Opinion

Hawaii and California's Huge Second Amendment Victory

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Posted: Jul 27, 2018 12:01 AM
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Hawaii and California's Huge Second Amendment Victory

Tuesday’s decision by the 9th Circuit Court of Appeals means that people in the western U.S. will now be able to openly carry a handgun in public. The decision only applies to districts under the 9th Circuit’s jurisdiction, but it will likely soon affect the rest of the country. It is a huge ruling that strikes down existing state prohibitions in Hawaii and California. 

The case involved George Young, who wanted to publicly carry a firearm in the State of Hawaii for personal self-defense. Young applied twice for a handgun permit to carry either openly or concealed, but they denied his application each time. Hawaii’s laws require demonstration of “reason to fear injury to the applicant’s person or property.” Similar rules apply to open carry. But, in fact, Hawaii refuses to acknowledge that anyone has good reason to fear for their safety and is not issuing a single permit.

The Second Amendment was clear when it enshrined the “right of the people to keep and bear Arms.” The Supreme Court has stated: “‘Keep arms’ was simply a common way of referring to possessing arms. . . . At the time of the founding, as now, to ‘bear’ meant to ‘carry.’” As with a previous decision by the 7th and DC Circuits, people have the right to carry. The government can’t stop otherwise law-abiding Americans from any ability to protect themselves outside their home.

Even states that never (Hawaii) or virtually never (California) issue concealed handgun permits will now have to allow people to openly carry handguns in a holster.

Gun control advocates could appeal the three 9th Circuit judges’ decision to the entire 9th Circuit (an en banc decision). The court as a whole is very liberal, and may very well reverse Tuesday’s decision. But such a ruling would definitely be appealed to the U.S. Supreme Court, which would presumably overturn it. This would make open carry legal nationwide.

Or gun control advocates could appeal directly to the Supreme Court, with the same result. President Trump’s election has made all the difference here.

To try to avoid a loss at the Supreme Court, the other option for gun control advocates is to accept their loss in the 9th Circuit and not appeal. Given the likely uproar in liberal Hawaii and California over people openly carrying guns on their hips, these liberal states will likely have to allow people to carry in some way and may revisit their extremely restrictive concealed handgun laws. 

Outside of California, Hawaii, and New York, about 8.5 percent of adults nationwide have concealed handgun permits. In California, the percentage is about 0.4%, and in Hawaii it is 0%. This will have to change.

Even if Hawaii doesn’t appeal, the decision will still have ramifications for the rest of the country. The Supreme Court tends to limit itself to cases in which different circuit courts have made contradictory rulings. If other circuit courts rule against open carry, those decisions will be appealed and one will in all probability be accepted by the Supreme Court.

Gun control advocates thought that they had won in 2016, when the entire 9th Circuit ruled in Peruta v. County of San Diego that the Second Amendment does not protect the right to concealed carry. Then the court ignored Supreme Court precedent, probably in the expectation that Hillary Clinton would be elected president. The decision ignored the question of open carry, even though the plaintiffs argued that the 9th Circuit could ban either concealed or open carry, but not both.

The decision to ignore open carry in Peruta will now come back to haunt gun control activists. Elections also matter and with President Trump’s appointments to the Supreme Court, the 9th Circuit’s may realize this time it will have to follow the intent in earlier Supreme Court cases.

Given the overwhelming academic evidence that concealed handgun laws protect people’s safety and how law-abiding permit holders are, it is about time that the courts intervened. 

A final outcome for the entire country may still be 4 or 5 years away, but it is just a matter of time. The eight states with very restrictive gun laws are going to have to change their rules.