Saturday, December 15, 2018
Hawai'i Free Press

Current Articles | Archives

Saturday, July 28, 2018
​Ninth Circuit Stunner: Second Amendment Protects Public Open Carry!
By Selected News Articles @ 12:46 PM :: 1549 Views :: Second Amendment

Ninth Circuit Stunner: Second Amendment Protects Public Open Carry!

From NRA-ILA, July 27, 2018

Gun control advocates undoubtedly awoke with a piercing headache Wednesday morning as the news sunk in that the U.S. appellate court for America’s largest circuit has recognized that the Second Amendment protects a right to openly carry loaded firearms in public for self-defense. The ruling came Tuesday in the case of Young v. State of Hawaii.

George Young is a veteran infantryman, law enforcement officer, and Hawaii native who was turned down for both concealed and open carry licenses in Hawaii County, at which point he filed his own federal lawsuit challenging the county’s administration of the state’s licensing laws for firearms carry. Young’s primary claim was that the county’s denial of his applications violated his Second Amendment right to carry a loaded firearm in public for self-defense. The trial court initially dismissed his complaint, ruling that the Second Amendment “establishes only a narrow individual right to keep an operable handgun at home for self-defense,” and does not implicate the public carrying of firearms at all.

Young appealed with the help of California attorney Alan Beck, who took on his case for free. The case was heard by the U.S. Court of Appeals for the Ninth Circuit, a longstanding battlefield for attempts to vindicate the right to “bear” arms under the Second Amendment, with the challenges primarily arising from California’s notoriously strict gun control laws.  

Most recently, an en banc panel of the Ninth Circuit had dodged the question of whether various California counties could effectively limit carrying in public for self-defense to those who could show an extraordinary “need” to do so. By the time that case was heard, California had banned the open carrying of firearms in public for self-defense outright, but concealed carry licenses for this purpose remained theoretically available.

Nevertheless, California counties have considerable discretion in implementing the state licensing laws, and some local licensing officials require applicants to show an extraordinary need for self-protection that distinguishes them from the general population. This requirement by design eliminates the vast majority of otherwise qualified applicants.

Yet rather than answer the essential question of whether the Second Amendment protects a right of public carry, the en banc Ninth Circuit simply decreed that concealed carry was not protected and that the plaintiffs therefore could not make a Second Amendment complaint for denial of a license to do so. The upshot is that California residents in the affected counties have no legal option for exercising their right to bear firearms in public.

That case, however, left undecided whether open carry of loaded firearms in public for self-defense might still be protected, and that was the claim that Mr. Young pressed before the appellate court. Two out of three judges answered this question in the affirmative. “The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense,” Judge Diarmuid O’Scannlain wrote for the majority. The court therefore remanded the case to the lower court for further proceedings, presumably so it could order Hawaii County to reevaluate Mr. Young’s application for an open carry license without regard to local regulations that effectively limit such licenses to carrying for professional purposes.

What this decision means for the other jurisdictions in the Ninth Circuit – which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, Guam, and the Northern Marianas Islands – remains to be seen. The court hinted, but did not decide, that a concealed carry licensing regime might be sufficient to protect the right to bear arms by offering an “alternative channel” for lawful public carry. It also made clear, however, that access to the right cannot be limited to “a small and insulated subset” but must include, as a rule, “the typical, law-abiding citizen.” It additionally went on to clarify that “nothing in our opinion … would prevent the State from regulating the right to bear arms,” provided the regulations did not render the right a mere “illusory promise.”

That obviously leaves many questions left unanswered. The court’s decision therefore should not embolden residents in restrictive jurisdictions to immediately ignore local laws and expect to open carry with impunity. How far states and localities can go in regulating the right will undoubtedly take additional litigation to determine.    

Needless to say, moreover, the split panel decision might not represent the final word in the case. It could still be reversed by the en banc court, as was a previous pro-carry panel decision written by Judge O’Scannlain. And, of course, Hawaii officials could also petition to have the case heard by the U.S. Supreme Court.

Nevertheless, the anti-gun wing of the Ninth Circuit has few maneuvers left to continue to deny the constitutional right to bear firearms in public. It would either have to be the first circuit to declare there was no such right at all or decide that a right the Constitution ascribes to “the people” applies only to a hand-selected few. So far, even the dominant liberal contingent of the Ninth Circuit has been unable to muster a majority opinion for either proposition.

Stay tuned. We will monitor developments carefully and report on them as they occur.

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

Affordable Hawaii Coalition

ALEC

Alliance Defending Freedom

Aloha Conservative Alliance

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Senate Informer

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

Hunting, Farming and Fishing Assoc.

I Vote Hawaii

If Hawaii News

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

OHA Lies

Ohana Policy Group

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Copenull

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

TEA Party Maui

TFB Micronesia

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT