The opinion of an 11-judge panel of the U.S. Ninth Circuit Court of Appeals on Wednesday is that there is no right to carry firearms outside the home that is protected by the Constitution.
The 7-4 majority decision came in the case of Hawaii resident George Young, whose repeated attempts to obtain a permit go back as far as 2011. The court sided with a previous district court ruling upholding Hawaii's notoriously strict gun laws that largely bar either lawful concealed carry or open carry, save for seldom-issued permits.
While the Ninth Circuit, in review of the Peruta case in 2016, said that concealed carry is not protected by the Second Amendment, pointing instead to open carry as the default, the Young court this week said open carry is likewise subject to restriction.
"After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawaii’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawaii’s firearms-carry scheme is lawful," wrote Judge Jay Bybee for the majority this week.
Bybee is a 2003 appointment by President George W. Bush who recently took senior status and whose seat was filled by Trump-appointed Lawrence VanDyke last year.
Bybee's opinion, which spans 112 pages, details past firearm restrictions and protections – many of which are contradictory – dating back to the medieval English decrees and laws such as the Statute of Northampton.
The case revolved around Young’s repeated attempts to obtain a permit going back as far as 2011, all of which were rebuffed in a state where it is notoriously hard to be granted a carry permit of any sort. As Guns.com discovered in 2014, state officials characterized that applications were routinely denied with only 63 applications for concealed carry licenses submitted to Hawaii’s four-county police departments since 2000 and few granted. The Washington Free Beacon found that in 2016 there wasn’t a single carry permit issued in the state.
"In so holding, the majority's decision reduces the right to 'bear Arms' to a mere inkblot," - Judge Diarmuid O'Scannlain, in dissent.
The four judges dissenting from the majority slammed the ruling, arguing that Bybee was far off base.
"The Second Amendment to the United States Constitution guarantees 'the right of the people to keep and bear Arms,'" said Judge Diarmuid O'Scannlain in a blistering dissent joined by Judges Callahan, Ikuta, and Nelson. "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."
Anti-Gun Crowd Goes Wild
Young's case, which has been circulating in one form or another for a decade, had long piqued the interests of those in favor of strict gun laws and bans. Both Everytown and Giffords had submitted briefs supporting their views and opposing Young's pro-carry arguments. The groups felt vindicated by this week's opinion, penned by a Bush appointee with nominally conservative views.
“Today’s ruling, joined by respected appellate judges across the ideological spectrum, is the latest reminder that arguments against reasonable, life-saving gun laws rarely hold up in the courtroom,” said Eric Tirschwell, managing director for Everytown Law. “As the court recognized, states and localities have extremely broad power to restrict the carrying of firearms in public spaces."
On to the Supreme Court!
The Ninth Circuit, whose 15 federal judicial districts span the West Coast, holds sway across Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and various Pacific territories. However, this week's ruling could have wider ramifications and, if appealed to the U.S. Supreme Court, could see further challenge.
“We are very disappointed in the outcome of this case. As the dissent pointed out, the Ninth Circuit has effectively eliminated the word ‘bear’ from the Constitution,” explained Joseph Greenlee with the Firearms Policy Coalition, one of the pro-2A groups that have filed briefs in support of Young. “Now that tens of millions of Americans have been told, for the first time ever, that they have no right to carry a firearm, it is more important than ever for the Supreme Court to address the issue and define the right to ‘bear arms.’”
FPC has similar carry law challenges underway in New Jersey, Maryland, Pennsylvania, and New York City. Further, the Supreme Court is set to consider whether to hear a different carry case – NYSRPA v. Corlett – at its upcoming conference on Friday.
Banner photo: Chris Eger/Guns.com