Carrying Guns in Public Is Not a Constitutional Right, Ninth Circuit Rules
The majority of an 11-judge en banc Ninth Circuit panel concluded that the Second Amendment does not guarantee the right to carry firearms outside the home.
by Nicholas Iovino, Court House News, March 24, 2021
SAN FRANCISCO (CN) — Americans have no right to carry guns in public, a divided en banc Ninth Circuit panel ruled Wednesday, reversing a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional.
“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, wrote for the majority of an 11-judge panel in a 127-page opinion.
Looking back on 700 years of legal history dating back to 14th century England, seven judges in the majority found “overwhelming evidence” that the law has never given people “an unfettered right to carry weapons in public spaces.”
The seven-judge majority traced legal texts and laws back to 1348 when the English parliament enacted the statute of Northampton, which banned carrying weapons in fairs or markets or before the King’s justices. It also cited multiple laws from colonial and pre-Civil War America in which states and colonies restricted the possession of weapons in public places.
“The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces,” Bybee wrote. “The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”
Writing for the dissent, Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, said the majority failed to properly interpret the U.S. Supreme Court’s 2008 decision in District of Columba v. Heller, which overturned Washington D.C.’s total ban on handguns and a requirement that rifles and shotguns be kept unloaded and disassembled or bound by a trigger-lock device.
“The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right,” O’Scannlain wrote.
Plaintiff George Young sued Hawaii in 2012 for denying his applications for permits to carry a concealed or openly visible handgun. A Hawaii state law requires a license to carry a gun in public.
Under a Hawaii County regulation, the police chief may only grant such licenses to those who need a gun for their job or who show “reason to fear injury” to their “person or property.” No one other than a security guard has ever obtained an open-carry license in Hawaii, lawyers for the county acknowledged during a Ninth Circuit hearing in 2018.
In July 2018, a divided three-judge Ninth Circuit panel ruled that carrying a gun in public is a constitutional right and that Hawaii cannot deny permits to all non-security guard civilians who wish to exercise that right.
On Wednesday, the en banc panel majority reversed that decision, finding the Supreme Court’s 2008 Heller decision is not inconsistent with state laws that restrict the right to carry arms in public.
“Heller found that the pre-existing right to keep and bear arms is not a right to ‘carry any weapon whatsoever in any manner whatsoever and for whatever purpose,’” Bybee wrote for the majority.
Young had argued that Hawaii’s 169-year-old law impermissibly limited open-carry permits to security guards, as applied in regulations adopted by the County of Hawaii in 1997.
During oral arguments last September, a lawyer representing the Aloha State said the law does not limit open-carry licenses to security guards. He cited the Hawaii Attorney General’s 2018 guidance stating that an applicant can obtain an open-carry permit by demonstrating “a need to carry a firearm for protection that substantially exceeds the need possessed by ordinary law-abiding citizens.”
The state says the attorney general’s 2018 guidance overrides the county’s 1997 regulation that ostensibly limits open-carry licenses to security guards.
Despite that argument, O’Scannlain found the fact that the 1997 regulation remains “on the books” and that Hawaii has never granted permits to a non-security guard civilian shows the state has been unconstitutionally restricting Second Amendment rights.
“In the County of Hawaii, the historical dearth of open-carry permits for private citizens is no mere ‘pattern or practice,’” O’Scannlain wrote. “It is a matter of official policy.”
In a concurring dissent, U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, argued the panel should have remanded the case back to district court to determine if Young could plausibly allege Hawaii’s law has been applied in an unconstitutional manner.
The failure to do so could have widespread consequences for people suing to protect their constitutional rights, he said, especially for litigants representing themselves without an attorney. Young originally filed his lawsuit pro se but was represented by lawyers in his appeal.
“It will preclude a host of future as-applied constitutional challenges under the First, Fourth, Fifth, and Eighth Amendments previously recognized by this court — especially for pro se civil rights plaintiffs,” Nelson wrote.
By upholding state laws that restrict carrying guns in public, the Ninth Circuit joined three other circuit courts that have issued similar rulings: the Second, Third and Fourth Circuits. Meanwhile, the D.C. Circuit and Seventh Circuit have struck down state laws that ban carrying guns in public. That makes the dispute ripe for Supreme Court review.
Although some circuit courts have upheld restrictions on carrying guns in public, Young’s attorney Alan Beck, of San Diego, argued that no court has gone as far as the Ninth Circuit did in its en banc opinion Wednesday.
“The Ninth Circuit’s opinion, which finds the Second Amendment right does not apply outside the home at all, contradicts the decisions of every federal circuit court in the country that has ruled on this issue,” Beck said in an email. “We will be seeking Supreme Court review in order to overturn the Ninth Circuit’s erroneous decision.”
Bill Clinton appointees William Fletcher, M. Margaret McKeown, Kim McLane Wardlaw, and Chief Ninth Circuit Judge Sidney Thomas joined Bybee in the majority. Circuit Judges Richard Clifton, a George W. Bush appointee, and Michelle T. Friedland, a Barack Obama appointee, also sided with the majority.
Circuit Judges Sandra Ikuta and Consuelo Callahan, both George W. Bush appointees, joined O’Scannlain and Nelson in the dissent.
PDF: 127-page opinion