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 bear—i.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
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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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