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.
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.