On Wednesday afternoon, an en banc panel of the Ninth Circuit Court of Appeals handed down a decision that’s sure to get the attention of the Supreme Court, declaring that the state of Hawaii’s requirement that residents hoping to openly carry a firearm first prove to the state that they have an “urgency of need,” are of “good moral character,” and are “engaged in the protection of life and property.”
The opinion in Young v. Hawaii, taken in conjunction with the Ninth Circuit’s decision a few years ago in a case called Peruta vs. San Diego, means that the largest appellate court in the country has declared that the average citizen has no right to bear arms at all; instead, the state has the privilege and power to grant certain people the ability to carry a firearm in self-defense.
I’m going to quote the summary of the court’s decision in Young in its entirety:
The en banc court affirmed the district court’s dismissal of an action challenging Hawai‘i’s firearm licensing law, Hawai‘i Revised Statutes § 134-9(a), which requires that residents seeking a license to openly carry a firearm in public must demonstrate “the urgency or the need” to carry a firearm, must be of good moral character, and must be “engaged in the protection of life and property.”
Appellant George Young applied for a firearm-carry license twice in 2011, but failed to identify “the urgency or the need” to openly carry a firearm in public. Instead, Young relied upon his general desire to carry a firearm for selfdefense. Both of Young’s applications were denied. Young brought a challenge to Hawai‘i’s firearm-licensing law under the Second Amendment and the Due Process Clause of the Fourteenth Amendment.
The district court upheld Hawai‘i’s statute. The en banc court first held that the scope of its review would be limited to Young’s facial challenge to HRS § 134-9. There was no need to determine whether Hawai‘i County properly applied § 134-9, because Young did not bring an as applied challenge.
The en banc court noted that this Court has previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). The question presented in this case, accordingly, was limited to whether individuals have a right to carry weapons openly in public. To answer that question, and consistent with the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the en banc court first considered whether Hawai‘i’s law affects conduct protected by the Second Amendment.
After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions, and therefore, the conduct they regulate is outside the historical scope of the Second Amendment. The en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.
The en banc court rejected Young’s argument that HRS § 134-9 is invalid as a prior restraint because it vests chiefs of police with unbridled discretion to determine whether a permit is issued. Joining its sister circuits, the en banc court held that the prior restraint doctrine does not apply to Second Amendment challenges to firearm-licensing laws. The en banc court also rejected, as premature, Young’s due process argument that HRS § 134-9 does not provide adequate process to challenge the denial of a carry-permit application. The en banc court noted that Young did not seek review under HRS § 91-9 before bringing suit. So, Hawai‘i has not yet denied him the opportunity for appellate review. Because Young has not actually been denied a hearing, his procedural due process claim was speculative, and there was no need to reach it.
Dissenting, Judge O’Scannlain, joined by Judges Callahan, Ikuta, and R. Nelson, would hold that both HRS § 134-9 and the 1997 County regulation destroy the core right to carry a gun for self-defense outside the home and are unconstitutional under any level of scrutiny. Judge O’Scannlain stated that 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. In his view, the majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.
Dissenting, Judge R. Nelson, joined by Judges Callahan and Ikuta, concurred with Judge O’Scannlain’s dissent concluding that Hawaii Revised Statute 134-9 violates the Second Amendment. Judge R. Nelson wrote that the majority erred not only in holding the statute facially constitutional, but also in rejecting Young’s as-applied challenge. He also wrote separately to highlight the brazenly unconstitutional County of Hawaii Regulations applying HRS § 134-9, stating that there should be no dispute that any law or regulation that restricts gun ownership only to security guards violates the Second Amendment.
This is an absolutely bizarre decision by the Ninth Circuit. In order to reach their conclusions, the judges in the majority decided that laws in place in Hawaii before it ever became a state take precedence over the clear and unambiguous language of the Second Amendment, which declares that the right of the people to both keep and bear arms shall not be infringed. According to the Ninth Circuit, those “longstanding traditions” in Hawaii law matter more than the Constitution itself.
As Judge Diarmuid O’Scannlain declared in his powerful dissent to the majority opinion:
The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II (emphasis added). 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 selfdefense in any other place.
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 majority reduces the right to “bear Arms” to a mere inkblot. The majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.
While the decision by the Ninth Circuit is absolutely atrocious, the timing actually couldn’t be better. On Friday of this week the Supreme Court is expected to take up a case in conference called New York State Rifle & Pistol Association v. Corlett, which challenges New York State’s “may-issue” licensing scheme for carry licenses, and thanks to the Ninth Circuit’s decision, there’s now an even more compelling reason for the Court to accept a carry case. It could be NYSPRA v. Corlett, or SCOTUS could hold off a few more weeks until the Young case arrives on its doorstep, but there is now a clear conflict on the right to bear arms in the various appellate courts, and that greatly enhances the odds of the Court taking at least one of these cases in the very near future.
If and when that happens, expect Democrats to once again call for the nuclear option on the filibuster and threaten to pack the Supreme Court full of anti-gun justices. We first saw those threats in 2019 when SCOTUS accepted a case challenging a New York City law prohibiting the transfer of lawfully owned firearms, but the Court ultimately declared that case moot after the city changed the law before oral arguments were held. Now SCOTUS has not one but two opportunities to take a case dealing with the right to bear arms in self-defense, and Democrats are sure to respond with more threats of court packing in return.
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