« If the Supreme Court Reviews Young v. Hawaii, It Might Well Make Bad Law Even Worse
David Weisberg
| Main | Aaron Tang on Finding a Judicial Middle Ground
Michael Ramsey »

04/03/2021

David Kopel & George Mocsary: Words Missing from the Ninth Circuit's Young v. State of Hawaii
Michael Ramsey

David B. Kopel (Independence Institute; Denver University - Sturm College of Law; Cato Institute) and George A. Mocsary (University of Wyoming College of Law) have posted Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii (21 pages) on SSRN.  Here is the abstract:

The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2016 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Professor Kopel has more at Volokh Conspiracy, including excerpts from the article.  From part of the evaluation of the opinion:

Young's lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.

The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.

According to the Ninth Circuit, the 1615 King's Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public "notwithstanding he doth not break the peace." Justice Croke's seriatem opinion, however, reads

[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King's people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).

Justice Houghton's opinion adds that the sheriff may arrest someone, "upon suspition."

By omitting "in his presence," Young turns Chune's actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).