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.
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 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.)
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.
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).
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 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.)
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.
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.
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
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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