In a 127-page majority opinion, an 11-judge panel of the Ninth U.S. Circuit Court of Appeals has ruled the Second Amendment does not guarantee an individual right to openly carry firearms for self-defense.
In a spirited dissent, Judge Dairmuid F. O’Scannlain wrote, “This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, we now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.
“In so holding,” the judge wrote, “the majority reduces the right to ‘bear Arms’ to a mere inkblot.”
The majority ruling, written by Judge Jay S. Bybee, came in a case from Hawaii. George Young, a resident of Hawaii County (the “Big Island”), sued after he was denied a carry permit for self-defense. He challenged the law as a violation of the Second Amendment.
“After careful review of the history of early English and American regulation of carrying arms openly in the public square,” Judge Bybee wrote, “we conclude that Hawai‘i’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.”
According to various observers, this could take the question about the parameters of the “right to bear arms” directly to the U.S. Supreme Court with its new conservative majority.
The National Shooting Sports Foundation was quick to condemn the ruling.
“The blatant defiance of the Supreme Court to undermine Heller and hollow out rights afforded to individuals by their Creator and clearly protected by the Constitution is unconscionable,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “It is with amazing boldness that the Ninth Circuit brazenly sets aside not just the previous findings of the Supreme Court, which legally they are bound to apply, but actively chooses to ignore plain English and refuses to acknowledge the right to bear arms. We look forward to filing an amicus brief when this heads to the Supreme Court.”
As noted by Reason magazine, Hawaii’s “highly restrictive carry permit policy…requires that applicants demonstrate ‘the urgency or the need’” to openly carry a firearm.
In his majority opinion, Judge Bybee went through a lengthy history of laws dating back to old England’s restrictions on carrying arms in public. Working through about 500 years of English and American law, his ruling maintains states have the authority to regulate firearms.
“Accordingly, Hawai‘i’s firearms-carry scheme is lawful,” Bybee stated in his opening summary.
Reason noted the ruling applies to all states in the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
The high court has not ruled on a Second Amendment case since the 2010 ruling in McDonald v. City of Chicago, a case brought by the Second Amendment Foundation.
