Ninth Circuit illogically rules 'there is no right to carry' in public, concealed or otherwise
A Ninth Circuit panel ruled Wednesday that Americans have no right to carry guns in public, reversing a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional. According to the ruling, provided to ACV by the court clerk:
“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, wrote for the majority of an 11-judge panel in a 127-page opinion.
Looking back on 700 years of legal history dating back to 14th century England, seven judges in the majority found “overwhelming evidence” that the law has never given people “an unfettered right to carry weapons in public spaces.”
The Ninth’s decision is ludicrous on its face, claiming to find in ancient and foreign precedent a reason to decide a constitutional issue that must, in reality, be tied only to the Constitution of the United States, which has been in effect for only 232 years. It would appear the majority of the eleven-judge panel bent over backwards to find an excuse to rule without benefit of constitutional guidance.
The seven-judge majority traced legal texts and laws back to 1348 when the English parliament enacted the statute of Northampton, which banned carrying weapons in fairs or markets or before the King’s justices. It also cited multiple laws from colonial and pre-Civil War America in which states and colonies restricted the possession of weapons in public places. The post-Constitution, pre-Civil War precedents have long since been overruled.
Nonetheless, Bybee opined, “The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces,. The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”
The lie herein is that such reasoning had anything to do with the applicant’s complaint that he was unduly denied the right to conceal carry, as he was neither a threat to “domestic tranquility” nor was he bent on “domestic violence.” The Ninth Circuit here extrapolated a reason to deny the man his rights for no judicious cause.
By upholding state laws that restrict carrying guns in public, the Ninth Circuit joined three other circuit courts that have issued similar rulings: The Second, Third and Fourth Circuits. Meanwhile, the D.C. Circuit and Seventh Circuit have struck down state laws that ban carrying guns in public. That makes the dispute ripe for Supreme Court review.
Ninth Circuit Court of Appeals Judge Jay Bybee, a George W. Bush appointee, wrote a ludicrous majority opinion Wednesday striking down the right to concealed carry in eight western states. {Photo: Jane Wilde/Salt Lake City Tribune)
Bybee was joined by another Bush appointee and five Democratic appointees.
The decision allows the continued enforcement of a law on the big island of Hawaii that limits permits for openly carrying guns, other than for hunting, to persons with an urgent need for arms and “engaged in the protection of life and property.”
A man who sought and was denied a permit for open carry for self-protection challenged the law. Evidence during the legal proceedings revealed that the county’s permits had been limited to security guards.
Wednesday’s decision overturned a 2-1 ruling in the same case a year ago by the same Ninth Circuit panel.
Judge Diarmuid F. O’Scannlain, writing the lead dissent Wednesday, called the majority decision “unprecedented” and “extreme.”
“At its core,” wrote O’Scannlain, a Reagan appointee who was joined by other Republican appointees, “the Second Amendment protects the ordinary, law-abiding citizen’s right to carry a handgun openly for purposes of self-defense outside the home. Despite an exhaustive historical account, the majority has unearthed nothing to disturb this conclusion.”
A gun control group praised Wednesday’s ruling and noted that the Supreme Court would consider this week whether to review a similar case out of New York.
“Today’s ruling, joined by respected appellate judges across the ideological spectrum, is the latest reminder that arguments against reasonable, life-saving gun laws rarely hold up in the courtroom,” said Eric Tirschwell, managing director for Everytown Law, the litigation arm of Everytown for Gun Safety.
“As the court recognized, states and localities have extremely broad power to restrict the carrying of firearms in public spaces.”
The Ninth Circuit decided in 2016 that people do not have a constitutional right to carry concealed guns in public, allowing counties to set requirements for permits and decide who gets them.
Alan A. Beck, who represented the Hawaii gun owner, said he was barred from carrying a concealed weapon under the 2016 decision so he asked for a permit to carry a gun openly. Beck said he will ask the Supreme Court to review the Hawaii case.
The Ninth Circuit has now decided that there is no constitutional right to carry a gun outside the home for self-protection, placing the court in direct conflict with other circuits and strengthening the chance the Supreme Court will step in and decide the issue, Beck said.
In California, only small towns can issue permits to openly carry guns and they rarely do so, he said. County sheriffs can issue permits for concealed guns upon a showing of “good cause” by the applicant, he said. In rural counties, such permits are often issued, but they are rarely approved in large cities, he said.
“It varies greatly from L.A. and San Francisco, where it is almost impossible to get, versus the rural counties,” he said. “That is just based on the sheriffs’ policies.”
Wednesday’s decision affects nine Western states, including California, that make up the Ninth Circuit.