Ninth Circuit: Hawaiian tradition trumps 2nd Amendment on right to carry, or something

Law and Crime calls this decision in Young v Hawaii lengthy and scholarly.” My friend and colleague Cam Edwards calls it “bizarre” at Bearing Arms. I’d call it something else — “short-lived.” In a case destined to become emblematic of the Ninth Circuit’s reputation for insanity, the court ruled that Hawaiian tradition trumps the Constitution and the 2nd Amendment when it comes to the right to carry firearms outside the home.

Supreme Court, here we come!

The question presented in this case, accordingly, was limited to whether individuals have a right to carry weapons openly in public. To answer that question, and consistent with 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), the en banc court first considered whether Hawai‘i’s law affects conduct protected by the Second Amendment.

After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions, and therefore, the conduct they regulate is outside the historical scope of the Second Amendment. The en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.

Further in the decision, the en banc opinion casually notes that this doesn’t just apply to open carry, but also concealed carry — effectively putting any firearms carriage outside the home at the whim of the state:

Hawai‘i’s public carry licensing scheme is substantially the same today as it was in 1961. Hawai‘i continues to distinguish between concealed carry and open carry, although it is not clear that the difference is particularly significant. To obtain a concealed carry license from a county chief of police, a person must first show “an exceptional case” and a “reason to fear injury to [his or her] person or property.” HRS § 134-9(a).

Law and Crime’s Colin Kalmbacher notes this passage approvingly:

“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,” the opinion explains in language foreshadowing the method of inquiry and eventual ruling in favor of anti-gun regulation.

And … so? The commonwealth of Massachusetts expelled heretics from its Puritan communities too, which is why we have Rhode Island. (And Senator Sheldon “Boof Truther” Whitehouse, but I digress.) Should we allow Massachusetts to establish a state religion just because they had one in colonial times? Would slavery be legal in South Carolina today because its practice predated the Constitution as well as its entry into the United States of America? Should we adapt our reading of the texts in the 13th, 14th, and 15th Amendments to the historical context of the seventeenth century in Virginia? Of course not. This is a nonsense application of legal history, and as the dissent points out, not the only ignorant aspect of it:

The majority holds that it does not—and that a total ban on carrying a handgun outside the home does not implicate the Second Amendment right to bear arms whatsoever. The majority reaches this startling conclusion not because it finds that the text of the Second Amendment supports it, that early American cases interpreted the Amendment in this way, nor even that open public carry was regularly and uncritically subject to legislative prohibitions across our country’s early history. Instead, the majority has declared that a state may constitutionally forbid all public carry of firearms, based on the utterly inconsequential fact that the lawful manner of open public carry has historically been subject to modest regulation (but never to outright prohibition).

Respectfully, the majority’s opinion—and in particular, its extreme and bizarre reliance on the mere fact of some historical regulation of firearms—represents a gross misapplication of the textual and historical inquiries that Heller demands. Under appropriate inspection, the critical sources on the meaning of the Second Amendment—its text, its historical interpretations by the commentators and courts most proximate to the Founding, and its treatment by early legislatures—unequivocally demonstrate that theAmendment does indeed protect the right to carry a gun outside the home for self-defense, even if that right might be subject to some regulation at its edges. …

As a threshold matter, one should be wary of divining constitutional meaning from the existence of historical regulations that largely evaded constitutional scrutiny and for which the majority offers no enforcement history. This is especially true where, as here, as “[f]or most of our history[,] the question” of their constitutionality simply “did not present itself”—not least because for more than a century, “the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.” Heller, 554 U.S. at 625–26.

In any event, the nineteenth-century statutes relied upon by the majority simply do not say what the majority claims they say—much less what it needs them to say—which is that the Constitution was generally understood to allow states to “forcefully prohibit[] the mere act of carrying a firearm.” Maj. Op. 66–67.

When Hawai’i became a state, it adopted the Constitution, and the Constitution supersedes all other laws and traditions. That tenet of incorporation doctrine has developed for decades if not more than a century, and finally reached the 2nd Amendment in Heller and McDonald. The plain text of the amendment explicitly protects the right to “keep and bear arms,” the dissenters point out, explaining that the Supreme Court has already held — twice! — that “bear” clearly means carry, in the context of doing so outside the home as an individual right of effective self-defense.

And, as the dissenters also point out, the “inferior court” has a duty to abide by the precedents set by the Supreme Court, not to overturn them. That includes the historical interpretations that the Ninth Circuit’s en banc majority attempt.

For now, this ruling applies to all states within the Ninth Circuit’s jurisdiction — but not for long. As I wrote at the beginning, this will be a short-lived position. The appeal will likely fly to the Supreme Court, and there will be at least four justices interested in taking on this nonsense from out West. I’d bet that the court accepts it for the next term but acts to vacate all of the rulings applied so far in this case, just to be sure other states don’t use them as precedential in the meantime. That might not be fast enough for George Young to get his specific relief, but it will send a pretty clear signal where this case is going … which should be painfully obvious already.