Tuesday, July 24, 2018

9th Circuit Holds That Open Carry Is Protected Under the Second Amendment

       A 3-judge panel of the Ninth Circuit Court of Appeals has issued a decision in Young v. State of Hawaii (PDF of the decision here) reversing a decision of the district court dismissing Young's suit for not setting forth a claim recognized at law.

       The basic background is as follows: The State and County of Hawaii only allow the carrying of a weapon outside the home pursuant to a concealed carry permit or an open carry permit. Concealed carry permits are, in practice, impossible to obtain. The open carry permit is only issued to security guards and those with similar jobs, and only allows carrying a weapon while on duty. Young wanted to carry a weapon for self-defense, and had twice applied for and been denied an open carry permit. He filed suit to contest his denials, which suit was dismissed for failure to state a cause of action, because, the district court reasoned, the Second Amendment did not apply to bearing a weapon outside the home. Young appealed.

      It is notable that the author of this opinion is Diarmuid O'Scannlain, who wrote the original opinion in Peruta v. San Diego, which struck down San Diego's concealed carry ban as violative of the Second Amendment. O'Scannlain's decision in Peruta, as you might remember, was reversed by an en banc panel of the Ninth Circuit, which held that concealed carry was beyond the scope of Second Amendment protections. O'Scannlain has come back with a vengeance in this decision. Obviously he is stuck with the final decision in Peruta, but provides a very interesting historical review of laws and judicial decisions addressing the open carry of weapons, rebuking the dissent--sometimes with a large dose of sarcasm. It's a long opinion but well worth the read.

      The basic holding of the case is that the core right protected by the Second Amendment includes the open and peaceable carrying of weapons outside the home, including handguns. The decision doesn't specifically address whether a state or local government can require a license or payment of a fee, although if the issue had been raised, I suspect that such a requirement would also have been struck down. That may be an issue for another time.

      So, what does this decision mean? I guess we'll know in a couple of weeks when the deadline for filing a motion for reconsideration passes (the deadline for filing an appeal to the Supreme Court--certiorari--is longer, but I doubt that Hawaii will want to appeal this to the Supreme Court). It is possible that, like Peruta, this case could be overturned by an en banc panel of judges. If this decision stands, it should spin off a whole slew of suits against California and/or its counties.

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