Ninth Circuit Finds Right to Carry Arms in Public, Principally Based on Originalist AnalysisMichael Ramsey

In Young v. Hawaii, decided yesterday, a panel of the Ninth Circuit (O'Scannlain, joined by Ikuta; Clifton dissenting) found a constitutional right to carry firearms in public.  As one would anticipate from Judge O'Scannlain, the analysis is heavily textualist and originalist.  Two highlights:

The court relies in part on the existence of textually separate rights to "keep" and to "bear" arms.

Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. 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. Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms “implies a corresponding right to acquire and maintain proficiency in their use”). The addition of a separate right to “bear” arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. See Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880) (“[T]o bear arms implies something more than mere keeping.”). 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. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“[I]t cannot be presumed that any clause in the constitution is intended to be without effect . . . .”).

Also, the court uses founding-era writing to support its conclusion:

Several legal treatises that were in wide circulation throughout the founding era support our textual understanding of “bear arms.” In an early American edition of Blackstone’s Commentaries on the Laws of England—indeed, the “most important” edition, as Heller points out, see 554 U.S. at 594—St. George Tucker, a law professor at the College of William & Mary and former influential Antifederalist, insisted that the right to armed self-defense is the “first law of nature” and that “the right of the people to keep and bear arms” is the “true palladium of liberty.” 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia app. n.D. at 300 (Phil., William Young Birch & Abraham Small 1803); see also McDonald, 561 U.S. at 769 (treating Tucker’s notes on Blackstone as heavily instructive in interpreting the Second Amendment); Heller, 554 U.S. at 606 (same). And in advocating for the prerogative of the Judiciary to strike down unconstitutional statutes, Tucker wrote: “If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, . . . would be able to pronounce decidedly upon the constitutionality of these means.” Tucker, supra, at 289; see also Michael P. O’Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense, 61 Am. U. L. Rev. 585, 637–38 (2012). Indeed, as Tucker explained, “[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Tucker, supra, vol. 5, app., n.B, at 19.

Blackstone himself espoused a similarly sacred view on the right to bear arms for Englishmen, which was most notably codified in the 1689 English Declaration of Rights as the right of Protestants to “have Arms for their Defense suitable to their Conditions and as allowed by Law.” Bill of Rights 1689, 1 W. & M., c. 2 (Eng.); see also Alden v. Maine, 527 U.S. 706, 715 (1999) (noting that Blackstone’s works “constituted the preeminent authority on English law for the founding generation”). As Blackstone explained, the 1689 Declaration enshrined “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defence.” 1 William Blackstone, Commentaries *144.8 It followed from Blackstone’s premise that such a right, the predecessor to our Second Amendment, “was by the time of the founding understood to be an individual right protecting against both public and private violence.” Heller, 554 U.S. at 594 (emphasis added); see also 2 William Blackstone, Commentaries on the Laws of England 441 (Edward Christian ed., 1795) (“[E]veryone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.”).

And: discussion and rejection of the views of originalist pro-gun control scholars Saul Cornell and Patrick Charles.

More from Eugene Volokh here (linking to commentary by Josh Blackman).  A lot more from David Kopel here.

Congratulations to San Diego-based USD law alumnus (and my former student) Alan Beck, counsel for the plaintiff-appellant.