NINTH CIRCUIT RULES THAT SECOND AMENDMENT PROTECTS THE RIGHT TO OPEN CARRY OF FIREARM

Courtesy of James R. Touchstone, Esq. and Keith F. Collins, Esq.

On July 24, 2018, the Ninth Circuit Court of Appeals decided, in the case of Young v. State of Hawaii, 2018 U.S. App. LEXIS 20525, that the Second Amendment to the U.S. Constitution protects the right to openly bear arms in public for self-defense. The Court held that a Hawaii statute that required an individual to demonstrate he/she is engaged in the protection of life and property in order to obtain a permit to carry a firearm in public violated the core right of self-defense. Accordingly, the Court reversed the lower court’s dismissal of the case and remanded it for further proceedings.

Background

Plaintiff George Young desired to openly carry a firearm in public for personal self-defense in the State of Hawaii.  Hawaii law generally only authorizes citizens to keep firearms in their “place of business, residence or sojourn.”  However, if a citizen can demonstrate “exceptional” circumstances, the citizen can obtain a concealed carry permit.  If the citizen can “sufficiently demonstrate” that the citizen is “engaged in the protection of life and property” and “while in the actual performance of his duties[,]” an open carry permit can be obtained.  Young’s local law enforcement agency denied his application for a license to carry either an open or concealed firearm in public.  Young filed suit in federal court under 42 U.S.C. § 1983, alleging the denial of his request for permits  violated his Second Amendment right to carry a loaded firearm in public for self-defense. The district court granted the government’s motion to dismiss, and Young appealed.

Scope of the Right to Bear Arms

The Ninth Circuit reversed the lower court’s dismissal of the suit, finding that the Second Amendment guarantees the right to self-defense in public.  The Court considered its recent en banc decision of Peruta v. County of San Diego, 824 F.3d 919 (2016).  The Court noted that California law generally prohibits the carrying of firearms in public.  See Cal. Penal Code §§ 25400, 25850, 26350.  However, the Court noted that San Diego County left open the possibility for a person to carry a concealed firearm upon the demonstration of “good cause.”  The Court determined that the Peruta decision applied only to the right to the concealed carry of firearms in public, which it held fell outside the scope of the Second Amendment.  The Court stated that Peruta left unresolved the question of whether the Second Amendment encompasses a right to open carry.  According to the Court, “Young’s claim therefore picks up where Peruta’s left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense.”  The Court then turned to a comprehensive review of prior case law decisions and other historical precedent.

The Court noted that its interpretation of the scope of the Second Amendment was guided by District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010).  The Court observed that the Supreme Court, in Heller, invalidated a District of Columbia ban on possession of a handgun in the home.  The Court noted that the Supreme Court, in McDonald, invalidated a Chicago law that effectively banned handgun possession by residents of the city.  The Court further noted that it was “not the first circuit to grapple with how far the Second Amendment applies outside the context of the home.”  The Court observed that two other circuits previously had held that the Second Amendment “indeed protects a general right to carry firearms in public for self-defense.”  See Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 936-37 (7th Cir. 2012.).  The Court remarked that the right to “bear” arms should protect something more than mere carrying incidental to keeping arms. The Court observed that, “While the Amendment’s guarantee of a right to ‘keep’ arms effectuates the core purpose of self-defense within the home, the separate right to ‘bear’ arms protects that core purpose outside the home.”  After a comprehensive analysis of historical, contextual, and legal sources regarding what specific activities are protected by the Second Amendment, the Ninth Circuit concluded that the Second Amendment does encompass the “core” right to openly carry a firearm in public for self-defense purposes.

Having first determined that the right to open carry of firearms in public for self- defense was a fundamental right, the Court turned its analysis to an evaluation of the public interests advanced by the state’s restriction on that fundamental right.  Here, the Court determined that Hawaii’s restriction on issuing permits to only those who protect life and property, and then only while in the actual performance of those duties, amounted to denying average citizens the fundamental right to carry a firearm in public for self-defense.  In essence, the Court observed that only security guards could openly carry firearms under Hawaii’s regulations, and then only while working. The Court reasoned that, because this fundamental right is an individual one and Hawaii’s regulations prohibit individual citizens from exercising this right, the regulations could not withstand any level of judicial scrutiny. In essence, no governmental interest could justify this blanket restriction on the exercise of this fundamental right.  Accordingly, the Court held that Section 134-9’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 therefore void.  The Court stated that the County could not constitutionally enforce such a limitation on applicants for open carry licenses.

The Court then spent considerable time rebutting the dissent’s viewpoint that the Hawaii code withstood constitutional analysis under the intermediate level of judicial scrutiny.

The Court stated that it did not take lightly the problem of gun violence, which the State of Hawaii “´has understandably sought to fight . . . with every tool at its disposal.’”  The Court further stated that it saw “nothing in our opinion that would prevent the state from regulating the right to bear arms, for the Second Amendment leaves the State ‘a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.’” Quoting Heller, 554 U.S. at 636 [Emphasis in original]. The Court remanded the case for further proceedings, finding that Young “has indeed stated a claim that section 134-9’s limitations on the issuance of open carry licenses violate the Second Amendment.”

HOW THIS AFFECTS YOUR AGENCY

While this decision was remanded back to the lower court to allow Young’s case to proceed, it is possible that this issue will again be reviewed by an en banc panel of Ninth Circuit Justices, as was the case in Peruta II, and/or that review will be sought on the matter with the Supreme Court.  As of this writing, the Young case means that any laws or regulations that explicitly, or in practice, preclude the average citizen from openly carrying a firearm in public for self-defense may be unconstitutional.  It remains to be seen how this decision will affect California’s statutes prohibiting the open carry of firearms in public places.  See Cal. Penal Code § 25850, 26350.

However, while the Young case may call into question the validity of these California statutes, they currently remain undisturbed directly by this decision. Accordingly, California statutes that prohibit open carry without a permit remain in force.  Unless and until these laws are invalidated by a court of competent jurisdiction or repealed by the Legislature, law enforcement agencies may continue to enforce these statutes.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or kfc@jones-mayer.com [for Keith Collins].

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.





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