9th Circuit judges delve deep into history, find right to carry firearms
Americans have a constitutional right to openly carry firearms, a federal appeals court ruled last week, delivering a major victory to gun rights supporters.
While courts previously have recognized the right to own firearms to protect the home, the decision by the three-judge panel of the U.S. Court of Appeals for the 9th Circuit extends that into the public sphere, calling it a “core Second Amendment right.”
In a 2-1 ruling, the panel said Hawaii’s law severely restricting guns outside homes or businesses tramples on that right.
Judge Diarmuid F. O’Scannlain, who wrote the majority opinion, scoured history from Geoffrey Chaucer’s England to the American antebellum period to trace the history of gun rights. He ruled that there is little doubt the authors of the Second Amendment were comfortable with Americans openly carrying weapons for self-defense, and until the Constitution is changed, that remains the standard.
“For better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” the judge wrote.
The case could be appealed to the full 9th Circuit, frequently cited as the most liberal appeals court in the country, where the decision could be overturned.
But it eventually would end up before the U.S. Supreme Court, the judges in the case predicted, adding yet another highprofile issue to the battle over President Trump’s nomination of Judge Brett M. Kavanaugh to fill the looming vacancy on the high court.
The Supreme Court, in a series of rulings over the past decade, has held that the Second Amendment guarantees a personal right to bear arms, rejecting arguments of some constitutional scholars that the amendment applied only to state militias.
The court has said some restrictions on gun ownership are allowed but has yet to set those limits.
A number of localities have tested the boundaries by restricting concealedcarry or banning certain types of firearms or add-ons.
Hawaii’s law generally requires that guns be kept at homes or businesses, though state code Section 134-9 says residents can obtain a license to carry a loaded handgun if they can prove to the local police chief that they fear for their safety or property.
George Young, a resident of Hawaii County, also known as the Big Island, applied for a carry license in 2011 but was denied twice.
Indeed, county officials acknowledged that they had never approved a carry permit.
Judges O’Scannlain and Sandra S. Ikuta, both appointed by Republican presidents, said that made the policy sound more like a gun ban than a carefully balanced safety test.
But Judge Richard R. Clifton, also a Republican appointee to the court, said Hawaii’s restrictions seemed reasonable. He called them the sort of “good cause” restrictions that have met approval in appeals courts on the East Coast.
Both the majority and minority opinions delved into history for guidance about gun rights, just as the Supreme Court did in its 2008 and 2010 decisions establishing a national personal right to bear arms.
Judge O’Scannlain identified a number of states and court rulings in the early 1800s that envisioned an unfettered right to carry weapons in public. He said if the right extended only to the home, then the authors of the Second Amendment would have protected the right to “keep” arms. Instead, they enshrined a right to “bear” arms.
Judge Clifton faulted Judge O’Scannlain’s history, saying his version of gun rights relied too heavily on slave-holding Southern states in the years surrounding the Civil War.
“A more balanced historical analysis reveals that states have long regulated and limited public carry of firearms and, indeed, have frequently limited public carry to individuals with specific self-defense needs. Hawaii’s regulatory framework fits squarely into that long tradition,” he concluded.
The country’s appeals courts have split. The court in the District of Columbia has reached the same conclusion as the 9th Circuit ruling, finding a right to carry firearms in public. The 7th Circuit has come close.
But the 2nd, 3rd and 4th circuits have ruled in favor of gun controls, saying states and localities must have leeway to deem guns a threat to public safety.
“In light of the already existing circuit split, I assume that the Supreme Court will find it appropriate at some point to revisit the reach of the Second Amendment and to speak more precisely to the limits on the authority of state and local governments to impose restrictions on carrying guns in public,” Judge Clifton said.
Gun control advocates were dismayed by Tuesday’s ruling.
Hawaii Attorney General Russell Suzuki said it “would undermine Hawaii’s strong gun control law and our commitment to protect the public.”
He said he will consult with Hawaii County to figure out the next steps.
Hannah Shearer, litigation director at the Giffords Law Center, said guns in public are dangerous to both gun owners and non-owners.
“The open carry of firearms is particularly dangerous: It diverts law enforcement resources to investigating gun carriers and chills the exercise of First Amendment and other constitutional rights,” Ms. Shearer said.