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9th Circuit panel upholds 2nd Amendment Open Carry right

9th Circuit panel upholds 2nd Amendment Open Carry right

Case may end up in Supreme Court, particularly if reversed by full 9th Circuit en banc.

Every once in a while a federal court in the 9th Circuit hands down an opinion consistent with the actual meaning of the Second Amendment, and the Universe threatens to lose its mind. (Generally, of course, any such 2A-favorable decision is shortly reversed en banc, c’est la vie.)

One such decision was handed down yesterday in Young v. Hawaii, (embedded below) in which a 3-judge panel for the 9th Circuit correctly held that Hawaii’s extraordinarily restrictive gun laws were an unconstitutional of the Second Amendment under any level of scrutiny. (Indeed, it is this author’s humble opinion that all pre-emptive gun control laws are facially unconstitutional as applied to adult, law-abiding, mentally sound American citizens.)

The court’s decision was written beautifully by the wonderfully named Judge Diarmuid F. O’Scannlain, and sets out the task presented to the court right up front:

We must decide whether the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.

Young Is Repeatedly Denied Carry Permit by Hawaii

The plaintiff, George Young, a resident of Hawaii, had repeatedly sought a permit to carry a handgun for personal protection, and had repeatedly been denied. Under Hawaii law concealed carry was permitted only for people with an exceptional need, and a permit to carry openly was permitted essentially only for the tiny portion of the population employed in security work.

In effect, the typical resident of Hawaii was routinely and completely denied the means to carry a firearm for personal protection. (In full disclosure, this author has carried a handgun for personal protection pretty much every day of his adult life, including the 25 years spent living in Massachusetts, and somehow the world has not ended in rivers of blood.)

Ultimately, Mr. Young filed a Federal §1983 suite against Hawaii, alleging that the state denying his application for a license to carry violated his Second Amendment rights. (This suit was filed in 2012, a full 6 years prior to this appellate court’s favorable ruling.) Interestingly, Young filed pro se, meaning he was representing himself, which had the unfortunate consequence of leaving some important arguments on the table at the trial court level. (Please do not do this.)

Hawaii Has Young’s Suit Dismissed, Young Appeals

Hawaii and the other parties named as defendants immediately sought to have the suit dismissed. They argued that Young’s claim was foreclosed by the 9th Circuits prior decision the en banc decision commonly referred to as Peruta II. Peruta II was an en banc decision of the 9th Circuit Court of Appeals that held there was no US Constitutional right to carry a concealed handgun, in effect reversing the pro-2A three judge ruling in the case commonly referred to as Peruta I, which struck down a California handgun control scheme that infringed concealed carry. (In full disclosure, I’ve personally met plaintiff Peruta.) (Note that Judge O’Scannlain, the author of this majority opinion,  also authored the majority opinion in Peruta I.)

Appellate Court Decision Guided by Heller and McDonald

Here the 9th Circuit Court of Appeal decision authored by O’Scannlain explains:

Our interpretation of the Second Amendment is guided by the Supreme Court’s decisions in District of Columbia v. Heller … and McDonald v. City of Chicago, … . In Heller, the Court invalidated a District of Columbia ban on handgun possession in the home, holding that the Second Amendment guarantees an individual right to keep a handgun in one’s home for self-defense, and rejecting a collective view of the right. … In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city.

They go on to note:

[W]e find ourselves navigating waters uncharted by Heller and McDonald: the degree to which the Second Amendment protects, or does not protect, the carrying of firearms outside of the home.

Two-Step Legal Analysis

The decision then sets out their mode of analyzing this question:

Our circuit, like others, employs a two-step approach to Second Amendment challenges. …We first ask “whether the challenged law burdens conduct protected by the Second Amendment.” … If so, we must “apply an appropriate level of scrutiny.”… And because Heller makes clear that evaluating restrictions of Second Amendment rights under rational basis review is inappropriate, … any means-end scrutiny applied must be some form of heightened scrutiny, such as intermediate or strict scrutiny. Of course, we remain ever mindful not to treat the Second Amendment any differently from other individual constitutional rights. It is not “a second-class right,” … nor a “constitutional orphan.”

My, how refreshing.

The decision then gets down the analytical merits, a discussion too lengthy to cover here in a blog post, but definitely worth reading in full (again, the entire decision is embedded below).

Right to Bear Arms in Public is Protected by the 2A

The first step in the two-step analysis is to determine whether the right to bear arms is conduct protected by the Second Amendment.

The court first notes that the text of the 2A references both “keep” and “bear,” and thus “bear” must mean something different than mere “keep,” and that something different can really only mean carry outside the home.

The Racist Roots of Gun Control

The decision also refreshingly recounts the extremely racist roots of modern gun control laws, noting that these were largely created by southern states intent on denying the right to keep and bear arms to their black slave and (after the Civil War) freeman populations. (As always, the American slavers and deniers of civil rights to black Americans were Democrats.)

Majority Leg Sweeps the Dissent’s Arguments

The court spends considerable ink swatting away the dissent’s pathetic arguments in favor of Hawaii’s repressive gun control scheme.

For example, the dissent notes that historically there were provisions requiring those wishing to carry weapons in public to first post a surety, a kind of monetary bond, which would be forfeit if they misused those weapons.

The court notes that, first of all, such a surety was only required of persons against whom a complaint of misuse of weapons had already been filed. Second, in any case the surety did not prohibit being armed in public—indeed, quite the opposite, the surety merely conditioned the right to be armed in public. So long as the surety was posted, the person was fully permitted to go about armed in public.

The court also addresses the rather pathetic argument by the dissent that modern Hawaii gun control schemes should be upheld as Constitutional because of an olde English Statute of Northampton dating to 1328. (That’s not a typo, folks, 1328.) The dissent reads the 1328 law as barring the carrying of arms in public. In fact, as the majority demonstrates, the ban was applied only to ban the carrying of arms for unlawful purposes. In any case, America fought this little battle called the Revolutionary War so as to not be bound by English law.

Hawaii Gun Control Fails Under Any Level of Scrutiny

Having concluded that the right to bear arms conduct protected by the Second Amendment, the court must then decide whether Hawaii’s gun control scheme can survive heightened—intermediate or strict—scrutiny. In determining the appropriate level of scrutiny:

[W]e consider “(1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on the right.”

Importantly, the court notes:

“[a] law that imposes such a severe restriction on [a] core right [of the Amendment] that it ‘amounts to a destruction of the . . . right,’ is unconstitutional under any level of scrutiny.”

In the context of whether the right to bear arms is at the “core” of the Second Amendment, the decision again notes that “keep” and “bear” mean two different things, and that if even “keep” must be read to allow public transport of guns if only to get them from the gun store to the home, then “bear” must mean some form of public carry of guns that is of greater dimensions. In particular, with Heller and McDonald having held that a core purpose of the Second Amendment was self-defense, “bear” must be read as allowing for the bearing of arms for purposes of personal protection.

The next step in the analysis then, is the severity of Hawaii’s gun control scheme in infringing the Second Amendment, and particularly whether the scheme has the effect of “destroying” that right.

The court notes that Heller and McDonald held the Second Amendment to be an individual right, and thus it protects the rights of individuals, not merely selected groups of individuals. In particular, a law that effectively restricts Second Amendment rights to narrowly defined groups—such as persons with exceptional reasons for exercising that right or the minority of the population engaged in security work—“violates the core of the Second Amendment and is void.” This is particularly so when one notes that Hawaii has never issued a concealed carry license under the “exceptional reasons” provision—ever.

Regulation Still OK, Effective Banning is Not

Importantly, the majority opinion does not take all gun regulation in Hawaii off the table:

We see nothing in our opinion that would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State “a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.”

It continues, however:

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.”

The majority then held that the dismissal of Young’s claim at trial was in error, they reversed that dismissal, and they remanded the matter back to the trial court for “further proceedings consistent with this opinion.”

The large majority of US states have reasonable, if overly restrictive, mechanisms for allowing adult, law-abiding, mentally sound citizens to carry arms in public, generally concealed. A handful of states, such as Hawaii, California, Maryland, New Jersey, New York, and Massachusetts, continue to impose gun control schemes that effectively deny Second Amendment rights to their residents.

This decision effectively informs Hawaii (and other states within the purview of the 9th Circuit) that gun control schemes that effectively gut Second Amendment rights are unconstitutional at any level of scrutiny.

And now we get to wait for the en banc re-hearing, as per Peruta I and Peruta II.

As promised, here’s the decision in full (pdf.), including the childish dissent:

9th Circuit Open Carry Decision – Young v. Hawaii 7-24-2018 by Legal Insurrection on Scribd


Attorney Andrew F. Branca
Law of Self Defense LLC

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So the en banc review will reverse the decision and then the case will go to the SCOTUS, if they are willing?

    Sian in reply to Immolate. | July 26, 2018 at 5:22 pm

    9th En Banc will do everything they can to keep this from getting to a pro-gun Supreme Court, including holding their noses and sticking it to Hawaii.

      MarkS in reply to Sian. | July 27, 2018 at 12:01 pm

      In “sticking it to Hawaii” would not the court be sticking it to other miscreant states, as well?

        randian in reply to MarkS. | July 27, 2018 at 2:08 pm

        I’m sure the en banc will find a way to save both Hawaii’s and California’s OC ban. I have an idea how they’d do it, but loose lips and all that.

In other news, Hell has frozen over solid, and flying swine have been seen in the sky.

    JohnC in reply to georgfelis. | July 25, 2018 at 2:44 pm

    And, lo,
    Rivers shall run red as blood,
    Locusts shall blot the Sun from the sky,
    And the 9th Circuit shall uphold the Second Amendment.

    – Breaking of the Seventh Seal, Verse 22

Is Peruta II the ruling where the majority used a large number of previous case rulings that predated Heller in their decision? From what I remember when I read your post on it was that the majority opinion opinion held that the manner in which those two California counties interpretted “may issue” was applicable because the majority did not properly take into consideration SCOTUS’s decision in Heller.

    Joe-dallas in reply to Phrick. | July 25, 2018 at 12:22 pm

    Tom – This is an post over at volokh which is a better description of the en banc holding in Peruta

    ” In the three-judge panel decision in Peruta (also written by Judge O’Scannlain —sp??), the court held that the county had to permit either open carry or concealed carry to give meaning to the right to bear arms for self defense, and that since CA had more or less outlawed open carry, then the option of concealed carry couldn’t be thwarted. The 9th en banc of course disagreed, but avoided the issue by saying that concealed carry wasn’t a right, and that the issue of the state’s restrictions of open carry would have to be litigated another day. Well, this is now that other day, although the state is Hawaii instead of California. I expect en banc 9th to say no right to any carry outside the home or one’s private property, and then we shall see what SCOTUS does (alas, it’ll probably duck the issue once more).”

    credit to nick gillespie

      redc1c4 in reply to Joe-dallas. | July 25, 2018 at 3:06 pm

      not if we can get Kavanaugh (sp?) on SCOTUS.

      his level of scrutiny for the 2nd Amendment, as published, is “shall not be infringed”

… for the Second Amendment leaves the State “a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.”

This is a strange statement.

Obviously, “gun violence” has nothing to do with the Second Amendment. The Amendment says nothing like “the right of the people to engage in gun violence shall not be infringed.” It seems odd for a court to fret over such a non-issue.

However, the rest sounds like an uphill battle, unless the Court can show that “some measures regulating” is synonymous with “shall not be infringed.” Perhaps they’re just following the deficient reasoning in Heller.

    Milhouse in reply to tom_swift. | July 25, 2018 at 3:18 pm

    No, it’s not a strange statement at all. Gun violence is a legitimate problem, and the state has an obvious interest in combating it. The decision says that in doing so the state can’t violate the 2nd amendment, but it points out that the amendment doesn’t leave the state unable to pursue its legitimate interest. There are a variety of tools that the 2A leaves alone, which the state can use if it likes, including some measures regulating handguns.

    And yes, some regulations are consistent with “shall not be infringed”, because they’re not infringements. The 2A does not say “shall not be restricted in any way”.

      Mac45 in reply to Milhouse. | July 25, 2018 at 3:55 pm

      The state can control the USE of firearms, including handguns, without violating the 2nd Amendment. This is because the 2nd only addresses keeping [owning] and bearing [possessing] weapons. But, the language is exceptionally clear. Infringement is on a right it to limit or restrict that right. That is exactly what regulations do. They “infringe” upon the execution of a right.

      So, the state can Constitutionally address gun violence by regulating the use of firearms. But, it is barred from regulating the ownership and possession of firearms by the public, under the language of the 2nd Amendment.

        Milhouse in reply to Mac45. | July 25, 2018 at 9:56 pm

        I don’t think you’re right. Reasonable regulations are not infringements.

        Here’s an example of a regulation I think would be reasonable, and would pass constitutional muster: “Smart gun” technology as it exists today is unreliable, unsafe, and expensive. Therefore, in my opinion, requiring it puts a substantial and unjustified burden on the right to self defense and thus unconstitutional. But suppose at some time in the future the technology became so reliable, robust, and affordable that the current objections would no longer apply. Could a legislature, consistent with the second amendment, then require such measures on all weapons, and ban those not using them? I think it could.

          “But suppose at some time in the future the technology became so reliable, robust, and affordable that the current objections would no longer apply. ” Wake me up when that happens, and we can have the discussion. I’m disinclined to invest today-time in a hypothetical future world that may or may not ever exist.


          Mac45 in reply to Milhouse. | July 25, 2018 at 10:46 pm

          It would depend upon the situation. If the requirement did not restrict a person’s ability to effectively utilize the weapon for self defense, it would probably not be a violation of the 2nd. If it were reliable, then it would be the same as requiring that a firearm have a positive safety device, in order to be sold in a state. The politics of the matter are an entirely different kettle of fish, however.

          However, what technology can create, technology can defeat. Having a firearm which requires a bio-metric match with a specific person would probably be defeated by the same technology which created it, allowing it to be altered to allow others, perhaps anyone, to use the weapon. Also, there is the problem of transfers of firearms. The state would have to allow the safeguards to be altered upon the transfer of the weapon. if they did not, this could create a constitutional problem.

          Milhouse in reply to Milhouse. | July 26, 2018 at 11:39 am

          If the requirement did not restrict a person’s ability to effectively utilize the weapon for self defense, it would probably not be a violation of the 2nd.

          Exactly. This, I think, refutes your position that the 2nd forbids absolutely any regulations on the ownership or possession of firearms. I maintain that reasonable regulations, i.e. those that don’t restrict a person’s ability to effectively utilize the weapon for self defense, are not infringements and are allowed.

          Mac45 in reply to Milhouse. | July 26, 2018 at 12:28 pm

          If the requirement did not restrict a person’s ability to effectively utilize the weapon for self defense, it would probably not be a violation of the 2nd.

          Exactly. This, I think, refutes your position that the 2nd forbids absolutely any regulations on the ownership or possession of firearms. I maintain that reasonable regulations, i.e. those that don’t restrict a person’s ability to effectively utilize the weapon for self defense, are not infringements and are allowed.”

          t depends entirely upon what the regulation essentially does. Let’s take the current regulations restricting magazine capacity to 10 rounds. Does limiting a defensive weapon to 10 rounds, 20, 30, etc. reduce a person’s ability to effectively use that firearm for self defense? Yes. How? By limiting the number of attackers who can be engaged without stopping to reload. There is a very good reason why defensive handguns now routinely have magazine capacities of 8+ rounds, instead of the standard 6 round capacity of the revolver. So, a restriction on magazine capacity would be unconstitutional, as the magazine is a functional part of the weapon, not merely an accessory. Banning a flash suppressor would not be unconstitutional because it is not a functional part of the weapon, but, in fact, an accessory. Requiring a minimum barrel length, on a firearm, is technically a violation of the 2nd Amendment, as it would preclude the easy carry of a person self defense weapon. We also have the state imposing unconstitutional bans on the carry of certain types of personal weapons in public. While these bans generally reduce interactive problems between members of society, they are essentially unconstitutional. The courts have essentially re-written the 2nd Amendment to allow for all kinds of infringements, on the ownership and carry of firearms, which are found nowhere in the Amendment.

          The real problem arises when the state bans the possession of all personal weapons, or even a class of personal weapons, by a person live a free existence in society. Unless the state has entered into a legal guardianship position, with regard to a person, than that person should have the ability to exercise all of his or her rights. This would limit the type of person who could actual own or possess a deadly weapon to those people in a custodial situation [prisoners and institutionalize mental health case] and those on probation, parole of under direct state supervision for mental health issues. But, our current society wants to take this even further.

          Gun control advocates, realizing that they can not control those who refuse to abide by the law, seek to protect society from potential harm, from firearm usage, by restricting the rights of law abiding citizens from exercising their rights under the 2nd Amendment. Removing a law abiding person’s right to own or carry a firearm does not make the world significantly safer, as those who are not law abiding will simply ignore the restriction on their rights. And, this segment of society is much more likely to present a danger to the rest of society. Regulating personal firearms, in an attempt to reduce a non-existent potential danger to the rest of society, is going to run afoul of both the 2nd Amendment and general public opinion.

      Sian in reply to Milhouse. | July 26, 2018 at 5:20 pm

      Biggest things the state can do to combat gun violence:

      Require DAs to fully prosecute ‘violent felon in illegal possession of a firearm’ violations. No allowances to plea or make deals in these cases. These repeat offenders are the bulk of violent crimes and they need to be kept behind bars until they are too old to violate. If we can’t trust prosecutors to act in the best interests of society, we must force them to.

      Use a firearm in the commission of a violent felony, and already a prohibited person? +20 years, no deals, no pleas.

      Require police agencies to report disqualifying charges to the FBI in a prompt manner, so those that have proven themselves to not be responsible enough to own a firearm are in the system.

      Abolish gun-free zones, which are, uselessly, obeyed by everyone except those intent on criminal violence.

      MarkS in reply to Milhouse. | July 27, 2018 at 12:08 pm

      So-called “gun violence” is pablum for those inflicted with liberal mentality in that it assigns an action or activity to an inanimate object. Or more simply put, there is no such thing as “gun violence”!

Hopefully SCOTUS will put off a “definitive” 2A case until the court is 6-3. I really don’t trust Roberts to follow the Constitution.

stevewhitemd | July 25, 2018 at 12:26 pm

Thank you for the analysis, Andrew, cogent as always.

A question: since the plaintiff represented himself pro se, you note that he left “important arguments on the table.” Can you summarize briefly what those arguments are that pertain to the issue at hand?

    Sorry, prepping for my show at the top of the hour, but the disallowed arguments on appeal are in a lengthy footnote in the decision, embedded above.

    Incidentally, anyone interested in today’s Law of Self Defense Show, we’ll be covering the Florida handicap parking spot shooting with a detailed video breakdown and the relevant legal issues, it’s free to participate live on the webinar or to catch the recording afterwards for 24 hours (after which the show is locked down for our patrons on Patreon).

    Show is free, but you need to register for webinar access:


Mighty_WHrIGHTY | July 25, 2018 at 12:48 pm

When “the Universe threatens to lose its mind”, perhaps you should listen.

No surprise. Hawaii has already announced it will ignore the ruling for the nonce.

    JusticeDelivered in reply to puhiawa. | July 25, 2018 at 2:17 pm

    Hawaii judges remind me of kids, acting up because they want attention, even bad attention is better than no attention.

Just a couple of points re: Young v Hawaii.

First, it did not declare that open carry was a right, guaranteed under the 2nd Amendment.

Second, the important point of this decision is that the court stated that the right to keep and bear arms applies outside the home, as well as inside it. Also, that the state of Hawaii can not use can not use a statute regulating the storage of firearms within a home, businesses or sojourn [travel] to deny a person the ability to lawfully carry a firearm, on his person, while in public.

What is going on in Hawaii, is that public carry is allowed under license there, but state and local authorities refuse to issue any licenses, thereby infringing upon the rights guaranteed in the 2nd Amendment. Several courts, including the SCOTUS, have ruled that any such scheme to totally deny a person’s right to bear arms outside the home, is unconstitutional action.

This was a wonderful historical sojourn, but the court hardly needed 75 pages to come to the decision at which they arrived.

i’ve been wondering, since the Kekedy retirement, if the 9th Circus, wary, with good reason, of having all the “gun control” laws it has upheld over the years overthrown by a rational SCOTUS, is looking to give half-wins to the public, so that a case doesn’t make it to SCOTUS for a complete overturn.

it sounds like something those robed fascists would do.

after all, it isn’t as if following the law is their thing.

This is what happens when the Democrats run out of money, they can’t pay their employees’.

In any case, America fought this little battle called the Revolutionary War so as to not be bound by English law.

Please don’t say this. While the United States is not bound by “English Statutory Law,” English Precedent was part of the “inherited” common law during the revolutionary period.

See Black’s Law Dictionary, 8th Ed., pg. 293, Common Law Definition number 2, and sub-specifically “American Common Law”

The Packetman | July 25, 2018 at 7:49 pm

I wouldn’t ding Young too hard by filing pro se … even Calguns and GOA have to limit their funding to cases which have a better chance of winning than Young’s.

And you’ve gotta admit that no one saw this one coming!

regulus arcturus | July 25, 2018 at 9:35 pm

Of course, if a part of the 9th Circus makes a sensible ruling, it is incumbent on the entire 9th to reverse itself.

9th circus will do everything they can to make sure this doesn’t get to the SCOTUS, including holding their nose and ruling against HI. the last thing they want is this to become national precedent.

    randian in reply to Sian. | July 26, 2018 at 10:12 pm

    If they do that, how do they not stick it to CA too? California bans open carry too.

      Mac45 in reply to randian. | July 27, 2018 at 1:01 pm

      Not a problem. Young, Jr. v Hawaii does not rule that OC is a right guaranteed under the 2nd Amendment. Courts, even those within whose jurisdiction the gungrabber states lie, have begun to take the SCOTUS message in McDonald to heart. Law abiding citizens must be allowed a legal means to carry weapons for self defense. The SCOTUS said that concealed carry is not expressly protected by the 2nd Amendment. And, in a recent court case in Florida, the courts ruled that open carry was not expressly guaranteed either. The result is a sort of legal position that acknowledges that a right to POSSESS a firearm for self defense is guaranteed [within “reasonable restrictions”] but, a state is free to place conditions on the manner of carry [open or concealed].