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Did the 9th Circuit Just Erase “to Bear” Arms from the Second Amendment?

Did the 9th Circuit Just Erase “to Bear” Arms from the Second Amendment?

Young v. Hawaii: The case presented the Circuit with a not-so-straightforward question: Since Hawaii heavily regulates the concealed carriage of firearms, which licensing scheme has been upheld by the Ninth Circuit, can Hawaii even more heavily regulate the open carriage of firearms?

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The Ninth Circuit Court of Appeals on March 24th issued its long-awaited decision in Young v. Hawaii (full decision embedded at bottom of post).  The case presented the Circuit with a not-so-straightforward question: Since Hawaii heavily regulates the concealed carriage of firearms, which licensing scheme has been upheld by the Ninth Circuit, can Hawaii even more heavily regulate the open carriage of firearms?

The Ninth Circuit’s answer?  Yes, Hawaii can.

One can be forgiven for not immediately grasping the full impact of the Ninth Circuit’s 215-page opinion (with dissents), which reads more like a prequel to George Orwell’s 1984 than a judicial decision.

Many gun rights advocates, including the National Rifle Association, characterized this opinion as saying “there is no right to carry.”  Other gun rights advocates have noted that this opinion merely falls in line with years of Ninth Circuit precedent.  But, like all legal opinions, this decision is much more complicated.

The question presented to the Ninth Circuit in Young was limited (whether appropriately or not) to a facial challenge—which means the only question the Circuit addressed was whether Hawaii’s regulation of the open carriage of firearms was, as a matter of law, unconstitutional.  The problem, of course, is that law and reality often differ. While the law may not completely prohibit the open carriage of arms in public, almost no law-abiding American in the state of Hawaii can actually do so because state-issued open carry permits are so difficult to come by.

And this is where both interpretations of the ruling’s implications have some measure of validity. This case does, unsurprisingly, follow in the footsteps of years of Ninth Circuit precedent upholding gun control laws and “limiting” the scope of the Second Amendment.

But the Young Opinion establishes that, within the Ninth Circuit, the open carriage of firearms is not protected by the Second Amendment.  Combine this case with the Ninth Circuit’s 2016 decision in Peruta v. County of San Diego, which held that the concealed carriage of firearms is not protected by the Second Amendment, and the result is that within the Ninth Circuit the carriage of a firearm in public, in any manner, is not protected by the Second Amendment.

That’s a deeply troubling and flawed precedent.

But to fully understand the Young Opinion, you must understand the test the Ninth Circuit employs in firearms cases; the Circuit’s 2016 Peruta decision; and surprisingly enough for the Ninth Circuit, its spin on originalism.

Subverting Heller: The Ninth Circuit Applies Its Own Preferred Test

With the landmark Supreme Court decisions of D.C. v. Heller in 2008 and McDonald v. Chicago in 2010, circuits across the United States were required to treat the Second Amendment as protecting an individual right that can be enforced against both the federal government and the various states.  But nearly every circuit has refused to employ the test established by the Supreme Court to evaluate Second Amendment challenges—the text, history, and tradition test. (This has not gone unnoticed, or unchallenged, by gun rights lawyers.)

Instead of looking to text, history, and tradition, the Ninth Circuit employs a two-step test to evaluate Second Amendment challenges.  First, the Circuit determines whether “the challenged law affects conduct that is protected by the Second Amendment.”  Under this first step, the Ninth Circuit purports to “base that determination on the ‘historical understanding of the scope of the right.’”  If the Circuit finds historical evidence that the prohibited conduct has been the subject of “longstanding, accepted regulation,” then the Circuit concludes that conduct is not protected by the Second Amendment.  If the prohibited conduct is not the subject of historical regulation, then the Circuit proceeds to the second step of its analysis.

In the second step, the Ninth Circuit determines the “appropriate level of scrutiny” to apply, although the Supreme Court explicitly rejected the application of the judicially created tiers of scrutiny in Second Amendment cases.

This is the same test the Ninth Circuit employed in its 2016 concealed carry decision in Peruta.

Peruta v. County of San Diego: No “Right” To Concealed Carry

In Peruta, the Ninth Circuit evaluated whether the Second Amendment protects the right to carry a concealed firearm in public.  The case arose out of San Diego’s incredibly restrictive “may issue” concealed carry licensing scheme, where law enforcement would only issue a concealed carry permit to an individual that “sufficiently demonstrated” the need to carry a firearm.

This is where law and reality again differ.

Even though the law technically “allows” for the possession of concealed weapons, permitting schemes can be so restrictive (and susceptible to abuse) that they functionally prevent law-abiding citizens from legally carrying arms outside of the home.

Nonetheless, the Ninth Circuit determined that “the Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.”  Because of the Circuit’s flawed test, it does not consider the concealed carriage of firearms to even come under the protections of the Second Amendment.  In other words, in the eyes of the Ninth Circuit, the concealed carry of a firearm does not fall within the Second Amendment’s protection of the natural and fundamental right to keep and bear arms.

In Peruta, however, the Ninth Circuit explicitly didn’t address the question of open carry: “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.”

But Young presented that exact question to the Ninth Circuit.

Young v. Hawaii: Bad Originalism

What the Ninth Circuit purported to engage in, when reviewing the historical scope of the Second Amendment, is originalism.  Originalism is a method of constitutional interpretation that obliges judges to interpret the Constitution’s limitations, enumerated powers, and protections as they would have been understood when the Constitution was drafted and ratified—this is also known as the original public meaning.

To determine the original public meaning, scholars, lawyers, and judges look to the actual text of the relevant provision, and then to what that text meant at the time of ratification.  While Originalism has been gaining support in courtrooms across the nation, a new obstacle has begun to reveal itself—bad originalism.

When a court sets itself to ascertain the original public meaning of the Second Amendment, courts must be good historians and accurately review those firearm rights that remained intact at the time of our Founding.  But all too often, given the Second Amendment’s disfavored status, courts rely on bad history or reach for strained conclusions to support their rulings.

In Young, the Ninth Circuit acknowledges that “after Heller, it is our duty to confront such history.”  But, in the same breath that the Ninth Circuit warns that it must be careful not to allow confirmation bias to seep into its opinion, it extolls favorable laws, makes unsupported conclusions about “unclear” laws, and quickly dismisses any evidence that weighs in favor of the right to bear arms.

The Ninth Circuit points to historical prohibitions on the carriage of arms based on class and religious grounds as evidence that government can enact such restrictions today, rather than understanding such bans as the clear equal protection violations that they would be in today’s society.

Further, the Ninth Circuit’s repeated review of statutes that were clearly aimed at preventing individuals from carrying dangerous and unusual arms to the terror of the public (i.e., Mass. 1795: authorizing justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this commonwealth”), as a prohibition on open carry strains credulity.

Concealed carry came to eclipse open carry as a preferred practice because technology evolved and jurisdictions began to prohibit open carry, often without challenge.  Seeing an individual openly carrying a firearm might surprise some members of modern society, depending on the state or region from which they hail, given that open carry has become far less common today. But it is an incorrect interpretation of history to argue, even today, that the mere sight of an openly carried firearm constitutes a legal “terror” to the public at large.   

After looking to the many Colonial Era laws allowing and even mandating the public carriage of arms, the Ninth Circuit concluded:

What is clear is that the colonies assumed that they had the power to regulate—whether through mandates or prohibitions—the public carrying of arms.  This history may also evince a general acceptance by local governments of some firearms in the public square . . . But the public carrying of arms was always subject to conditions prescribed by the legislature.

Most offensively, the Ninth Circuit completely flips the balance of power established by the Constitution:

As we have seen, maintaining the “king’s peace” was the king’s duty and, in the English view, the carrying of weapons in public areas was an affront to the king’s authority, for two reasons. First, public carry threatened the king’s peace because the mere presence of the weapons terrorized the people. Second, it suggested that the king was unable or unwilling to protect the people. Carrying arms in the public square infringes on states’ police powers for similar reasons.

Not only is it offensive to argue that law-abiding armed individuals somehow “infringe[] on states’ police powers,”—as if the states’ police powers utterly supersede individuals natural and fundamental rights—the Circuit’s conclusion is based on flawed historical conclusions.  The mere presence of weapons did not terrorize the people.  It did not suggest the king was unable or unwilling to protect the people.  The conclusions drawn by the Ninth Circuit are a revisionist rewriting of historical record, much like Smith sitting in his cubicle at the Ministry of Truth “fixing” records for The Party.

After the Ninth Circuit’s “extensive” but clearly flawed review, the Circuit held that Hawaii’s open carry licensing scheme “stands well within our traditions,” and thus is constitutional.

According to the Ninth Circuit, individuals in Hawaii are able to “arm themselves in their ‘place of business, residence, or sojourn’ and transport unloaded arms between those locales,” and Hawaii “permits hunters and target shooters to carry openly and to transport their arms.”

Judge O’Scannlain’s dissent summarized the majority opinion succinctly:

The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” . . .  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 beari.e., to carry—that same firearm for self-defense in any other place.

Which leads us back to the ultimate question: Does “and bear” remain a part of the Second Amendment in the Ninth Circuit?

As a matter of law and legal theory, yes, “and bear” remains a part of the Second Amendment in the Ninth Circuit.

But in reality, and in practice, no, it does not.

Full decision here:

Young v Hawaii by Legal Insurrection on Scribd

_______________

Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

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Comments

Hence the sobriquet (sp) ninth circus court.


 
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Eddie Baby | April 3, 2021 at 6:28 pm

The ruling is just the top piece of bread in a nope sandwich of the Ninth Circus ruling that “and bear” doesn’t mean what it says. Peruta was the bottom half. Now it’s time see see if the Trump’s SCOTUS picks are worth anything or if they are just a bunch of corporatist hacks like Roberts.


 
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Baby Elephant | April 3, 2021 at 6:35 pm

I kind of like the longer form think pieces over the shorter form with block quotes from other sources.


 
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henrybowman | April 3, 2021 at 8:15 pm

“As a matter of law and legal theory, yes, “and bear” remains a part of the Second Amendment in the Ninth Circuit.
But in reality, and in practice, no, it does not.”

But, as we have learned from the alcohol prohibition and the marijuana prohibition, ultimately, reality and practice are defined by the people, not the blackrobed nazguls.


     
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    n.n in reply to henrybowman. | April 3, 2021 at 11:38 pm

    All religions (i.e. behavioral protocols), whether morality, ethics, or law serve as guides, to which the people assent or dissent. In theory, following a religion will produce a functional outcome. However, as with fitness functions, qualifying intent matters. So, why did America’s founders include the Second Amendment? Why didn’t the Constitution discriminate by race or sex? Why didn’t they include a Twilight Amendment (“penumbras and emanations”)? Why are there two named parties “the People” and “our Posterity”, including babies?


 
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txvet2 | April 3, 2021 at 10:57 pm

No. The Ninth can’t do that. That will be up to Roberts and Kavanaugh, our two stealth leftists.


     
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    MarkS in reply to txvet2. | April 4, 2021 at 7:05 am

    WRONG! Even SCOTUS cannot amend the Constitution….unless we allow it


       
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      amwick in reply to MarkS. | April 4, 2021 at 7:38 am

      This is a different world Mark… I am not counting on anything from SCOTUS anymore. Hell, Congress doesn’t pay any attention to the Constitution, our demented President does not either, why should any reasonable person expect them to be any better?


       
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      GWB in reply to MarkS. | April 5, 2021 at 9:46 am

      Yes. Fine.
      But it matters not a whit amending the Constitution if the people can’t hold the government to it, amended or not. If enough of the people no longer care to exercise self-governance then the Constitution is moot, no matter how firm it is on the matter.


     
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    guyjones in reply to txvet2. | April 4, 2021 at 10:17 am

    Don’t forget about Gorsuch, indefensibly, arrogantly and absurdly re-writing Title VII to include homosexuals and “transgendered,” even though these groups are not mentioned in the statute’s text, nor were they ever contemplated by the legislators who wrote the statute. That one decision alone gives legitimate cause for concern about this guy’s intellect and his jurisprudence.

The Ninth Circuit, as well as most other courts, fail to make two important distinctions concerning the 2nd Amendment.

The first is that the Constitution is a Contract which was entered into by the states comprising the United states. So, practices common under the previous contract between the colonies and GB, were null and void and, therefor irrelevant. Originally the BoR was only applied to the federal government, except where it directly stated its application to state powers. It was not clearly applied to state actions, until the 14th Amendment was ratified. So, whether individual states and their sub-jurisdictions impose infringing regulations upon the ownership and possession of firearms and other weapons is irrelevant to the argument; as the Constitutional prohibition went into effect in 1868.

When taken historically, the BoR is a contract and the 2nd A is an extremely clear, well crafted clause in that contract. To amend it or rescind it, a clearly enumerated set of actions must be taken. No entity has the authority to change the Constitution without going through this process, not even the courts. And it can not be legally ignored.

The second problem is the language of the Amendment, with regard to the prohibition against infringing upon the right of the individual to possess/carry firearms. in public. It is an absolute right to carry, not conditional or restricted to a specific mode of carry.


     
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    henrybowman in reply to Mac45. | April 4, 2021 at 5:16 pm

    “It was not clearly applied to state actions, until the 14th Amendment was ratified. So, whether individual states and their sub-jurisdictions impose infringing regulations upon the ownership and possession of firearms and other weapons is irrelevant to the argument; as the Constitutional prohibition went into effect in 1868.”

    You make an important point that deserves further unburying.

    The effect of the ruling in McDonald was not that the Second Amendment was incorporated onto the states in 2010 — it was that it was incorporated onto the states all the way back in 1868 and only recently acknowledged — and all contravening state law between then and now has been and still is unconstitutional.

    So arguing that “long-standing law” sets up some sort of legally-binding tradition is gaslighting… same as arguing that certain guns that were unconstitutionally restricted in 1934 aren’t covered by the Second Amendment because “they are not in widespread use,” when the only reason for this is the unconstitutional law in the first place.


     
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    DaveGinOly in reply to Mac45. | April 5, 2021 at 1:44 pm

    “Rescinding” the 2nd Amendment would have just about zero effect.

    The preamble to the BOR states that its (the BOR’s) purpose is to guarantee that the Constitution doesn’t authorize Congress to invade natural and civil rights. The actual bar to such invasion is the lack of enumerated authority in the organic Constitution. According to the preamble, the 2nd Amendment is merely guaranteeing that Congress has no authority to “infringe” upon the (recognized) right to arms. Repeal of the 2nd Amendment would not change that fact one whit.

    Then there is the problem of the various state constitutions that make positive statements about the right to arms (that are even more clearly stated, without the “militia” language that so many find confusing). The right plainly exists, and in no uncertain terms, and some states (at least) understand the meaning of the text of their own constitutions. How is it that unlicensed carry (both openly and concealed) in those states is completely ignored when determining whether there is a “tradition” of unlicensed carry?

Citing the Twilight Amendment a.k,a, “penumbras and emanations”.

First, they came for the babies, “our Posterity”. Wicked.


 
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alaskabob | April 4, 2021 at 12:07 am

Arguing for the State of California, the Attorney General considered the magazine ban could limit a magazine to one round. Piece by piece the BoR is being reduced to a Marxist shell.


     
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    DaveGinOly in reply to alaskabob. | April 5, 2021 at 2:27 pm

    Well, of course. If the goal is to make people more safe, then why stop at 10 rounds? However any state-imposed limit above “zero” is arbitrary, because any number of rounds above zero still cause a firearm to be a potential threat to the community when it’s in the wrong hands. He’s actually making a good argument for why such legislation is unconstitutional (for being arbitrary).


 
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JDmyrm | April 4, 2021 at 12:38 am

To quote judge Hand: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.

These are false hopes; Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”


 
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wjf1939 | April 4, 2021 at 7:26 am

Maybe it’s time to eliminate the lawyers.


 
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NJ observer | April 4, 2021 at 8:55 am

215 pages to obfuscate and corrupt the meaning of 27 words.
The courts have become a boil on the a** of the American republic which are in need of lancing.


 
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guyjones | April 4, 2021 at 10:14 am

SCOTUS cannot continue its disturbing and indefensible pattern of rejecting certiorari for a slew of firearms cases that should have been heard. The circuit courts are steadily whittling away the Second Amendment and ignoring Heller. As Justice Thomas ruefully noted in his comments when the Court denied cert to one case, the Court clearly views the Second Amendment as a “disfavored right.”


 
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jeffersonrb | April 4, 2021 at 10:34 am

Free and fair elections are a thing of the past. What would make the 2nd Amendment an exception? Anyone?


 
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maxmillion | April 4, 2021 at 11:00 am

Forget parsing “to bear” to see if they erased it. They clearly erased the “shall not be infringed” part and that’s the problem.


 
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CommoChief | April 4, 2021 at 12:00 pm

Cody did a nice job laying this out. I would simply add that I don’t see any consistency in the logic of the 9th circuit with regard to creating, interpreting and applying a test based upon a ‘historical lens’ to other decisions.

Let’s say voting rights. There is a great deal of historical record ripe for application on that fundamental right of citizenship. Presumably the 9th circuit would respond that the post civil war amendments, the 19th amendment and subsequent civil rights act(s) have overridden that clear historical record limiting voting to white, male, property owners aged 21 and over.

My response to that is the SCOTUS decisions in McDonald and Heller have overridden their historical test.

The 9th circuit is clearly substituting their political and ideological political policy preferences in place of very clear SCOTUS precedent.


     
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    randian in reply to CommoChief. | April 4, 2021 at 10:45 pm

    The 9th circuit is clearly substituting their political and ideological political policy preferences in place of very clear SCOTUS precedent.

    Why shouldn’t they, since SCOTUS refuses to defend that precedent? Heller and McDonald are meaningless decisions without SCOTUS taking the lower courts to task.


 
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texansamurai | April 4, 2021 at 2:05 pm

don’t particularly care what some twit(or twits)in the 9th circus decide/have to say–regards the 2nd, believe the actual language is ” to keep AND bear arms shall not be infringed “–” bear ” means carry in whatever fashion the bearer deems necessary/prudent–difficult to conceal long arms and certain other firearms

regardless of the semantics, don’t really care what ANY bunch of lawyers(robed or otherwise) deign to opine–they lack any authority to deny the rights guaranteed by the 2nd


 
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buckeyeminuteman | April 4, 2021 at 7:19 pm

These mental gymnastics are exhausting. Literally everything in America requires one to be a gold medal mental gymnast anymore these days.


 
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NavyMustang | April 5, 2021 at 6:39 am

“If the Circuit finds historical evidence that the prohibited conduct has been the subject of “longstanding, accepted regulation,” then the Circuit concludes that conduct is not protected by the Second Amendment…”

If this is the first step that they use, then citizens will never be able to carry in Hawaii.

I was a beat cop in Honolulu. Other than law enforcement, there was only one person who was granted a CCW permit (I’ve never even heard of an open carry permit in Hawaii). That person was the Honolulu PD armorer. Not one person more. To be fair, that was in 2008, the year I left “paradise”, but I have a funny feeling it hasn’t changed.

It was pretty much accepted that it was impossible to get a carry (concealed or open) permit on Oahu. Good for Young that he is raising the BS flag on this, but he has a tough row to hoe with respect to this. I wish him all the luck in the world.

But nearly every circuit has refused to employ the test established by the Supreme Court to evaluate Second Amendment challenges
And there’s the real problem. If no one is going to insist* they follow those decisions, then our judicial branch is no longer a defendant of the Constitution. Yeah, I know, long time coming.

(* By “insist” I mean impeachment, disbarment, or personal physical consequences against the un-constitutional judges.)

law-abiding armed individuals somehow “infringe[] on states’ police powers,”
That would require the mandate for police powers to derive from something other than the people themselves. And our governing documents would unequivocally say to that, “You’re liars!”


     
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    DaveGinOly in reply to GWB. | April 5, 2021 at 3:08 pm

    A very good point. The state’s police powers emanate from the people. The people can’t possibly infringe upon their own authority. Any such “infringement” would actually be a denial that the authority was ever extended to the state.

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