Hawaii and California's Huge Second Amendment Victory (John Lott)

[Fishrrman]

https://townhall.com/columnists/johnrlottjr/2018/07/27/9th-circuit-decision-n2504266

Hawaii and California's Huge Second Amendment Victory
By John R. Lott, Jr.
July 27, 2018



Tuesday’s decision by the 9th Circuit Court of Appeals means that people in the western U.S. will now be able to openly carry a handgun in public. The decision only applies to districts under the 9th Circuit’s jurisdiction, but it will likely soon affect the rest of the country. It is a huge ruling that strikes down existing state prohibitions in Hawaii and California.

The case involved George Young, who wanted to publicly carry a firearm in the State of Hawaii for personal self-defense. Young applied twice for a handgun permit to carry either openly or concealed, but they denied his application each time. Hawaii’s laws require demonstration of “reason to fear injury to the applicant’s person or property.” Similar rules apply to open carry. But, in fact, Hawaii refuses to acknowledge that anyone has good reason to fear for their safety and is not issuing a single permit.

The Second Amendment was clear when it enshrined the “right of the people to keep and bear Arms.” The Supreme Court has stated: “‘Keep arms’ was simply a common way of referring to possessing arms. . . . At the time of the founding, as now, to ‘bear’ meant to ‘carry.’” As with a previous decision by the 7th and DC Circuits, people have the right to carry. The government can’t stop otherwise law-abiding Americans from any ability to protect themselves outside their home.

Even states that never (Hawaii) or virtually never (California) issue concealed handgun permits will now have to allow people to openly carry handguns in a holster.

Gun control advocates could appeal the three 9th Circuit judges’ decision to the entire 9th Circuit (an en banc decision). The court as a whole is very liberal, and may very well reverse Tuesday’s decision. But such a ruling would definitely be appealed to the U.S. Supreme Court, which would presumably overturn it. This would make open carry legal nationwide.

More at URL above...

[Fishrrman]

This was predicted by ME a week ago, see here:
http://www.gopbriefingroom.com/index.php/topic,325283.msg1748565.html#msg1748565

Also, I predicted thn that anti-gun organizations will NOT appeal the 9th Circuit's decision -- because to do so will eventually result in nationwide "open carry"

They may just "let this drop".
Otherwise states like New York, New Jersey, Connecticut and Massachusetts will have no power to stop it.

[Elderberry]

https://www.nraila.org/articles/20180727/ninth-circuit-stunner-second-amendment-protects-public-open-carry

What this decision means for the other jurisdictions in the Ninth Circuit – which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, Guam, and the Northern Marianas Islands – remains to be seen. The court hinted, but did not decide, that a concealed carry licensing regime might be sufficient to protect the right to bear arms by offering an “alternative channel” for lawful public carry. It also made clear, however, that access to the right cannot be limited to “a small and insulated subset” but must include, as a rule, “the typical, law-abiding citizen.” It additionally went on to clarify that “nothing in our opinion … would prevent the State from regulating the right to bear arms,” provided the regulations did not render the right a mere “illusory promise.”

That obviously leaves many questions left unanswered. The court’s decision therefore should not embolden residents in restrictive jurisdictions to immediately ignore local laws and expect to open carry with impunity. How far states and localities can go in regulating the right will undoubtedly take additional litigation to determine.   

Needless to say, moreover, the split panel decision might not represent the final word in the case. It could still be reversed by the en banc court, as was a previous pro-carry panel decision written by Judge O’Scannlain. And, of course, Hawaii officials could also petition to have the case heard by the U.S. Supreme Court.

Nevertheless, the anti-gun wing of the Ninth Circuit has few maneuvers left to continue to deny the constitutional right to bear firearms in public. It would either have to be the first circuit to declare there was no such right at all or decide that a right the Constitution ascribes to “the people” applies only to a hand-selected few. So far, even the dominant liberal contingent of the Ninth Circuit has been unable to muster a majority opinion for either proposition.

Stay tuned. We will monitor developments carefully and report on them as they occur.

[Elderberry]

Gunwatch Monday, July 30, 2018

http://gunwatch.blogspot.com/2018/07/ninth-circuit-three-judge-panel-upholds.html

In Young v. State of Hawaii, the carry permit is for both open and concealed carry. O'Scannlain makes an obvious point. The Ninth Circuit, in the en banc ruling on Peruta, said concealed carry outside the home is not protected by the Second Amendment. Judge O'Scannlain writes that both concealed and open carry may not be forbidden, because forbidding both is a clear infringement of Second Amendment rights.
Open carry outside the home is more clearly protected than concealed carry, because of precedents in state law that go back to the 1830's.  Concealed carry does not have the level of protection that open carry does, simply because bans on concealed carry have been tolerated for 190 years in some states.  In 1833, the Supreme Court had ruled the Bill of rights did not apply to state governments.

Slowly, starting in the 1920's, the Supreme Court ruled that some Amendments in the Bill of Rights gave protection from state governments. In 2011, the Supreme Court ruled the Second Amendment protected peoples rights against infringement by state governments.

The dissent, written by Judge Clifton, a George W. Bush appointee, is a familiar restatement of what became the majority opinion in Peruta in the en banc ruling.

It attempts to make the case that open carry is not protected by the Second Amendment. Clifton makes three essential arguments.

First, he relies on scattered laws in a few states from the 19th century, that allowed people to ask a judge to require a surety (similar to a bond) of a person who they deemed to be acting irresponsibly while carrying weapons.

Second, is the fact that some restrictions on open carry have been tolerated in a couple of states for nearly a century.

Third, that governments believe restrictions on the carrying of arms serve a good purpose.

None of the three points is much of an argument. They amount to an attempt to find ways to invalidate the Second Amendment because the judge does not want to enforce Second Amendment protections.

Thus we come to the core difference in the opinions.

If you desire to interpret and enforce the Constitution as written, the Second Amendment protects an individual right to self defense.  It protects a right to keep and to carry weapons that would be useful, not only for self defense, but to form a viable militia. It protects a right to carry weapons outside of the home.

If you believe the Constitution is a silly impediment to government power, that the Constitution is an obsolete relic of a bygone era, something that has to be re-interpreted for today's times, a "living document, then you will always find a few laws somewhere to be able to create a sophistry that neuters the Second Amendment.

One side values truth, the rule of law, and the necessity of limits on government power.

The other side finds that truth is situational and relative, the rule of law is what a judge or government says it is at the time it is said, and limits on government power are an obscene restriction on the ability of the elite to rule as they should.

The question going forward is whether there will be an en banc ruling on Young v. State of Hawaii, what the en banc ruling will find, and if Young v. State of Hawaii will be appealed to the Supreme Court.