Pro-Open Carry Court Decision in the 9th Circuit?

The 9th Circuit (Federal court including CA, Hawaii, see map) issued a 2-1 decision upholding the right of an individual to openly carry a firearm in public for self-defense under the 2nd Amendment, finding in favor of a petitioner who was summarily denied a carry permit in Hawaii. The Washington Post has a decent article. This post is for inquiring minds who want to read more about the background and implications of the decision without having to do the searching I did to find the bits and pieces. I include direct links to court opinions at the bottom.

A word of pessimism should be immediately noted: the last time the 9th Circuit issued a pro-Right-To-Keep-and-Bear-Arms (RTKBA) decision (Peruta v San Diego), it was reheard en banc (by the full panel of judges instead of just the original three) and reversed, even though the county declined to continue defending its position. When it was further appealed to the Supreme Court, SCOTUS refused to hear the case. Justice Thomas wrote an excellent and scathing dissent over the denial, joined by newly-arrived Justice Gorsuch.

This new opinion was actually written by the same justice who wrote the 2-1 Peruta opinion, Justice O'Scannlain. That original opinion was extremely well-written, well-researched, and well-supported in law. It leaned on research by Stephen Halbrook, an attorney who was involved in Heller and McDonald, into the judicial history of the RTKBA (author: "That Every Man Be Armed" and "The Founder's Second Amendment"). I would anticipate that this recent one will be as well (once I finish reading it.) None of that made any difference to the 9th Circuit majority. Justice Callahan, the judge who had joined with O'Scannlain in the 2-1 opinion, wrote one of the dissents to the en banc opinion reversing it, arguing (correctly) that the majority opinion misstated and directly violated the Supreme Court holding in Heller. That did not matter enough to the Supreme Court majority for them to bother hearing the appeal.

I would fully expect, therefore, that this more recent case, Young v Hawaii, will get similar treatment: it will be reheard en banc, very likely reversed, and appealed to the Supreme Court. What happens at the Supreme Court this time is anyone's guess. They cannot avoid the issue forever, and ongoing changes in the court might affect the outcome by the time it gets there. The downside is that the process will almost certainly take several years before the case is actually disposed of (for better or worse).

Links To Additional Sources

• Young v Hawaii, 9th Circuit opinion (PDF)
• Peruta v San Diego, 9th Circuit opinion, 13 February 2014 (PDF)
• Peruta v San Diego, 2016 9th Circuit en banc opinion (including Callahan's dissent, PDF) - 824 F.3d 919 (9th Cir. 2016) (en banc)
• Peruta v California, Supreme Court, denial of certiorari, order and dissents (PDF)
• Stephen P. Halbrook, "That Every Man Be Armed: The Evolution of a Constitutional Right" [on Amazon.com].
• A Harvard Law Review analysis (in 130 Harv. L. Rev. 1024) explains how the disagreement between the 9th Circuit majority and dissents hinged on a narrow framing of the controversy (concealed carry) versus broad framing (right to keep and bear arms). It also describes the defects in the majority opinion by not adequately defending their reasoning for restricting the issue to concealed carry alone. This analysis is highly relevant to Young v Hawaii because this recent case deals with open carry rather than concealed. This difference may make it more difficult for the courts (9th Circuit or SCOTUS) to avoid the broader issues.

Peculiar Patriots Unite!

Celebrate the Old in the New

When our great nation was founded, it was not just about revolution, not just about what was new in the New World, it was about reverence for older values and timeless truths. When the traditional rights of the American Colonists could not be protected any other way, these united states declared their independence from Britain. They fought a costly and bloody war to secure that independence.

After the war was over, the former revolutionaries attempted to establish 'a more perfect union', by way of constitutions (state and federal), including methods to protect our liberties short of another savage war or even the smaller conflicts that plagued post-Revolutionary New England. Those methods included a democratic 'reliance on the people' through voting, but also Madison's 'auxiliary precautions', the checks and balances of a constitutional federated republic. In times since, we have fought so frequently over which of these is the most important that we have often neglected both: the democratic methods and the republican principles which once fertilized our soil.

Forget Not Our Primary Duties

But what the Framers achieved was not magic: the system they created requires continual care and parts of it were left unfinished in their time, for future generations to complete according to the general pattern of the whole. As John Adams and others pointed out, it also required a generally moral people, a people responsible enough to govern themselves. We have often failed in living up to our responsibilities under the two great charters: the Declaration of Independence that we commemorate today, and the United States Constitution. The state constitutions are weedy and neglected.

If we do not avail ourselves of the means the Framers gave us for protection and responsible use of our liberties, then we, like them, will eventually be forced to resort to savagery. I know that some people express a longing for such a solution, for rebirth in conflict, but I am not one of them. I know that such revolutions are more often failures than successes, even if military victory is achieved. We need look no further than the waves of violence following the 'successful' French Revolution for affirmation.

In The Winter of Our Discontent

And yet, our system is profoundly unhealthy--- many people are justly concerned that the window of opportunity to return it to health is rapidly closing. If we are, therefore, to preserve the precious gift we celebrate today, then we had best be about it. It is the time and past time for the early-risers, the radish-radicals, to step forth, wage the we-still-hope-metaphorical battle, and restore us to our roots. We cannot turn back the clock--- no one can--- but we can grow a new plant from hallowed stock.

We have yet another election approaching, another opportunity to take action. The general election in November, however, seldom determines anything beyond which of the barely adequate and hardly distinguishable candidates will 'represent' us. The real opportunity for change (as far as elections in any case) is not in the election itself but in the August primaries ahead of them and not just in national elections but in all of the offices, local, state, and national which provide the checks and balances of our government as a whole. Frequently, however, few people participate in primaries (let alone the internal process of the parties) and many of the candidates are effectively thrust upon us by a relative handful of party elites. Then we are told that if we do not vote for this bought-and-paid-for spineless nincompoop, we will get that one, a member of the other, more evil party instead. If we do not make good choices in the primaries, then there can be none on the final election ballot.

This fight, the primary process, is one which does not end. It takes both audacity and commitment, energy and organization. A victory won today must be fought again the next election cycle. A temporary loss pursued with vigor becomes an opportunity to learn and improve; while such opportunities are still afforded to us, a winter of discontent can lead to spring growth. It is not a campaign for the timid, faint-hearted, or inconstant. The radish, our mascot, is after all a reliable yet... poignant... crop.

Cry "Radish"! 

And yet, even if you are one of those 'summer soldiers' or 'sunshine patriots' of whom Thomas Pain despaired, it is, after all, July, in the Ozarks no less. What better time is there to start?

Cry "Radish!" and make slips the roots of yore.

(The Drawing)

For anyone who is a Revolutionary War buff and particularly observant, the 'Continental' officer the buck-skinned musketeer is hiding behind (with the yellow lapels and gorget) has a uniform actually more similar to a German naval officer of the period. In fact, a similar uniform is illustrated in Copeland's "Uniforms of the American Revolution". I chose that uniform for aesthetic reasons, the blue and yellow showing up nicely against the smoky background. I left the German insignia off of the gorget. I figured a) most people would not notice, and b) if a giant war-like walking vegetable strode onto a field of battle, people might cower in strange company.

The illustration was done in ink and oil-pencils, with a small amount of pastel to give the smoke a powdery texture.