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Ninth Circuit: Second Amendment Protects Right to Open Carry in Public

Second AmendmentOn July 24, 2018 a three judge panel of the normally liberal United States Ninth Circuit Appeals affirmed that the Second Amendment protects a personal right to openly carry a firearm in public.

The County of Hawaii’s Chief of Police had twice denied George K. Young’s application to carry a handgun because he failed to satisfy Hawaii’s licensing requirements, as set forth in Hawaii’s Revised Statutes. Mr. Young took the Police Chief to court.

Hawaiian Law

The State of Hawaii has a group of “Place[s] to Keep” firearms statutes, which generally require that gun owners keep their firearms at their “place of business, residence, or sojourn” with limited exceptions. The exceptions allow citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances.

Hawaii’s law limits 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 County of Hawaii had never issued a permit to carry to any person other than a licensed security guard. In the last eighteen years, in the entire state, only four permits had been issued to anyone other than a security guard.

As a practical matter, Hawaii banned citizens from possessing a weapon outside their home or business.

Circuit Judge O’ScannlainThe Judges’ Opinion Is Worth Reading

The majority opinion written by Judge Diarmuid O’Scannlain faithfully reviews the history of the Second Amendment and explains the original public meaning of the Second Amendment. The result was a ruling that the Hawaiian law is unconstitutional.

While this is likely not the final word on the subject, this case may still be heard by the complete Ninth Circuit, and perhaps the Supreme Court, this case is an exceptional example of how to decide cases based upon constitutional rights.

Tracing 700 Years of Self-Defense

For anyone interested in learning what the Second Amendment meant to those who wrote and adopted it, this opinion is valuable.[1] The judges traced nearly 700 years of history in determining the meaning of the “right to bear arms”. It is an outstanding analysis that addresses the subject from 14th Century England to 21st Century America.

Salient Quotes From the Opinion

“…the important founding-era treatises, the probative nineteenth century case law, and the post-civil war legislative scene each reveal a single American voice. The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense.”

 

“By the time of the founding, the right to have arms had become fundamental for English subjects.”

 

“In sum, we reject a cramped reading of the Second Amendment that renders to “keep” and to “bear” unequal guarantees. Heller and McDonald describe the core purpose of the Second Amendment as self-defense, see Heller, 554 U.S. at 599; McDonald, 561 U.S. at 787, and “bear” effectuates such core purpose of self-defense in public. We are persuaded, therefore, that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment.”

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[1] People interested in truly understanding the origins of the Second Amendment should take an hour and read this opinion. It takes only about an hour, and has more history than legalese and educates on why the Second Amendment means what it says. Download the opinion here.

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