9th Circuit Strikes Down Open Carry Gun Rights

Supreme Court with pro Second Amendment majority in spotlight

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The Ninth Circuit Court seems to be trolling the Supreme Court to get it to take up a case on gun carry rights. The most liberal appeals court in the country ruled on Wednesday that open carrying a gun -- meaning visible to others -- is not a constitutional right in America. As open carry is not a public safety issue or source of crime, the California court seems to be pushing up against the Second Amendment as much as it can get away with for now. 

The ruling  in the case of Young v. State of Hawaii was a 7-4 decision allowing for states and cities to outlaw open carry of guns without violating the right to keep and bear arms.  As the liberal 9th Circuit has consistently ruled against concealed carry gun rights, saying open carry rights are not recognized is consistent with its liberal positions. So this is not a surprise decision. The court said:

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.

The aspect that is interesting is why would the Ninth Circuit take on a case that is an easier one for the Supreme Court to overturn? 

9th Circuit Rulings on Concealed Carry

Their previous biggest case on the right to bear arms was Peruta v San Diego, which became Peruta v California when it got to the Supreme Court. The case was to determine if San Diego Country could restrict gun carry permits to only those who could show “good cause.”

These types of laws are referred to as “may issue”, which means the government can decide if a person needs a gun carry permit for self defense. So-called shall issue jurisdictions allow anyone to exercise his or her right to bear arms after getting a background check and various other rules like training and completing paperwork. 

The Ninth Circuit at first ruled in Peruta that San Diego was violating the constitution so the sheriff had to start granting carry permits to anyone who may want one.

However, liberal politicians like then-California Attorney General Kamala Harris and anti-gun groups like the Brady Campaign pushed to get the court to hear the case en banc, which it did. Then the court overturned the ruling and said San Diego’s restrictive concealed carry permit laws were just fine. 

The case was then appealed to the Supreme Court. However in 2017, the high court denied cert with only Justices Thomas and Gorsuch dissenting from the decision. That left San Diego back to issuing permits based on need, not rights, and the law in California is that there is no individual right to carry a gun outside the home. 

Of note, the Pertua ruling by the Ninth Circuit touched on the issue to come with Young.

“There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here.”

Young v Hawaii

George Young, a Vietnam veteran, twice applied and was rejected for a permit to open carry outside his home in Hawaii for self defense. The issue for this 2021 ruling is specifically whether Americans have the right to carry a gun outside the home without concealing it. Of course open carry is much less of a public threat or related to crime than concealed carry -- simply because you can see the bad gun coming at you with a gun

The courts could also specify what limits there are to such rights, perhaps a licensing scheme is too onerous or on the other side, “constitutional carry” -- which means citizens don’t have to go to the government at all for a permit-- is not strict enough. 

This Ninth Circuit appears to have set up a case that would be easier for the Supreme Court to take up and overturn than Peruta or the many other “bear” cases pending for review around the country. 

While the Ninth Circuit claims their ruling in Young v Hawaii is in line with Heller, it certainly is not.  The landmark Heller decision said that the Constitution gives individuals the right to own a gun. It did not address laws that limit carrying the gun outside the home nor what kind of guns could be outlawed (fully-auto, so-called assault weapons, etc.) 

The late Justice Antonin Scalia wrote in Heller about the intent of the Founding Fathers when they were writing the Bill of Rights. The Young opinion has a lengthy part on historical research to show that there is precedent for banning open carry outside the home. 

(To keep this read less than the Ninth Circuit's 215 pages, I’ll just link to let you read for yourself. It starts on page 40 in 1299 AD, not kidding!)

Since what we call “open carry” was the standard way to carry guns in the 18th century, it’s clear that the type of bearing arms to which they were referring.  You won’t find any depictions of Thomas Jefferson with a pistol in a holster under his cloak from those times. 

So that would make this open carry case one that would be easier to address by the Supreme Court. There’s just no way the justices could say that Heller permitted denying the right to open carry. It didn’t address it at all. But the Ninth Circuit clearly expects a challenge on the right to open carry not being an issue for the Founding Fathers. They wrote on page 112 if you’re reading along: 

Notwithstanding the advances in handgun technology, and their increasing popularity, pistols and revolvers remain among the class of deadly weapons that are easily transported and concealed. That they may be used for defense does not change their threat to the “king’s peace.” It remains as true today as it was centuries ago, that the mere presence of such weapons presents a terror to the public and that widespread carrying of handguns would strongly suggest that state and local governments have lost control of our public areas. Technology has not altered those very human understandings. 

Gun Carry Laws in America

The Appeals courts in the U.S. have been split on the right to bear arms ever since Heller, and the Supreme Court has resisted all efforts to address the issue. It is more likely now that SCOTUS will take up a carry case with more justices who are believed to be pro-Second Amendment. If they do that, they would then strike down the carry laws in California, New York, Massachusetts, Connecticut, Maryland, New Jersey, et al. 

Reminder: DC decided not to appeal to the Supreme Court after the Appeals Court ruled in Wrenn v District of Columbia that its short run of allowing carry permits for “good reason” was unconstitutional. By not appealing, the nation’s capitol had to change its new carry laws to be “shall issue” and allow any American citizen the ability to carry a gun in DC with a permit.

The Ninth Circuit opinion takes aim at the Wrenn ruling multiple times which addressed the historical record of carry laws: “We thus vigorously disagree with the D.C. Circuit’s conclusion that,

[u]nder surety laws, put simply, everyone started out with robust carrying rights.” (page 111)

While it seems unlikely the Supreme Court would finally weigh in on “may issue” state laws with a case on open carry in Hawaii, the liberal courts may think they are coming to their last ditch chances. The Ninth Circuit can troll SCOTUS for a little longer, but once carry laws are addressed on high, it might regret it. 

Read the full opinion (215 pages!) for YOUNG V. STATE OF HAWAII online now at Ninth Circuit: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/12-17808.pdf

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