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03/26/2021

Ninth Circuit Second Amendment Open Carry Decision in Young v. Hawaii
Michael Ramsey

In Wednesday's decision in Young v. Hawaii, an en banc panel of the Ninth Circuit held (7-4) that the Second Amendment doesn't protect a right to openly carry arms in public.  The court earlier had held that there is no right to carry concealed arms in public.  (More from Jacob Sullum at Reason here.)

Both the majority and dissent are strongly originalist in orientation.  Judge Bybee's majority summarizes: 

After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.

And from further on:

We begin with a review of the historical record, starting with the English tradition, and then review the Colonial era and the post-Second Amendment era. Our focus on the American sources will be on state laws and cases. As the Court explained in Heller, “[f]or most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.” 554 U.S. at 625. As we review these records, we are well aware that we are jurists and not historians. That creates the risk that we are engaged in Professor Kelly’s “law office history.” That is not only a risk we must assume; after Heller, it is our duty to confront such history. In an effort to get the history right, we have also honored the history of common law advocacy: We have looked to the parties to shape the arguments and call to the court’s attention the appropriate precedents. We have also relied on the parties and amici to direct our focus to the principal historical sources and any important secondary sources they would like us to consider. We have tried to be as complete as possible in recounting this history, but this is a legal opinion, not a dissertation, so we are likely to fall short in some way.

The opinion then follows up with extensive historical discussion beginning with English practice dating to 1299.  (Eight pages later it's only up to 1377; 22 pages later it gets to the Constitution [which it unfortunately says "was ratified in 1789" rather than 1788]).  Thereafter it focuses mainly on state statutes and cases in the post-ratification period.  In all, the historical discussion covers 52 pages.  In conclusion (on the main point):

Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self defense. See Kachalsky, 701 F.3d at 96 (“[O]ur tradition . . . clearly indicates a substantial role for state regulation of the carrying of firearms in public.”). To be sure, any one sentence declaration that we might make will be subject to qualifications and exceptions (which we will address in the next section), but in the main, we have long distinguished between an individual’s right of defense of his household and his business and his right to carry a weapon in public for his own defense, absent exceptional circumstances. “Like . . . the right secured by the Second Amendment,” the government’s right to regulate the carriage of weapons in public places “is not unlimited.” Heller, 554 U.S. at 626. But we are persuaded that government regulations on open carry are “[l]aws restricting conduct that can be traced back to the founding era and are historically understood to fall outside of the Second Amendment’s scope,” and thus “may be upheld without further analysis.” Silvester, 843 F.3d at 821. 

The contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly. We need go no further than this, because the Hawai‘i firearms licensing scheme Young challenges only applies to “a pistol or revolver and ammunition therefor.” HRS § 134-9(a). This power to regulate is fully consonant with the Second Amendment right recognized in Heller. Heller found that the pre-existing right to keep and bear arms is not a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at 626. “‘[T]he central component’ of the Second Amendment” is the “basic right” of self-defense, whose exercise is “‘most acute’ in the home.” McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 599, 628). The heart of the Second Amendment is “defense of hearth and
home.” Heller, 554 U.S. at 635. 

Judge O'Scannlain's dissent (joined by Judges Callahan, Ikuta, and R. Nelson) begins:

The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II (emphasis added). Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self defense in any other place.

This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, we now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.

In so holding, the majority reduces the right to “bear Arms” to a mere inkblot. The majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.

In contrast to the majority, the dissent focuses heavily on the Constitution's text and its eighteenth-century meaning, and roughly contemporaneous commentaries.

Methodologically, I'm inclined to prefer the dissent (unsurprisingly, per my discussion of originalist/textualist methodology here).  it seems right to start with the text, consider the immediate linguistic and political context, and only then expand the inquiry into times that are more historically remote.  Beginning in 1299 tends to privilege the outlook of the thirteenth and fourteenth centuries, which seems like the wrong way to do it.  Perhaps Judge Bybee was so concerned about being accused of law office history (as his opening discussion suggests) that he overdid it in the opposite direction.  In any event, it seems to me that the English practice of the eighteenth century is substantially more relevant.

On to the Supreme Court?

(Via USD law grad Alan Beck, who argued the case for the claimant.)

UPDATE/SOMEWHAT RELATED: In Jones v. Becerra, a pending case challenging a California law restricting sales to minors, the Ninth Circuit entered this order:

Appellants and Appellees are ordered to file supplemental briefing addressing the original public meaning of the Second Amendment. In the briefs, the parties are instructed to specifically address the following:

1. What is the original public meaning of the Second Amendment phrases: “A well regulated Militia”; “the right of the people”; and “shall not be infringed”?
2. How does the tool of corpus linguistics help inform the determination of the original public meaning of those Second Amendment phrases? (See Corpus of Historical American English, BYU, https://www.englishcorpora.org/coha/; Corpus of Contemporary American English, BYU, https://www.english-corpora.org/coca/)
3. How do the data yielded from corpus linguistics assist in the interpretation of the constitutionality of age-based restrictions under the Second Amendment

(Thanks to Neal Goldfarb for the pointer.)