So, you know how I was so excited to finally be able to talk about Judge Kavanaugh? Well, guess what? It has to wait yet another week.
The 9th issued another ruling… and like in Duncan v. Becerra, which I wrote about last week… it was a good thing. (Rarely do I get to write that sentence.)
This time the ruling was in Young v. Hawaii, and this was a biggie.
As in the original three-judge ruling in Peruta v. San Diego, this three-judge panel had its opinion drafted by Justice O’Scannlain.
Justice O’Scannlain is my new spirt animal.
The case at bar revolves around Hawaii’s issuance of both open carry and concealed carry permits. The second part, concealed carry, was not directly tackled, but is incorporated through a very important footnote, and the general ban of concealed carry in the State of Hawaii is a predicate requirement for the ruling to have the logical consistency it does.
Like California, Hawaii is not favorable to guns. To bear arms outside of your home in Hawaii (“bear” being an important phrase here), you need to have either an open carry permit, or a concealed carry permit. Hawaii has issued concealed carry permits for 19 years, and only a handful of open carry permits, exclusively to security guards.
Young, the plaintiff, applied for both permits twice and was denied.
He sued under a 1983 action in federal court, arguing that his inability to openly carry outside of his home was a fundamental deprivation of his Second Amendment rights. The court did acknowledge that pursuant to Peruta II (the en banc review case), a CCW is a legitimate time, place, and manner restriction and could be upheld, as long as the plaintiff still has the core Second Amendment right available to him… in this case, he can still open carry.
The big question before the court was, “Does the Second Amendment exist outside a person’s home?” The answer to that question, in Justice O’Scannlain’s excellent opinion, is unambiguously yes.
If you want to read the opinion in its entirety you can find it here: https://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/12-17808.pdf
What does the opinion actually say?
Well, grab your own cup of coffee and read on…. this gets exciting!
(If you have arrived here from our newsletter, continue reading here…)
Justice O’Scannlain first decided to tackle the question of “Does the Second Amendment even apply outside someone’s home?” Heller v. DC (the seminal case that recognized the Second as a fundamental right) and McDonnel v. Chicago (that incorporated the Second to the States via the Fourteenth Amendment) never explicitly recognized the Second Amendment as applying to activity that occurs outside a person’s home. (Remember Heller was a ban on possession of a firearm by residents of the District of Columbia. The court recognized the core purpose of the amendment was to protect “hearth and home.”)
O’Scannlain points out that the phrase to “keep and bear arms” is a two-part proposition. Clearly, as Heller stated, the law-abiding citizen enjoys a right to “keep” arms, but equally clear is the proposition that “bear” does not mean incidental movement from room to room in one’s house. “Bear” clearly means to take a firearm outside one’s home. More to the point, since the core purpose of the Second Amendment is self-defense, it stands to reason that self-defense is just as important outside the home as inside.
He then goes on a lengthy historical analysis of the Second Amendment’s 19th century cases. These are important since they are relatively close in time to the actual ratification of the Amendment. He points out that the vast majority of the cases (with the exception of the unfortunately named State v. Buzzard) held that laws that forbade the open carrying of weapons were in conflict with the Second Amendment.
He then takes on the State’s odd argument that the Second Amendment should be interpreted through the lens of the 1328 Statute of Northampton. (To be fair, the State of Hawaii was using this line of argument pursuant to Chief Justice Thomas’s en banc decision in Peruta II. Remember, O’Scannlain wrote the original Peruta decision saying that the court takes judicial notice that, “A general interest in self defense is sufficient good cause for a CCW.” His opinion then, as is this one, was heavily based in historical analysis. Chief Justice Thomas overruled him, and wrote his own “historical analysis,” essentially saying the issuance of a CCW is not a core right envisioned under the Second Amendment. He left open the possibility that open carry is a core right, though even doubted that, opining that the Second Amendment is of limited scope and probably does not exist outside the home…. especially since there is that ole “Statute of Northampton” thing.
O’Scannlain uses this opinion to strike back at Thomas.
He does this by eviscerating the State of Hawaii’s (Chief Justice Thomas’s) analysis of Northampton.
I won’t go into detail on this… but, if you read the decision and keep Thomas in mind, you will get a chuckle.
Thus, identifying the Second as a right that exists past the boundaries of one’s home, and its principal purpose being self-defense, he then goes on to analyze Hawaii’s statutes that prohibit carrying a firearm outside the home without a permit.
In Heller, the court said when a statute implicates a core principle of the Second Amendment, there needs to be a balancing test employed to see if the suspect statute is unconstitutional. In Heller, there was no need to engage in this balancing test, because the statute completely abrogated the Second Amendment. In Heller, the court postulated that the balancing test needs to be something more robust then “rational basis test”… but never specifically mandated a “strict scrutiny” analysis. Thus, circuit courts have adopted an “intermediate level of review,” which… surprise, surprise, all statutes tested have survived.
In Young, O’Scannlain essentially stated that the same prohibition that existed in Heller exists in Hawaii. With no empirical evidence that the State provided that someone “could” get a permit to carry openly for self-defense; it must be understood that the general public is prohibited from carrying openly for self-defense. Since this is a core component of the Second Amendment, and, as such, has effectively been foreclosed to the average citizen, the statute is patently unconstitutional.
Importantly, in Footnote 21, O’Scannlain states:
21 We do not address whether, after Peruta II, a concealed carry regime could provide a sufficient channel for typical, law-abiding citizens to exercise their right to bear arms for self-defense. See 824 F.3d at 927. While the County’s police chief purportedly awaits an “exceptional case” to grant a concealed carry license, section 134-9 is effectively a ban on the concealed carry of firearms. As counsel for the County openly admitted at oral argument, not a single concealed carry license has ever been granted by the County. Nor have concealed carry applicants in other counties fared much better: Hawaii counties appear to have issued only four concealed carry licenses in the past eighteen years.
Yeah… that was another dig at Thomas and Peruta II.
Had Hawaii taken the position that CCW permits were issuable to the general public…. and had they actually issued them… the ability to prohibit carrying openly most likely would be acceptable, since the average citizen could still carry outside the home.
So… based on the number of phone calls I have fielded in the last couple of days, the question on the top of everyone’s list… especially our patriot brothers and sisters who live in non-permissive counties like Los Angeles and San Francisco… is:
Where does this leave us?
Is open carry now legal?
What happens to California’s statute prohibiting open carrying of firearms?
The short answer is “good questions.”
The statutes prohibiting the open carry of firearms may still have validity to those who actually have CCWs, since their Constitutional rights have not been curtailed. To those who live in LA, who cannot get a permit, it would seem to be the law… at least in a federal tribunal… has been overturned.
There is little impetus for the State Legislature to unilaterally strike its anti-gun laws, though. If citizens were to open carry and be arrested for open carry, their response to the prosecution’s filing would be a demurrer. (A legal term that literally means “so what.”)
It is unknown if a lower court would accept the demurrer and toss the case; clearly, an appellate court would.
There is also the distinct possibility that O’Scannlain might watch Young suffer the same fate as Peruta. That is, an en banc review is requested, and the case overturned.
But, then again, if this were to happen, it would most assuredly be appealed to the Supremes… The Supremes with a new member, Justice Kavanaugh, who I really, really hope to write about next time!!!