Whoa: Ninth Circuit Rules We Have A Constitutional Right To Open Carry For Self-Defense

Posted: Jul 24, 2018 1:45 PM
Whoa: Ninth Circuit Rules We Have A Constitutional Right To Open Carry For Self-Defense

The Ninth Circuit is one of the most liberal courts, and the one that gave the Trump White House heartburn over its executive order on immigration. But even a blind squirrel finds a nut. This court recently ruled that we have a constitutional right to open carry in public for self-defense (via Reuters):

A federal appeals court ruled on Tuesday that the U.S. Constitution’s Second Amendment protects a right to openly carry a gun in public for self-defense, rejecting a claim by Hawaii officials that the right only applies to guns kept at home.

The extent of the right to gun ownership protected by the Second Amendment is one of the most hotly contested debates in the United States, where life has been punctuated by a steady stream of mass shootings.

The ruling issued by a three-judge panel on the 9th U.S. Circuit Court of Appeals, based in San Francisco, came a year after the U.S. Supreme Court declined to rule either way on the carrying of guns in public.


“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

So, does this get bumped up to the Supreme Court? If Judge Brett Kavanaugh is confirmed, and it looks like he will be, then the chances improve that the high court could hear arguments to finally decide whether we have the constitutional right to carry loaded firearms in public. According to SCOTUSblog, the question was thrust before the Court in Drake v. Jerejian four years ago:

1)Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

The Court declined. In 2013, Woollard v. Gallagheralso asked whether the so-called justifiable need provision for concealed carry permits was constitutional. Again, the court declined. On the question about the constitutionality of state-based assault weapons bans, the Court again decided to take a pass. So, based on this history, I’m not going to jump for glee just yet. Then again, it shows that the fight for our Second Amendment rights shouldn’t let up, nor should we give up no matter what, even if its in the deepest, bluest, most Democratic part of the country. Fight on—that’s how we got the Hellerand McDonald decisions. Besides abortion, anti-gun liberals can probably guess the odds of the Court accepting this case if Kavanaugh is confirmed. The Supreme Court has been under pressure to accept for gun rights cases. Some have argued that the gay marriage ruling in Obergefell should apply to concealed carry permits. At the time, the National Rifle Association warned this logic is not worth gambling on until the Court decidedly issued a ruling on this question:

On June 26, 2015, the U.S. Supreme Court issued an opinion in the case of Obergefell v. Hodges, which concerned whether same-sex marriage is a right protected by the U.S. Constitution.   Although the case did not address the right to bear arms, some pro-gun advocates began debating whether the Court’s reasoning and analysis had application to national concealed carry licensing reciprocity. 

This is a reasonable question. If states that formerly did not sanction same-sex marriage now have to recognize all marriages from states that do, shouldn’t that also mean restrictive “may issue” concealed carry jurisdictions have to recognize concealed carry licenses from less restrictive “shall-issue” jurisdictions? Some commentators went even further, insisting that Obergefell has conclusively settled the national reciprocity issue in favor of gun owners.

Unfortunately, the answer is not that simple. In particular, we strongly advise concealed carry license holders not to assume Obergefell provides them with the legal basis they need to carry without an in-state license in strongly anti-gun states such as Maryland, New Jersey, or New York. Doing so at this point would still subject the traveler to arrest and criminal prosecution. 

This is so for a number of reasons, chief of which is that the U.S. Supreme Court has not yet ruled squarely on the question of whether the Second Amendment protects the right to carry a loaded handgun in public, and if it does, whether states must recognize each other’s permits. The landmark cases of Heller and McDonald only concerned the question of handgun possession in the home. 

Until the Supreme Court rules on the issue conclusively, certain reliably anti-gun jurisdictions can be counted on to exist in a state of denial and defiance. If states and lower courts can ignore a congressional statute like Firearm Owners’ Protection Act – and they do – they certainly can ignore arguments that the philosophical bases for interstate recognition of same-sex marriage compel interstate recognition of concealed carry permits.

The day that these questions concerning open and concealed carry being answered could be drawing closer, but for now, let’s celebrate this legal win. 



UPDATE: A good thread on the decision, but let’s face it—the Supreme Court is going to have to weigh in at some point, right?