U.S. appeals court: Constitution gives right to carry gun in public

[Hasaf]

I just happened to stumble across this. The story is dated JULY 24, 2018 / 9:56 AM. My quick search here showed nothing. This lookc major; but there is probably a devil somewhere in the details.

(Reuters) - A federal appeals court ruled on Tuesday that the U.S. Constitution’s Second Amendment protects a right to openly carry a gun in public for self-defense, rejecting a claim by Hawaii officials that the right only applies to guns kept at home.

. . .

Two of the three 9th Circuit judges voted to reverse a decision by the U.S. District Court in Hawaii that state officials did not infringe on the rights of George Young, the plaintiff, in twice denying him a permit to carry a gun outside.

“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

. . .

from here

Yes, this ruling interests me. Even though it does not apply where I live or work, I do wonder what impact it will have while visiting California.

 

[ilbob]

If the story can be believed the court ruled that open carry was protected.

That will terrify the antis.

 

[Hasaf]

If the story can be believed the court ruled that open carry was protected.

That will terrify the antis.

It might be an earthshaking ruling; or it might be a fizzle. I think it is too early to tell.

Here a couple quotes form the opening summary of the actual ruling:

. . .
Analyzing the text of the Second Amendment and reviewing the relevant history, including founding-era treatises and nineteenth century case law, the panel stated that it was unpersuaded by the County’s and the State’s argument that the Second Amendment only has force within the home. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. The panel held that because Hawaii law restricted plaintiff in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment.
. . .
The panel stated that 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. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violated the core of the Second Amendment and was void under any level of scrutiny.
. . .

full text of the ruling here

Pg 50-51
In sum, we reject a cramped reading of the Second Amendment that renders to “keep” and to “bear” unequal guarantees. Heller and McDonald describe the core purpose of the Second Amendment as self-defense, see Heller, 554 U.S. at 599; McDonald, 561 U.S. at 787, and “bear” effectuates such core purpose of self-defense in public. We are persuaded, therefore, that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment.

--------------------
20 The dissent mischaracterizes the Seventh Circuit’s decision in Moore. According to the dissent, Moore did not address whether the “core” of the Second Amendment includes the right to bear arms outside the home. Dissent at 3. That is incorrect. While not discussing the core as explicitly as we do here, Moore did make clear that the Second Amendment “confers a right to bear arms for self-defense, which is as important outside the home as inside.” 702 F.3d at 942 (emphasis added); see also id. at 941 (“[T]he interest in self-protection is as great outside as inside the home.”). And at the very least, Moore rejected our dissenting colleague’s attempt “[t]o confine the right to be armed to the home [and thereby] to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.” Id. at 937. YOUNG V. STATE OF HAWAII 51

Pg 58
But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, “in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.” Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

 

[danez71]

One of the attorneys is a member on a CA gun forum. He has acknowledged the win and said he'll follow up with what it means.

Seems confirmed to me.

ETA, I wouldnt be surprised if an en banc hearing is requested and that's what overturned Peruta and SCOTUS refused to hear that case leaving it overturned.

 

[CLP]

Here it is on Fox. Story isn't running on ABC or CNN. They must be stunned.

 

[Milt1]

If you've read the 2nd Admendment didn't you automatically deduct that an individual has a right to defend themselves anywhere in this country (at that time in history). I did and I didn't need a court to tell me what the facts are! Since it was written (history above) a number of states have reshaped it to mean what they want it to mean rather than stand by what the framers actually meant for it to mean and I'm tickled to see them getting their hands slapped. In my opinion any state that tries to alter any of the Amendments should be faced with an enormous fine. I wish Congress would pass such a bill!

 

[Wichaka]

Active and retired LEO's can carry in all stares, the same should be applied to everyone...seems we live in the separate states of America.

 

[Mark 40]

From the nutty ninth circuit court no less........

 

[Swifty Morgan]

I just read a lot of the opinion. Bear in mind that I am not being paid to look at it, so my level of effort is not going to be that great.

It seems like the lower court begged for this. In fact, the impression I get is that the judge had no respect for this plaintiff and did her best to turf his case into oblivion, using frivolous conclusions. How unusual for a judge. Not.

The lower court judge is one Helen Gillmor. Schooled in New York and Boston. Clinton appointee. It appears that her record was undistinguished prior to her appointment. She was a PD and worked as a part-time judge in family court. Family law is not a field that draws Borks and Cardozos. It's pretty simple stuff, like insurance defense.

EDIT: she apparently did part-time work as a state district judge. Not that this indicates that she is bright or even of normal intelligence.

She said the Second Amendment didn't give people the right to carry outside the home, so it didn't cover the plaintiff's beef. That was stupid. The text says "keep and bear," which is 18th-Century for "own and carry." She was asking to be slapped down.

The appellate opinion describes some of Hawaii's gun laws, and it's horrifying. Apparently, you can't have a gun in your vehicle in Hawaii! Not until today, anyway. So much for Magnum P.I. and his trusty 1911. You can't transport a gun unless going to gun range, going to gunsmith, yada yada yada. Basically, Hawaii says people in cars are not allowed to defend themselves.

Judge Ratched also held that the suit against the state (one of the defendants) was barred by sovereign immunity. This is a limited immunity enjoyed by government bodies and personnel. It is not something I have dealt with a lot, but the basic idea is that certain lawsuits are barred in order to prevent nuts from crippling the government with litigation and to keep them from punishing government employees for doing their jobs. It seems bizarre to apply it here, since there are all sorts of exceptions to it.

If the cops give you a beating, for example, you can file for relief under 42 U.S. Code § 1983, which allows people to sue when the government deprives them of their rights. The plaintiff in the Young case sued under this statute, so one wonders what the judge was thinking. She (her clerks, really) researched the case, and I have not, so maybe she knows something I don't, but it smells bad.

I shouldn't sell myself short. The appellate court agrees with me.

The interesting thing about the reversal is that the Ninth Circuit is totally behind restrictions on CONCEALED carry yet holds that OPEN carry has to be allowed. Imagine the havoc this is going to stir up. Open carry is like Nazism to liberals.

The court goes into a discussion of the meaning of the terms "keep" and "bear," as I did above, and they come to the same (unavoidable) conclusion I did. "Bear" means nothing if you can only "bear" inside your house. They cite these words from Wrenn v. D.C.: "After all, the Amendment’s core lawful purpose is self-defense, and the need for that might arise beyond as well as within the home."

DUH.

Following this, there is a very long and boring study of the history of gun laws, and it ends with an affirmation: the right to keep and bear arms is an INDIVIDUAL right not tied to membership in a militia. They cite the Heller case to this effect. This short-circuits a cloud of cases that incorrectly invoke the militia thing, and the court discounts them. Buh-BYE.

There are a couple of confusing paragraphs about cases limiting carry (not necessarily concealed), but it's not all that important to understand the badly written text, because at the end, the court refuses to follow these cases.

Unbelievably, the court then goes into a discussion of post-Civil-War laws intended to take guns away from freed slaves. I feel like I'm dreaming. Is this really the Ninth Circuit? Are they really comparing gun control to slavery? Pinch me! The conclusion, based on the freedmen-related cases is this: 2A must provide a right to OPENLY CARRY.

This is where I fainted for a minute.

Take a look: "The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense."

In HAWAII, mind you.

After this, there is a long section pimp-slapping the dissenter. I didn't read it. Tedious and not all that important, since the majority ruling is now the law. The majority judges were just trying to poison the well and make the dissenter look stupid.

Now I'll mention a few things we should consider.

One of the majority judges was a guy with a huge Gaelic-looking name. He is a Reagan appointee. He appears to be conservative. He has made trouble for gun-grabbers before.

The other majority judge was one Sandra Ikuta. I don't see a lot of information about her on the web, but she was appointed by Bush II, and the L.A. Times was sufficiently disturbed to include her in an article on the conservative "threat" to the Ninth Circuit.

The dissenter (spit) is one Richard Clifton, also a Bush II appointee.

It's important to know where the judges came from, because with an issue like this, it pretty much tells us what they'll decide. A Clinton appointee screwed this case up. A Reagan appointee and a Bush II appointee fixed it.

This illustrates a point most voters are too stupid to understand: when you vote for a president, you are voting for every federal judge appointed during his term, and those judges decide what the law means. If the local district court tells you the RICO Act bars eating Cheez Doodles on Yom Kippur, that's what it means, until the case is appealed. It's extremely important to vote for presidents who basically agree with your view, EVEN IF THEY HAVE ORANGE HAIR AND MADE FUN OF YOUR CANDIDATE DURING DEBATES.

This case shows that voting intelligently can make a difference even on the Ninth Circuit, which is generally considered to be hopelessly biased.

Will the case survive in its current form? Too early to say, but it looks great right now.

If I'm wrong about any of this, pay me a huge fee, and I'll do real research and correct myself.

 

[Deanimator]

That's similar to what happened in Ohio.

The anti-gun cultists claimed that there was no need for legal concealed carry because the law protected open carry... until a LOT of people started open carrying.

Not too much later we got shall issue concealed carry that's steadily had its "poison pills" removed over time.

Anti-gun cultists should beware of that for which they wish. Sometimes they get it.

 

[Hasaf]

. . .
Following this, there is a very long and boring study of the history of gun laws,
. . .
Unbelievably, the court then goes into a discussion of post-Civil-War laws intended to take guns away from freed slaves.

First, thank you for a great off-the-cuff analysis.

I will say that I found the historic notes to be a good read. There was practically a book worth of gems in that section. I was also taken back by the courts taking the opportunity to inject a small bit of humour into the document; they seemed to actually be enjoying what they were doing. I am serious in saying that the history sections of this report need to be spliced together to provide a great read.

 

[Swifty Morgan]

It's a very strange opinion. Very lively.

 

[AlexanderA]

Here it is on Fox. Story isn't running on ABC or CNN. They must be stunned.

It 's being covered on the Huffington Post.

 

[CLP]

As of the time of this posting, not on CBS, NBC, CNN, or ABC
I'll check to see what HuffPo has managed to write.

 

[AlexanderA]

If you've read the 2nd Admendment didn't you automatically deduct that an individual has a right to defend themselves anywhere in this country (at that time in history). I did and I didn't need a court to tell me what the facts are! Since it was written (history above) a number of states have reshaped it to mean what they want it to mean rather than stand by what the framers actually meant for it to mean and I'm tickled to see them getting their hands slapped. In my opinion any state that tries to alter any of the Amendments should be faced with an enormous fine. I wish Congress would pass such a bill!

Actually, the 2nd Amendment does not explicitly mention personal self defense as a justification for keeping and bearing arms. (IMO that was simply a given in 1791, and therefore didn't need to be mentioned in the Constitution.) Everything in the Amendment points to a civic right in which the general public (the original universal militia) should be as well armed as the standing army.

Personal self defense was grafted on to the Amendment as recently as the 2008 Heller case. The previous Supreme Court pronouncement on the 2nd Amendment, the Miller case of 1939, keyed on the usefulness of arms to the militia.

 

[readyeddy]

Just about the same story is being carried by the LA Times, SF Chronicle and other Ninth Circuit newspapers. They don't seem to be worried. They all mention that Judge O'Scannlain was overruled by the en banc Ninth Circuit in Peruta II.

 

[AlexanderA]

As of the time of this posting, not on CBS, NBC, CNN, or ABC
I'll check to see what HuffPo has managed to write.

I checked again, and the Huffington Post has taken it off their front page, but archived the article:

https://www.huffingtonpost.com/entr...urt-ruling-hawaii_us_5b575e2ee4b0fd5c73c964da

 

[CLP]

I checked again, and the Huffington Post has taken it off their front page, but archived the article:

https://www.huffingtonpost.com/entr...urt-ruling-hawaii_us_5b575e2ee4b0fd5c73c964da

That was the first time I've been on the HuffPo site. I feel dirty and need a shower. They don't even have a search function, so I had to wade through page after page looking for it.

 

[CapnMac]

Having only read the specialist press copy on this, I would love to presume that this is the result of a common sense, srict interpretation read of the Constitution

Given the Circuit this has come out of, I cannot but harbor a concern that this is actually a repudiation of just the sort of poorly-crafted laws the "strict control" States tend to craft. That, the Circuit had no grief with the intent of the law, merely that it was so poorly crafted.

So, until I can wade through the text of the decision, I'll reserve my, admittedly layic, opinion.

 

[readyeddy]

The decision found the 2A to encompass self defense outside of the home, albeit only for open carry because of Peruta II, so the decision goes beyond the Hawaii statute.

The Hawaii statute is a little strange. 134-9 is "may grant" for concealed carry, but only allows security guards to open carry. So the court held 134-9 destroys a core right under any scrutiny, although intermediate scrutiny would have been applied if the statute wasn't so narrow.

 

[Swifty Morgan]

Actually, the 2nd Amendment does not explicitly mention personal self defense as a justification for keeping and bearing arms. (IMO that was simply a given in 1791, and therefore didn't need to be mentioned in the Constitution.) Everything in the Amendment points to a civic right in which the general public (the original universal militia) should be as well armed as the standing army.

Milt1 was saying he merely deduced it from the text, and self-defense was mentioned expressly in some early state constitutions (drafted by the same people who worked on the US Constitution).

It's interesting to look at the passages from 18th-century state constitutions, because they show that Americans truly wanted to be able to go toe-to-toe with the armed forces of the federal government. One purpose of militias was to prevent our country's army from taking over. Leftists don't like to hear about that. It appears that the founding fathers would be very much against the ban on new automatic weapons. They didn't want militias to take on the army with inferior weapons. The very idea of a standing peacetime army disturbed them.

 

[TTv2]

Actually, the 2nd Amendment does not explicitly mention personal self defense as a justification for keeping and bearing arms. (IMO that was simply a given in 1791, and therefore didn't need to be mentioned in the Constitution.) Everything in the Amendment points to a civic right in which the general public (the original universal militia) should be as well armed as the standing army.

Personal self defense was grafted on to the Amendment as recently as the 2008 Heller case. The previous Supreme Court pronouncement on the 2nd Amendment, the Miller case of 1939, keyed on the usefulness of arms to the militia.

Self defense outside of the home is protected because everyone has the right to life, liberty, and property. Lethal self defense is acceptable in every state if you're justified in using it, it's just that firearms are so restricted because of their increased lethality they paint a defendant in potential bad light when used. If someone attacked you and you had a knife and stabbed them to death, you don't look at bad in the eyes of a potential prosecutor because the attacker would have to be so close to you, it would make it impossible for you to escape or evade him. You don't get that same type of "inherent innocence" with firearms.

You can thank Hollywood and the media for that.

 

[TTv2]

IIRC, given that this ruling came down in the 9th, that means any state represented by the 9th Circuit is now a permitless open carry state, yes? Kind of an oxy-moron as most states, CA and Hawaii as the exception already allow permitless open carry.

I don't see why it would matter if the 9th Circuit in an en bloc decision would want to strike this down because only two states would really be affected by this and the potential of them striking it down means it could go to SCOTUS where it would most likely be upheld and become a national decision. Thus you go from risking two states in California and Hawaii to other handgun carry restrictive states like Illinois, New York, New Jersey, Massachusetts, etc. having to basically legalize permitless open carry. Can you imagine someone walking down Mulberry St in Little Italy or Chinatown with a six shooter on the hip?

That's something no Anti wants and that's a very possible outcome as I don't see how SCOTUS would turn down hearing this on appeal given that we will likely have Ka... Kava... Justice Avada Kedavra on the bench. Hell, having Brett be there would be a literal killing curse on the hopes and dreams of Anti's all over the country on that kind of ruling.

This has actually become the most interesting gun case we've seen since Heller because its implications are vast. If open carry goes permitless in every state and blood is not running in the streets, then there's no reason not to make concealed carry the same in individual states through state legislatures. Of course the argument there will be the same straw man of "peace officer safety", but that's been debunked as what criminal is gonna tell a cop he's carrying a gun?

 

[Milt1]

Actually, the 2nd Amendment does not explicitly mention personal self defense as a justification for keeping and bearing arms. (IMO that was simply a given in 1791, and therefore didn't need to be mentioned in the Constitution.) Everything in the Amendment points to a civic right in which the general public (the original universal militia) should be as well armed as the standing army.

Personal self defense was grafted on to the Amendment as recently as the 2008 Heller case. The previous Supreme Court pronouncement on the 2nd Amendment, the Miller case of 1939, keyed on the usefulness of arms to the militia.

Actually you're not only wrong you're very wrong! Check this out for clarification: https://fee.org/articles/reading-the-second-amendment/

 

[equin]

Just about the same story is being carried by the LA Times, SF Chronicle and other Ninth Circuit newspapers. They don't seem to be worried. They all mention that Judge O'Scannlain was overruled by the en banc Ninth Circuit in Peruta II.

Excellent point and the reason why I'm hesitant to consider this ruling final. The decision was by a three judge panel. The State can still petition for a rehearing en banc where all the Circuit Court Judges can reconsider it just like they did in Peruta II. Time will tell what happens next.