SAN FRANCISCO — A divided panel of the 9th Circuit Court of Appeals today held Hawai`i’s prohibition on openly carrying firearms in public violates the 2nd Amendment’s right to bear arms.
Judge Diarmuid F. O’Scannlain’s majority opinion in Young v. County of Hawaii said the law’s “limitation on the open carry of firearms to those ‘engaged in the protection of life and property’ violates the core of the Second Amendment and is void; the County may not constitutionally enforce such a limitation on applicants for open carry licenses.” In a lengthy dissent, Judge Richard Clifton, a Republican appointee from Hawai`i, said the majority disregarded the 2nd Amendment’s history.
Clifton also credited the State of Hawai`i with making a reasonable, constitutionally valid policy choice in enacting the ban:
That limiting public carry of firearms may have a positive effect on public safety is hardly a illogical proposition. Many other states appear to have reached similar conclusions, and so have most other nations. . .
Hawaii has a very low firearm death rate as compared to other states: 4.5 deaths per 100,000 total population. . .
Hawaii has shown that there is a reasonable fit between its statutory scheme and public safety, and the state’s decision is owed deference.
O’Scannlain’s opinion, joined by Judge Sandra Ikuta, took issue with Clifton’s deference to the state:
No statement could more clearly indicate where the dissent goes wrong: we are certainly not evaluating a mere “policy judgment” but rather determining the scope and application of a constitutional right.
The majority opinion deemed its holding a logical extension of the Supreme Court’s holding in D.C. v. Heller, which determined the 2nd Amendment’s right to bear arms protects in-home possession of firearms:
To “bear,” the Court explained, means to “wear” or to “carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defense action in a case of conflict with another person.”
O’Scannlain went on to explain that “‘the interest in self-protection is as great outside as inside the home,’” quoting a 7th Circuit case from 2012. “Thus, carrying firearms outside the home fits comfortably within Heller’s definition of “bear,’” he wrote.
In their respective opinions, O’Scannlain and Clifton engaged in a lengthy debate on the legislative history of the 2nd Amendment, going back to 13th-century English common law, and on the relevance of various cases from the Supreme Court and other jurisdictions.
Clifton criticized the majority for relying on cases from the 19th-century South:
The cases from the antebellum South relied upon by the majority “did not emerge in a vacuum and do not reflect the full range of American legal history. Rather, they come from a time, place, and culture where slavery, honor, violence, and the public carrying of weapons were intertwined.” Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry, 125 Yale L.J. F. 121, 125 (2015), http://www.yalela wjournal.org/forum/firearm-regionalism-and-public-carry. A more balanced historical analysis reveals that states have long regulated and limited public carry of firearms and, indeed, have frequently limited public carry to individuals with specific self-defense needs. Hawaii’s regulatory framework fits squarely into that long tradition.
O’Scannlain retorted:
The dissent overlooks the fact that the Southern cases on which we rely only arose because the legislatures in those states had enacted restrictions on the public carry of firearms. Indeed, were it the case that the Southern culture of slavery animated concerns to protect the right to open carry, why would the Georgia legislature have sought to ban open carry in the first place?
A video of the Feb. 12 oral arguments is available online.
If the County of Hawai`i appeals, the Supreme Court will get a chance to decide whether to mandate open carry nationally.