Image: Washington Monthly
Young Vs Hawaii
9th circuit court covers: Alaska, Washington, Montana, Idaho, Oregan, Nevada, California, Arizona, Hawaii, and Guam
In case you missed it, on July 24th the U.S. 9th Circuit Court of Appeals ruled that open carrying outside your home is a right the government cannot infringe upon according to the 2nd amendment; a case started in September 2012 was the beginning of the plaintiff’s third attempt at defending his rights. This flies in the face of Hawaii’s laws requiring a permit to open carry in public. Hawaii essentially allows citizens to apply for open carry in public but the plaintiff, Veteran George Young, argued that if you weren’t in the profession of being a security guard then your application would be denied. For this reason he sued the state of Hawaii. The state’s lawyers did acknowledge that only security guards have been granted open carry licenses because the application required that the applicant must need it for their job or for those that can show “reason to fear injury” to their “person or property”.
The 9th circuit panel consists of three judges. Two of those judges ruled in agreement that the 2nd amendment restricts the government from infringing on open carry while one judge dissented. Ninth Circuit Judge Diarmuid O’Scannlain wrote for the majority in a 59-page opinion, “Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens.” Because Judge O’Scannlain determined in District of Columbia vs Heller that the 2nd amendment included the individual’s right to self defense with a firearm, 9th Circuit Judge Sandra Ikuta concluded that denying someone the right to carry in public would interfere with O’Scanlain’s previous ruling.
With this decision, you should now able to legally carry anywhere right? Well no. Not exactly.
The state of Hawaii has asked for an extension of 45 days (until September 14th) in order to ask the court to rehear the case by either the same three judge panel or en banc, an 11 judge panel in the 9th circuit. Similar to what they did in Peruta vs San Diego County, where the court determined concealed carrying of a firearm was a right that can’t be infringed by the government. But then the court on its own went on en banc and said, no, concealed carry is not a right and can be restricted by the government. What makes this interesting is that the verbiage in the Peruta determination made it abundantly clear that open carry was not going to be considered. The court in the Peruta case essentially painted themselves into a corner by saying you don’t have a right to conceal carry. That is why Young’s case is so important because if you don’t have a right to conceal carry and you don’t have a right to open carry in public, then you really wouldn’t have a right to “bear arms” at all. In 2016 Hawaii did not issue a single conceal carry permit, unlike the freedom loving state of New Hampshire which eliminated all restrictions on concealed carry in 2017 joining 14 other states who also do not infringe on your right to bear arms in concealment.
You cannot have a law that gives you the state’s blessing to gain a permit, then never issue said permit. What’s the purpose of that law except to pay lip service to your subjects.
With the make up of the supreme court changing, Hawaii may not ever enter their petition; that would be a good scenario making restrictions on open carry unconstitutional. Worst case scenario would be going back to the status quo where restrictions on your right to carry in public would continue. Best case scenario is Hawaii appeals this all the way to the supreme court and the supreme court confirms your right to bear arms in public. Period. Regardless of visibility. I’ve learned not to be so optimistic though. Even if Hawaii does petition the Supreme Court, they don’t necessarily have to take it unless 4 of the judges agree to grant a writ of certiorari and only then would the case be taken. (A practice not required by the Constitution, or any law, or even within the Supreme Court’s own published rules. It’s customary since the court was given discretion over which appeals to hear in the 1891, and the 1925 Judiciary acts and also in the Supreme Court Selections act of 1988.)
However, this is all hypothetical because Hawaii hasn’t filed their petition yet and because of that we are in this sort of weird legal limbo.
So can you open carry anywhere now? Well, you can do whatever you want but I wouldn’t advise it at this time unless you want to be in a legal battle yourself.
#StayArmed #StayTrained #StayVigilant
Grey Shield Eric Couture