Yesterday, the Ninth Circuit Court of Appeals, sitting en banc, upheld Hawaii’s restriction on carrying firearms.
Under Hawaiian law, residents can carry a firearm only if they prove to the state that they have an “urgency of need,” are of “good moral character,” and are “engaged in the protection of life and property.” Thus, the state, if it’s clever, can effectively ban its residents from carrying guns. Alternatively, it can manipulate its determinations as to who can carry them to favor preferred parties and/or members of preferred classes.
The vote to uphold Hawaii’s law was 7-4. The majority opinion was by Judge Jay Bybee. He’s a Bush 43 appointee who was vilified by the left for signing the Justice Department’s “torture memo” in early days of the war on terror.
I’m not an expert on the Second Amendment, nor am I Power Line’s go-to writer on gun issues. For what it’s worth, however, I consider the Ninth Circuit’s decision highly dubious and a good candidate for reversal by the Supreme Court.
The majority opinion opens by noting that “Hawai‘i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago—nearly fifty years before it became a U.S. territory and more than a century before it became a state.” (Page 15) Okay. But when Hawaii became a state, it agreed to be bound by the U.S. Constitution. Thus, its traditions cannot trump the Second Amendment.
The majority proceeds to a broader discussion of the history of restrictions on firearms, dating back to the Middle Ages. It concludes that because history demonstrates a “longstanding” tradition in English and American law of government “prohibit[ing] certain weapons from entering . . . public spaces as means of providing ‘domestic Tranquility’ and forestalling ‘domestic Violence,’” there “is no right to carry arms openly in public.” (Page 113)
Yet, the majority acknowledged that in colonial times, there was “a general acceptance by local governments of some firearms in the public square.” (Page 61)
Judge Diarmuid O’Scannlain wrote a powerful dissent. He stated:
The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II (emphasis added). Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for selfdefense in any other place.
This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, we now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.
In so holding, the majority reduces the right to “bear Arms” to a mere inkblot. The majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.
Cam Edwards at Bearing Arms finds a silver lining in the Ninth Circuit’s decision. He contends that “there is now a clear conflict on the right to bear arms in the various appellate courts [which] greatly enhances the odds of the Court taking at least one of these cases in the very near future.” Indeed, Edwards says that later this week, the Court will consider in conference whether to hear such a case.
On the other hand, Kent Scheidegger at Crime & Consequences points out that “the high court has passed on a lot of Second Amendment cases that seemed to be eminently ‘certworthy.’”
Again, I’m no expert, but this decision seems more certworthy than most.