9th Circuit Court Rules on Open Carry

American gun owners, especially those living in the Ninth Circuit, which includes western states from Arizona to Alaska and out to Hawaii, are wondering what the 9th U.S. Circuit Court of Appeals’ recent ruling ‘the Second Amendment does not protect the open carry of firearms’ means for them.

First, it probably means the case of Young v. State of Hawaii is headed to the U.S. Supreme Court. Whether the high court accepts the case for review, should it actually be submitted, is another matter.

The majority opinion, written by Judge Jay Bybee, a George W. Bush appointee, spans 127 pages. It takes a historic look at the regulation of bearing arms back some 700 years, all the way to Old England and the 14th Century. As noted by Courthouse News, Judge Bybee, “The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces. The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”

But right up front, Bybee reminds readers that the Ninth Circuit has “previously held that individuals do not have a Second Amendment right to carry concealed weapons in public.” This was the opinion in a case called Peruta v. County of San Diego in 2016, another en banc review involving a full 11-judge panel.

The current case involved a Hawaii resident named George Young. He had applied for a firearm-carry license twice in 2011, the ruling noted, but could not satisfy the requirement of “urgency or…need.” Both of Young’s applications were denied.

Sources:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/12-17808.pdf

https://www.courthousenews.com/carrying-guns-in-public-is-not-a-constitutional-right-ninth-circuit-rules/

Spirited Dissent

Four judges, with Judge Diarmuid F. O’Scannlain writing the opinion, dissented. He said the majority opinion “is as unprecedented as it is extreme.”

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, including 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.

“Respectfully,” Judge O’Scannlain added later, “the majority’s opinion — and in particular, its extreme and bizarre reliance on the mere fact of some historical regulation of firearms — represents a gross misapplication of the textual and historical inquiries that Heller demands. Under appropriate inspection, the critical sources on the meaning of the Second Amendment — its text, its historical interpretations by the commentators and courts most proximate to the Founding, and its treatment by early legislatures — unequivocally demonstrate that the Amendment does indeed protect the right to carry a gun outside the home for self-defense, even if that right might be subject to some regulation at its edges.”

Depending upon which social media opinion one accepts, this boils down to the Ninth Circuit not seeing the Second Amendment as protective of a right to carry a firearm outside of one’s home for self-defense.

At the State Level

The ruling does not affect state constitutional right-to-bear-arms provisions, which exist in most (not all) western state constitutions. If you have a permit or license to carry in your state, it hasn’t been affected.

The circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, plus Guam and the Northern Mariana Islands. Of those, Washington and Alaska share the same language in their right-to-bear-arms provisions.

Insider checked with a law professor acquaintance, who explained via email the court was asked “to determine if the Second Amendment requires that a state let a person carry.”

In the majority ruling, the 9th Circuit said the amendment does not require states to allow carry. However, this doesn’t prevent states from having their “bearing arms” state constitutional provisions “nor does it stop the state courts from saying that the state constitution requires that a person be allowed to carry (within the state).”

Source:
https://www.ca9.uscourts.gov/judicial_council/what_is_the_ninth_circuit.php

What’s Next?

Whether the Supreme Court is asked to review the Young case, there are other challenges to restrictive laws in at least three other states, including one filed recently by the Second Amendment Foundation (SAF) in cooperation with four other groups, a gun shop and three private citizens.

Joining SAF are the Association of New Jersey Rifle & Pistol Clubs, Inc., the New Jersey Second Amendment Society, the Coalition of New Jersey Firearms Owners, the Firearms Policy Coalition, Bob’s Little Sport Shop, Inc., and the three private citizens.

This is an interesting case in that it declares “New Jersey laws…unconstitutionally restrict the acquisition of firearms.”

In the Garden State, there are no roses for would-be gun owners who often have to wait several months for word on whether their applications to just purchase a firearm will be approved.

According to SAF founder and Executive Vice President Alan Gottlieb, the lawsuit was actually “a long time coming” since the 2015 slaying of Carol Bowne in Berlin Township. She had been waiting for her firearm purchase permit to be approved, and she had even checked with the police department a day before her murder to see about the delay. She was killed in her own driveway.

Source:
https://www.saf.org/saf-partners-challenge-nj-gunlaws-with-federal-lawsuit/

Bad News from Las Vegas

Earlier this week, the Las Vegas Review-Journal reported homicides are up in the city by an alarming 45% from the same period in 2020.

The newspaper quoted Clark County Sheriff Joe Lombardo, who suggested the uptick in murder is due to a combination of conditions including “anxiety, frustration and economic hardship during the pandemic.”

On the plus side, he indicated there was an overall decline in crime last year.

Source:
https://www.reviewjournal.com/crime/homicides/homicides-up-45-in-2021-but-police-stress-progress-on-cases-2314471/

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