Thursday, July 26, 2018

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].
  • 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.

1 comment:

  1. Eric,
    Thank you for taking the time to write about open carry and for publishing this article.