Appeals court upholds ban on carrying guns in public

States can prohibit people from openly carrying guns in public, a federal appeals court ruled Wednesday, adding a voice to a heated issue that the U.S. Supreme Court may soon address.

In a 74 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld a Hawaii law that bans residents from openly carrying firearms without a license, which is issued only to those who can show they need the weapons to protect life or property. Police and members of the armed forces are exempt.

California bans openly carrying firearms in most of the state. Sheriffs can issue licenses to carry concealed weapons but they are virtually unavailable in the state’s most populous counties.

“Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square,” Judge Jay Bybee, one of the appeals court’s most conservative members, said in the majority opinion.

“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” Bybee said. “It remains as true today as it was centuries ago, that the mere presence of such weapons presents a terror to the public and that widespread carrying of handguns would strongly suggest that state and local governments have lost control of our public areas.”

In dissent, Judge Diarmuid O’Scannlain said the right to “keep and bear arms,” declared in the Second Amendment, “must include, at the least, the right to carry a firearm openly for selfdefense.” He was joined by Judges Consuelo Callahan, Sandra Ikuta and Ryan Nelson.

The ruling comes as the Senate debates background checks for gun purchases in the wake of mass shootings in Boulder, Colo., and Atlanta that killed 18 people in the past week. President Biden called Tuesday for a renewed ban on assault weapons, highcapacity firearms that reload automatically. A national ban on the sale of such weapons expired in 2004.

The Supreme Court ruled in 2008 that the Second Amendment allows Americans to possess handguns at home for selfdefense but has not decided whether it allows carrying firearms in public. When the Ninth Circuit upheld California’s ban on publicly carrying concealed handguns in 2016, the Supreme Court denied review of an appeal by gun advocates and left the ruling intact.

Appeals courts have reached diverse conclusions on state laws banning openly carrying handguns, and the high court could decide next week whether to take up the issue in an appeal of a ruling upholding a similar law in New York state.

Alan Beck, a lawyer for the gun owner who challenged the Hawaii law, said he would also seek review by the Supreme Court “to overturn the Ninth Circuit's erroneous decision.”

Attorney Eric Tirschwell of the guncontrol group Everytown for Gun Safety said the ruling was “the latest reminder that arguments against reasonable, lifesaving gun laws rarely hold up in the courtroom.”

A smaller panel of the appeals court had declared the Hawaii law unconstitutional in 2018, in a 21 decision by O’Scannlain, but a majority of the full court voted to set that ruling aside and ordered a new hearing before a larger panel.

Bybee, in Wednesday’s ruling, said the meaning of the Second Amendment could be traced back to English law, which as early as 1299 required citizens to obtain a license from the king to carry arms in public. American colonies started adopting similar laws in the late 17th century, he said, and most early state laws banned carrying guns “in the public square.”

“The heart of the Second Amendment is ‘defense of hearth and home,’ ” Bybee said, quoting language from the Supreme Court’s 2008 ruling. “The power of the government to regulate carrying arms in the public square does not infringe in any way on the right of an individual to defend his home or business.”

But O’Scannlain, in dissent, said the court majority “reduces the right to ‘bear arms’ to a mere inkblot.”