Saturday, July 28, 2018
A sharply divided three-judge panel of the Ninth Circuit ruled this week that Hawaii's restriction on the open carrying of firearms violates the Second Amendment.
The ruling fills a gap--and is in tension with--the en banc Ninth Circuit's previous say-so in Peruta II that the Second Amendment doesn't protect concealed carry. (Ninth Circuit law now says the Second Amendment protects open carry, but not concealed carry.) For that reason, the case is primed for en banc review.
The case, Young v. Hawaii, tested Hawaii's limitation on the open carry of firearms to those "engaged in the protection of life and property." The court first said that open carry "falls within the core of the Second Amendment." This required some careful navigating around the en banc court's prior ruling in Peruta II, and even taking that ruling on. The court, after surveying and glossing the history, simply concluded that "even though our court has read these cases to exclude concealed carry from the Second Amendment's protections, the same cases command that the Second Amendment must encompass a right to open carry."
The court went on to say that Hawaii's restriction fails at any level of scrutiny:
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. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. It follows that [Hawaii's restriction] "amounts to a destruction" of a core right, and as such, it is infirm "[u]nder any of the standards of scrutiny."
The ruling drew a sharp dissent, on all points. Between that, and the tension with Peruta II, this isn't the last we'll see of this case. Look for en banc review.