HI: 9th Circuit panel rules 2A protects right to carry gun in public

[ELB]

(Reuters) - A federal appeals court ruled on Tuesday that the U.S. Constitution’s Second Amendment protects a right to openly carry a gun in public for self-defense, rejecting a claim by Hawaii officials that the right only applies to guns kept at home.

This is only a panel decision, I am pretty sure the other judges will be open to an en banc decision to overrule the panel, but still interesting.

https://www.reuters.com/article/us-usa- ... ce=Twitter

The decision did not change the court’s earlier ruling that the Second Amendment does not guarantee a right to carry concealed firearms in public.

[ELB]

Opinion: http://cdn.ca9.uscourts.gov/datastore/o ... -17808.pdf


Summary from Opinion:

This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Civil Rights

The panel reversed the district court’s dismissal of claims brought against the County of Hawaii, dismissed plaintiff’s appeal as to the State of Hawaii, and remanded, in plaintiff’s 42 U.S.C. § 1983 action alleging that the denial of his application for a handgun license violated his Second Amendment right to carry a loaded firearm in public for self-defense.

The County of Hawaii’s Chief of Police denied plaintiff’s application to carry a handgun because he failed to satisfy Hawaii’s licensing requirements, as set forth in section 134-9 of the Hawaii Revised Statutes. Section 134-9 acts as a limited exception to the State of Hawaii’s "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." H.R.S. §§ 134-23, 134-24, 134-25. The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. Plaintiff alleged that the County violated the Second Amendment by enforcing against him the State’s limitations in section 134-9 on the open carry of firearms to those "engaged in the protection of life and property" and on the concealed carry of firearms to those who can demonstrate an "exceptional case."

The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection,
see Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) (en banc), it was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. Analyzing the text of the Second Amendment and reviewing the relevant history, including founding-era treatises and nineteenth century case law, the panel stated that it was unpersuaded by the County’s and the State’s argument that the Second Amendment only has force within the home. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. The panel held that because Hawaii law restricted plaintiff in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment.

In determining the appropriate level of scrutiny to apply to section 134-9, the panel first held that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment. The panel stated that restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii’s limitation on the open carry of firearms to those "engaged in the protection of life and property" violated the core of the Second Amendment and was void under any level of scrutiny.

Dissenting, Judge Clifton stated the majority opinion disregarded the fact that states and territories in a variety of regions have long allowed for extensive regulations of and limitations on the public carry of firearms. Judge Clifton wrote that such regulations are presumptively lawful

[RoyGBiv]

Judge Clifton is a Donkey.

en Banc reversal in 3.... 2..... 1....

[KLB]

Here's another discussion of the opinion is a non-hostile forum.


http://reason.com/volokh/2018/07/24/nin ... -r#comment

[sr4440]

Who are these people and what have they done with the 9th Circuit Court??? I never would have expected the 9th to have such a profound attack of common sense in my life time!!


Joe

[C-dub]

I'm not sure which thread it was in, but I think someone else mentioned, regarding a similar recent ruling from the 9th, that they don't want to be the ones to send another case like this up to the SCOTUS to get a ruling that would probably grant/recognize more rights nationwide.

[RoyGBiv]

I'm not sure which thread it was in, but I think someone else mentioned, regarding a similar recent ruling from the 9th, that they don't want to be the ones to send another case like this up to the SCOTUS to get a ruling that would probably grant/recognize more rights nationwide.

https://texaschlforum.com/viewtopic.php ... 7#p1213097

[Paladin]

I'm not sure which thread it was in, but I think someone else mentioned, regarding a similar recent ruling from the 9th, that they don't want to be the ones to send another case like this up to the SCOTUS to get a ruling that would probably grant/recognize more rights nationwide.

https://texaschlforum.com/viewtopic.php ... 7#p1213097

[ELB]

Who are these people and what have they done with the 9th Circuit Court??? I never would have expected the 9th to have such a profound attack of common sense in my life time!!


Joe

Statistical anomaly. It was a panel of three, not the whole court. Occasionally you get two of the few 9th court justices who are not completely in the bag for the left together on a panel and constitutionality pops out.

I'm sure Hawaii will ask for an en banc court, and the en banc court will quickly suppress this outbreak of rationality. I don't think this is one they can leave alone because they don't want to send it higher to the SCOTUS. If they do leave it alone, then not only Hawaii but California, Oregon, Washington, Alaska, Idaho, Montana, and Nevada will also be bound by this decision. The last four states on that list won't care so much, but Cali in particular will have a herd of cows if they have to allow open carry of loaded guns, and Oregon and Washington will also (despite having concealed carry laws already, their many liberal cities and state goverments will raise heck).

Oh, Guam and the Northern Marianas Islands are also in the 9th's jurisdiction, and I am sure they will want Hawaii to fight this.

[RoyGBiv]

The last four states on that list won't care so much, but Cali in particular will have a herd of cows if they have to allow open carry of loaded guns,

I believe the majority decision said that it's ok to ban concealed carry but you cannot also ban open carry, since banning both fails intermediate 2A scrutiny, making the of "bearing" arms impossible. The decision leaves open the "how" on the "bearing" of arms, so, if the affected states all had shall-issue concealed carry laws, I believe this ruling would be satisfied.

Better stated HERE and HERE.

[ELB]

The last four states on that list won't care so much, but Cali in particular will have a herd of cows if they have to allow open carry of loaded guns,

I believe the majority decision said that it's ok to ban concealed carry but you cannot also ban open carry, since banning both fails intermediate 2A scrutiny, making the of "bearing" arms impossible. The decision leaves open the "how" on the "bearing" of arms, so, if the affected states all had shall-issue concealed carry laws, I believe this ruling would be satisfied.

Better stated HERE and HERE.

Yes, you might be right on that.

[ScottDLS]

Who are these people and what have they done with the 9th Circuit Court??? I never would have expected the 9th to have such a profound attack of common sense in my life time!!


Joe

Statistical anomaly. It was a panel of three, not the whole court. Occasionally you get two of the few 9th court justices who are not completely in the bag for the left together on a panel and constitutionality pops out.

I'm sure Hawaii will ask for an en banc court, and the en banc court will quickly suppress this outbreak of rationality. I don't think this is one they can leave alone because they don't want to send it higher to the SCOTUS. If they do leave it alone, then not only Hawaii but California, Oregon, Washington, Alaska, Idaho, Montana, and Nevada will also be bound by this decision. The last four states on that list won't care so much, but Cali in particular will have a herd of cows if they have to allow open carry of loaded guns, and Oregon and Washington will also (despite having concealed carry laws already, their many liberal cities and state goverments will raise heck).

Oh, Guam and the Northern Marianas Islands are also in the 9th's jurisdiction, and I am sure they will want Hawaii to fight this.

This.

[DocV]

[K.Mooneyham]

I want y'all to think about this. Texas passed licensed open carry, and it's been a little while now. However, as many have pointed out on this forum, how many folks actually open carry? Now, I know some will say something like "Well, we can conceal under the same license, so why open carry?" However, there is also a LARGE stigma attached to open carry, even among pro-2A, pro-self-defense people...and there is the common refrain of "if you open carry, you will be immediately shot or have your gun taken away". I say all this to set up a question: if the court allows open carry only, how many will take advantage of that versus allowing concealed carry only? IMHO, if they allow open carry but not concealed, they've limited the right to bear DE FACTO because of the stigma attached to open carry...and THEY KNOW IT!