected by the Second Amendment. Clifton makes three essential arguments.

First, he relies on scattered laws in a few states from the 19th century, that allowed people to ask a judge to require a surety (similar to a bond) of a person who they deemed to be acting irresponsibly while carrying weapons.

Second, is the fact that some restrictions on open carry have been tolerated in a couple of states for nearly a century.

Third, that governments believe restrictions on the carrying of arms serve a good purpose.

None of the three points is much of an argument. They amount to an attempt to find ways to invalidate the Second Amendment because the judge does not want to enforce Second Amendment protections.

Thus we come to the core difference in the opinions.

If you desire to interpret and enforce the Constitution as written, the Second Amendment protects an individual right to self defense.  It protects a right to keep and to carry weapons that would be useful, not only for self defense, but to form a viable militia. It protects a right to carry weapons outside of the home.

If you believe the Constitution is a silly impediment to government power, that the Constitution is an obsolete relic of a bygone era, something that has to be re-interpreted for today's times, a "living document, then you will always find a few laws somewhere to be able to create a sophistry that neuters the Second Amendment.

One side values truth, the rule of law, and the necessity of limits on government power.

The other side finds that truth is situational and relative, the rule of law is what a judge or government says it is at the time it is said, and limits on government power are an obscene restriction on the ability of the elite to rule as they should.

The question going forward is whether there will be an en banc ruling on Young v. State of Hawaii, what the en banc ruling will find, and if Young v. State of Hawaii will be appealed to the Supreme Court.

There are seven openings on the Ninth Circuit. President Trump has nominated two judges so far.

I do not believe the Ninth Circuit's ideology has changed much yet.

The Ninth has a history of hearing Second Amendment cases en banc.

I predict that Young v. State of Hawaii will be heard en banc. I predict the en banc Ninth Circuit will reverse the three judge panel. They will find some sophistry to claim the Second Amendment does not protect any carry outside of the home, open or concealed. I predict he case will be appealed to the Supreme Court.

If President Trump's nominee, Judge Kavanaugh, is Justice Kavanaugh on the Supreme Court at that time, there is a even chance the Supreme Court will accept Young v. State of Hawaii. If they accept the case, they will likely find that carry outside of the home is protected by the Second Amendment.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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