9th Cir­cuit judges delve deep into his­tory, find right to carry firearms

The Washington Times Weekly - - National - BY STEPHEN DINAN

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.

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