BREAKING: In Stunning Decision, 9th Circuit Rules in Favor of Open Carry

The court ruled that Hawaii’s “may-issue” open carry law is unconstitutional. (Photo: Wikimedia Commons)

Pigs are flying, Hell hath frozen, and the U.S. 9th Circuit Court of Appeals just handed down a pro-gun ruling.

In a 2-1 decision, a three-judge panel ruled that the state of Hawaii violated the Second Amendment rights of a man named George Young when they denied him a permit to openly carry a loaded firearm in public.

“We do not take lightly the problem of gun violence, which the State of Hawaii ‘has understandably sought to fight,’” Judge Diarmuid O’Scannlain wrote. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

“We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion,’” O’Scannlain continued. “While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’”

Judge Diarmuid F. O’Scannlain was joined by Judge Sandra S. Ikuta in the majority while Judge Richard R. Clifton dissented.

SEE ALSO: 9th Circuit Court Strikes Major Blow to 2A, Upholds CA’s ‘Good Cause’ Requirement

While the court upheld its previous determination that concealed carry falls outside Second Amendment protections, it found that the individual right to self-defense must guarantee some right to self-defense in public. Because Hawaii’s “may-issue” licensing laws only granted carry permits to those engaged in protecting “life and property,” the state unconstitutionally limited core Second Amendment rights to only a small sub-set of law-abiding citizens.

“Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation,” said Judge O’Scannlain. “A right to ‘keep’ arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to ‘keep’ arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. Understanding ‘bear’ to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between ‘keep’ and ‘bear’ to avoid rendering the latter guarantee as mere surplusage.”

Pro-2A groups have applauded the ruling.

“The Second Amendment Foundation has always said that you have to allow some form of carry for self-defense,” SAF Founder Alan Gottlieb told GunsAmerica. “If you ban concealed carry you must allow open carry or vice a versa. You can’t ban both and have no carry under the Second Amendment.”

“This is an important ruling that confirms what NRA members already know – the right to keep and bear arms shall not be infringed,” said Chris Cox, Executive Director of the NRA-ILA.

The 9th Circuit ordered the case to be sent back down to the lower courts, where Hawaii will be able to request a review by the full court also known as an en banc review.

***Shop for a New Handgun on GunsAmerica***

About the author: Jordan Michaels has been reviewing firearm-related products for over two years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Waco.

{ 36 comments… add one }
  • Steve S. July 27, 2018, 9:13 pm

    Don’t you realize that being PRO-gun only applies to them and THEIR right to keep and bear arms in case a disgruntled citizenry decides it has become fed up with their contradictory ways? Wasn’t it Boxer or Swinestein who was pushing gun control so heavily a few years ago, yet carried a pistol in her purse for ‘personal protection purposes’? I say that is a classic federal case of “do what I say and not as I do”. It appears the members of Congress feel they are above the law in many instances.

  • pete July 27, 2018, 1:35 pm

    Just because something is not illegal does not make it a good idea. Open carry is unsafe, idiotic, etc. This is not the wild west!

    • Tim Allen July 27, 2018, 4:40 pm

      Thanks for the opinion. Here are a few facts. The ninth circuit does not recognize conceal carry as constitutional, and therefore ruled that open carry is constitutional so as not to infringe on his right to self protecion. If you live in Hawaii, are you smart and safe by leaving your gun at home, or stupid and unsafe by open carrying?

      • Michael Blagg July 31, 2018, 10:19 am

        I’m all for open carry and it’s not the wild wild west it’s a right to be protected and discourages thief’s

  • Raymond Brown July 27, 2018, 12:56 pm

    If our elected officials do not uphold the
    very laws that this country was founded on
    than they are traitors and should be handled as such .
    What does the Armed Forced do to traitors,
    It executes them , Sooooo , if it’s good enough for our Armed Forcrs , why and how do our elected officials escape the same punishment. . They should be stripped of all their benefits, pensions and all Governmental freebies, publicly impeached , and either executed or impisoned , no plea bargains, they screwed us and there is no escaping that . They took the oath , broke it and deserve no MERCY.

  • Frank Sakaoka July 27, 2018, 12:55 pm

    Tell them keep your advice

    I’ll keep my guns
    Oooh rah
    Semper fi
    God bless our corps

  • Beachhawk July 27, 2018, 12:37 pm

    I have no doubt that the anti-gun fanatics in Hawaii will demand an en banc review by the Ninth Circuit and if they lose that, they’ll try to take the case to the U.S. Supreme Court, where they are very likely to lose as well. In the meantime, Hawaii will find some judge to stay this ruling until the case is finally adjudicated which could take years.

  • OldOutdoorsGuy July 27, 2018, 11:45 am

    Everyone wants “something” but there are very few who have the patience to wait for a handful of our designated individuals to get it all done. Our “Forefathers”, who wrote these eloquent words with which to govern our national government and our people, didn’t sit down over a cold beer one Saturday evening and punch out the verbiage for the Declaration of Independence and the Bill of Rights and the Constitution in one evening!! Jeeze, read these documents in their entirety once if you want to read some very calculated, well thought out, and focused “rules” with which to govern their “New Nation”. It amazes me that a group of people, who existed back in the proverbial “Stone Age” of our nation, had the forethought and the foresight to put pen to paper and formulate the basis for our present Democratic form of government which has lasted to this day with little or no major changes in personal rights, safety, and entitlement for all.

    Do y’all think there is some other form of government we should be using instead of a tried and true foundation of a government that is operated by those representatives elected by the citizenry of this country? Once in awhile, we all need to take a reality check to find out if WE have done all WE can to influence a fair and honest government membership! Can anyone honestly admit that maybe WE have been lax to one degree or another in our CHOICE, (remember that part, “Freedom of Choice”?) of honest sic., accurately reflecting the wants of their constituency who elected them to act as spokespeople for US, for honest representation of the people?? Who was it who allowed those representatives, through the years, to build their own little “Inner Government” which supplies them with so many additional guarantees which are not available to those who really need some of those “perks”?? These government officials at all levels are elected to represent US. They were put in their positions throughout the government to reflect OUR needs, wants, and OUR opinions on how this land should be operated.

    To say that I don’t know “shit from Shinola” would be a gross understatement, but I do have the unequivocal right to enter a forum like this one, as all of us do, and speak our minds, offer our opinions, or say what we feel should be said. But, at the end of the day, we have accomplished nothing more than another round of “Preaching to the Choir” when we read or write these lines of feeling. The people who NEED to read these lines are sitting in Washington poring over paperwork and looking for more of the “freebies” that may have been overlooked with which they can further line their already PORK FAT personal resume for retirement and living the Golden Years in the style with which they have been accustomed throughout their tenure in the Federal Government!!

    I cannot speak for others who read this but, in my case, I risked my private retirement on hopes that a move out of the “Farm Belt” in the Midwest down to an area already packed with high dollar bank accounts would move me forward with my retail business. It looked good for the 1st 4 years and then Hurricane Ivan hit our little town and wiped out my commercial business and all of my present and future clients who also lost their homes, their jobs, and most of their personal belongings and had only their mortgage and loans and credit cards left to pay off ……. And the people from over the entire USofA watched the 6 PM news and said, “Man, that’s awful” and the people who were recovering from a recent catastrophe said, “Man, I can sympathize with your problems”, and the government officials said, “…….. Well, we all found out that, in their case, talk was cheap ……. And THEY all went on poring over the papers looking for more pork to add to their coffers ….. and the band played on ….. and on …

    • KBSacto July 27, 2018, 1:27 pm

      In most elections, it is a common statistic that about 40% of those who registered to vote show up at the polls. If we assume that 50% of those who can register actually do indeed register to vote, then the math says only 20 people out of 100 are voting. This means that only 1/5th of the population is deciding who governs us. This I believe is one of the greatest malady’s in our democratic republic; the liberals know this well and take advantage of it.

      We who represent more conservative beliefs, including our 2A rights, need only increase voter participation to move the political dial. Imagine if the numbers became 90% and 90% just within the conservative population.

  • Konstantinos July 27, 2018, 11:41 am

    Yes, this is great news for Hawaii and the 2nd Am. Next on the list for gun rights should be the separate sovereign nation of the City of New York. It’s long overdue, no thanks to the gutless cowards in Albany.

  • Mahatma Muhjesbude July 27, 2018, 10:45 am

    Great news, brings back hope that the 2nd/A is still not dead yet, but it’s still not time to relax. As long as we aren’t arresting and prosecuting anyone including traitorous elected legislators for violating 18 USCC 241-242. State and local officials, AND, of course Congress, will still completely ignore the “…SHALL NOT be Infringed” part of the second Amendment and continue their statutorily illegal proliferations of Unconstitutional Fiat Laws!

    While “We The People” still technically maintain the power to control the government, we have to use it or lose it. NOW!

    If CB Maxine waters can get away with calling for violence against citizens, we should have the right to demand and force prosecution of violators of the Constitution according to the Law of The Land.

    Some of us are OathKeepers and have powers of arrest. And we’ll be glad to perform the duties if we can find one honest not corrupted yet States attorney or even County/District attorney to issue the arrest warrant? Because it’s a fucking on the books CRIME to violate a person’s Constitutional rights by depriving or prohibiting them! So ALL gun laws are illegal. This has already been challenged and case law agrees!

    So how do they keep getting away with it?

    We, the Sheeple let them.

    And so does the NRA!

    The midterm elections are only 4 months away. It’s ALL over then…

    …but one cuffed and shackled traitor like that Florida legislator who wants a universal background registration/confiscation law now who is being perp-walked in front of cameras should start to really turn the tide for Firearm Freedom?

    NRA! Did yah hear that?

    • Steve S. July 27, 2018, 8:48 pm

      I love your input here. I quite agree. Now the question, for me, is can we apply what you propose to Mad Maxine Waters? Since she and others in power want to make examples of We the People, shouldn’t We the People be able to make an example of her and her cronies? She needs to be stripped of any and all power, be made to work a minimum wage job and go back to living in the tenement housing projects from which she seemingly arose, judging by her oratory. She certainly doesn’t represent ME or MY views; all she seems really able to do is play the tired, old racism card that she appears to hold.

  • Irish July 27, 2018, 10:24 am

    I lived in Hawaii until the summer of 1997.It is/was a felony to have a single bullet in your pocket. Is the open carry gun to be unloaded?It is a felony to fire a bullet that leaves your property. Does this make it a felony to fire a bullet when not on your property?All firearms must be transported in the trunk unloaded, locked in a case and the Ammo most be locked in a separate case in the trunk. Handguns must be transported from your home directly to or from a shooting range. It is a felony to stop for gas, the bank, or any other stop on your way to and from your home to the range.Long guns can be transported for hunting and can be loaned to a friend.It’s a felony to loan a handgun.All guns must be registered and the registration papers must be on your person when you take the gun from your home.Hawaii is a “MUST FLEE” state where you must flee your home if there is a home invasion and you must not fight back unless trapped with no means of escape.The Governor of Hawaii has recently issued an executive order which turns the names of every one of the individuals who have a registered gun is turned over to the FBI.It’s a felony to have any unregistered gun even if you have 20 registered guns.Is there ANY benefit to open carry with all of the listed restrictions???You still can’t fire in self defense unless you are trapped in a bathroom and don’t leave your registration at home.

    • Infidel762X51 July 27, 2018, 11:43 am

      Sounds just like the Peoples Republic Of Natzi Jersey.

    • Freedomlover July 28, 2018, 5:43 pm

      Hawaii is not a free state. It is in the same category as the following states that trample the Second Amendment rights of the citizens: California, Colorado, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, New York and Vermont.

      Vermont is semi tolerable but do not own a rifle with magazines that have more than ten rounds in them. That is illegal there now.

  • Irish July 27, 2018, 10:20 am

    I lived in Hawaii until the summer of 1997.

    It is/was a felony to have a single bullet in your pocket. Is the open carry gun to be unloaded?

    It is a felony to fire a bullet that leaves your property. Does this make it a felony to fire a bullet when not on your property?

    All firearms must be transported in the trunk unloaded, locked in a case and the Ammo most be locked in a separate case in the trunk. Handguns must be transported from your home directly to or from a shooting range. It is a felony to stop for gas, the bank, or any other stop on your way to and from your home to the range.

    Long guns can be transported for hunting and can be loaned to a friend.

    It’s a felony to loan a handgun.

    All guns must be registered and the registration papers must be on your person when you take the gun from your home.

    Hawaii is a “MUST FLEE” state where you must flee your home if there is a home invasion and you must not fight back unless trapped with no means of escape.

    The Governor of Hawaii has recently issued an executive order which turns the names of every one of the individuals who have a registered gun is turned over to the FBI.

    It’s a felony to have any unregistered gun even if you have 20 registered guns.

    Is there ANY benefit to open carry with all of the listed restrictions???

    You still can’t fire in self defense unless you are trapped in a bathroom and don’t leave your registration at home.

  • Paul July 27, 2018, 9:41 am

    I’m a ccw holder, and very much pro 2A. The notion however, that gang members, and the likes of miscreants of many varieties could be lawfully walking around displaying firearms doesn’t sit well with me. I know that many of these dirtbags already conceal carry without license; which is bad enough. But I’m concerned for the outcomes in a society where guns are strapped to large numbers of people and nobody knows who is actually a good guy or a bad guy. Could get to be very sticky.

    • Bob July 27, 2018, 10:21 am

      Paul,

      Most gang members would not be legally open carry, because most gang members have felonies which would make it another felony. In my 18 years of law enforcement every gang member I’ve come across has concealed carry illegally ending him back jail.

    • Mahatma Muhjesbude July 27, 2018, 10:59 am

      Paul, those are insignificant concerns in an imperfect world. There are potential risks in various levels of human behavior which always fluctuate in intensity for different reasons or causations. There is absolutely No way to eliminate this concern completely. That’s why gun control does not, and will never work. In terms of eliminating violent crimes.

      In a Free Libertarian Egalitarian Nation, you still have laws that punish and correct you for bad behavior. So that should be enough of a deterrent for reasonable law-abiding people. Because everything is balanced for optimal harmony, sometimes humanity is out of balanced but usually returns to ‘order’ if everything is working right.

      In other words, the ‘good’ of having American “Uninfringed” Freedom ALWAYS far outweighs any risk of potential ‘disorder’ or perceived deleterious human behavior as a result certain social changes, if you have to make a weighed evaluation comparison.

      That’s why old T.J. or one of the ‘Boy’s’ said something like “those who would give up part of their liberty for increased government security, deserve neither!”

  • Russ July 27, 2018, 9:23 am

    Good news for Hawaii and the 2nd A in general;however, My takeaway is that you still need a permit for open carry? The 2nd A should be the only permit needed!

  • Jay July 27, 2018, 9:01 am

    Prior to the 1920’s there was no Federal gun legislation! History shows us living in an open carry world, traveling and living among each other knowing each person can and will defend themselves and property. Like fences make for good neighbors guns make for good citizenry. Today there are countless laws restricting a Freedom that Clearly Says “Shall Not Be Infringed” So what happened? Apathy pure unadulterated Apathy! Look what it has done to a basic human right!

  • John July 27, 2018, 8:50 am

    I think this is great but I am curious to know what the dissenting Judge Clifton said about this decision and why?

  • Luis Soto July 27, 2018, 8:22 am

    What if a resident bring back a ccw from different state? Like Texas?

  • MJB July 27, 2018, 8:20 am

    Probably because Trump threatened to abolish the 9th circuit.

  • Infidel762X51 July 27, 2018, 8:09 am

    Don’t worry, as soon as the entire 9th circus re-hears the case with the new gun grabbing justice Trump appointed (in violation of his pledge to only appoint judges who can read the Constitution) the decision will be reversed abd the 9th circus will be back to it’s normal leftist ways.

  • Dr Motown July 27, 2018, 7:36 am

    If you have a right to bear arms outside the household, it shouldn’t matter how you “bear” them….OWB, IWB, pocket carry, etc. This ruling should open up the WHOLE issue of right to carry, regardless of whether it’s “concealed” or “open”

  • Chuck July 27, 2018, 7:21 am

    “Do you get a permit to exercise any of your other God-given unalienable RIGHTS?”
    Hunting, fishing, driving, building, owning a dog….shall I go on?

    • Scott July 27, 2018, 2:48 pm

      “Do you get a permit to exercise any of your other God-given unalienable RIGHTS?”
      Hunting, fishing, driving, building, owning a dog….shall I go on?

      ______________

      Yes, please go on, you sound like a perfect slave, not only aiding and abetting your Master, but seeking to bring others onto your plantation with you to serve your Master.

      They have conditioned you well.

      You don’t even question it anymore — if you ever did.

      The greatest prison ever created has no bars or locked doors, so the prisoners never even think to try to escape.

  • Joe July 27, 2018, 5:54 am

    The 9th ruled in this one because they don’t want it to go to SCOTUS and make pro guns ruling for the country. As this, it limits it to a smaller state

  • Scott July 27, 2018, 5:30 am

    “If you ban concealed carry you must allow open carry or vice a versa. You can’t ban both and have no carry under the Second Amendment.”

    ________________

    How about this instead: NOBODY has the lawful Authority to BAN your RIGHT to KEEP and BEAR arms.

    Period.

    That is the beginning, the middle and the end of it.

    There’s no ‘bargaining’, no ‘pleading’, no ‘begging’, no ‘horsetrading’, none of that.

    The moment you start down that path, you have lost everything, because then it’s no longer a matter of the government infringing on your freedom — it’s just a matter of how much you will allow.

    And the government plays the long game. They might only take an inch from you. They’ll take a yard from your children. They’ll take a mile from your grandchildren, and your great grandchildren will be in chains.

    All because you decided to ‘bargain’ with the devil.

  • Scott July 27, 2018, 5:24 am

    “The Second Amendment Foundation has always said that you have to allow some form of carry for self-defense,” SAF Founder Alan Gottlieb told GunsAmerica.

    _________________

    Alan talks like a slave.

    ‘You have to allow’?

    Who, his MASTER must “allow” him something?

    If his MASTER forbids this, then his MASTER must allow that?

    When did Alan Gottleib become a slave, and when did his government become a MASTER?

    He even has shackled mental outlook and speech habits of a slave. He has already conceded that his MASTER can tell him what to do, he only begs that his MASTER must “allow” him to do one thing if his MASTER forbids him to do the other.

    It’s sickening.

    • Dr Motown July 27, 2018, 7:32 am

      Oh, stop the stupid hyperbole! Gottlieb is speaking to a non-gun crowd who’s used to being sheeple. This is an incremental fight against laws that never should’ve been passed in the first place, but, until the system is restored to its original intent, we need to stand united here..

      • Scott July 27, 2018, 5:44 pm

        “Oh, stop the stupid hyperbole!”

        ________________

        It’s not hyperbole, it only sounds like it (to you) because you’re so accustomed to what the sleepwalkers call ‘normal’.

        .

        “Gottlieb is speaking to a non-gun crowd who’s used to being sheeple.”

        ______________

        Is the idea to make sure they remain sheeple? If so, that’s the way to do it. Don’t disturb their slumber, don’t budge them out of the comfort zone, just keep feeding them warm oats and a bottle of milk with a baby nipple on it… mmm…. good….

        .

        “This is an incremental fight against laws that never should’ve been passed in the first place,”

        __________________

        “Incremental” usually works out as an excuse to never get to the destination.

        A RIGHT is a RIGHT.

        There’s nothing ‘incremental’ about any OTHER “right”, so what is the lawful justification for this one being constantly infringed?

        There has to be a lawful justification for violating a plainly spelled out God-given guaranteed UNALIENABLE RIGHT, or else the judge(s) is LAWLESS.

        .

        “but, until the system is restored to its original intent, we need to stand united here..”

        _______________

        We ARE united.

        I’m just pushing harder than you are.

  • Scott July 27, 2018, 5:15 am

    Judge Diarmuid O’Scannlain wrote. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

    __________

    And furthermore, the Constitution says NOTHING AT ALL about obtaining a PERMIT to do it.

    Does the Judge not see the problem with the logic (or lack thereof) here?

    The MAIN purpose of the Constitution was to RESTRICT the GOVERNMENT from infringing on OUR RIGHTS.

    NOT for the government to restrict US.

    Think about it. If you just won independence from King George, what’s the first thing you do? Set up a tyrannical government just like the one you fought to escape from? Or do you set up a system that guarantees the RIGHTS of the people from being infringed by a tyrannical government?

    It is a MAXIM that the “created” (the government) CANNOT BE greater than the “Creator” (We the People).

    We the People created this country.

    We created the Articles of Confederation, the Declaration of Independence and the Constitution. The Constitution authorized the creation of the government, including the judiciary.

    That means We the People are several levels ABOVE the government — and our civil miscreants — in power and authority.

    A license, a permit, is a granting of ‘permission’ from OUR civil servants — people who serve at OUR pleasure — to exercise our God-given, UNALIENABLE Constitutional RIGHT.

    Does that make sense to anybody?

    It makes no sense.

    Do you get a permit to exercise any of your other God-given unalienable RIGHTS?

    No?

    Then why on earth should you need a ‘permit’ to exercise the ONE right — to SELF-DEFENSE — which can actually SAVE your LIFE?!?

    Do we not have a RIGHT to LIFE — and to defend our life — in addition to right to liberty and the pursuit of happiness?

    What is a ‘License’?

    A ‘license’ is permission from a government authority to do something which would otherwise be unlawful.

    But it’s NOT “unlawful” to Keep and Bear ARMS.

    Not only is it NOT “unlawful”, it so terribly LAWFUL that the Bill of Rights SPELLS IT OUT right there in the Constitution!

    Could the concept of getting a ‘permit’ or a ‘license’ to exercise a RIGHT be any more contradictory?

  • K July 27, 2018, 5:02 am

    Two quotes from this 9th Circuit case, found on pages 12-14:

    1) Heller and McDonald set the goalposts for our inquiry, which requires determining the scope of the Second Amendment with respect to public carry. We must discern the scope of the Amendment not as it appears to us now, but “with the scope [it was] understood to have when the people adopted [it].”Heller, 554 U.S. at 634–35. Our lodestars are “text and history,” id.at 595, because they bear most strongly on what the right was understood to mean, at the time of enactment, to the public. Because “words and phrases were used in their normal and ordinary as distinguished from technical meaning,”

    2) To “bear,” the Court explained, means to “wear” or to “carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defense action in a case of conflict with another person.” (quoting the Supreme Court from 2008) Heller, 554 U.S. at 584

    Case found at:
    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/12-17808.pdf

    Taking these quotes together, pray tell O Great Justices, how can “carry……..IN the clothing or IN a pocket” not be describing a “concealed weapon”, for the purposes of defining the American inalienable individual “Right to keep and bear arms”, that “shall not be infringed”?

  • Mark July 25, 2018, 1:15 pm

    Now we just need our “pro-gun” Congress and President to get off their asses and pass some pro-gun legislation.

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