A right to bear arms, and no other rights

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Last week the 9th Circuit U.S. Circuit Court of Appeals became the first federal appellate court to recognize a right to carry openly visible guns in public and strike down "open carry" restrictions in a U.S. state. In Young v. Hawaii, 2018 DJDAR 7182, Judge Diarmuid O'Scannlain wrote for a divided three-judge panel that the Second Amendment protects a broad right to openly carry guns, and that Hawaii's strong public carry laws violate this right.

Thanks to its strong firearm laws, Hawaii has lower gun death and gun suicide rates than almost every other state. But introducing open carry could change that. The evidence is compelling: Open carry endangers and intimidates people, wastes police resources, sows confusion during active shootings, and interferes with the peaceful exercise of other constitutional rights -- like free speech. Lax open carry laws are also associated with increased suicide rates: Suicide strongly correlates with gun access and availability. For these reasons and more, the Florida Supreme Court (Norman v. Florida, 215 So.3d 18 (2017)*) and several district courts have upheld laws prohibiting or restricting the open carry of firearms.

In reaching an outlier conclusion on that score, Judge O'Scannlain's panel majority made two major missteps. First, it gave short shrift to the 9th Circuit's 2016 en banc opinion in Peruta v. County of San Diego, 2016 DJDAR 5523. Peruta held that the Second Amendment does not protect the right to carry concealed guns in public. The Peruta court analyzed historical sources showing that guns in public places have long been carefully regulated, and relied on this history to reject the broad concealed carry right O'Scannlain had advocated in his overturned Peruta panel decision.

But the en banc decision in Peruta addressed a concealed carry regulation and declined to consider whether the Second Amendment affords any right to openly carry guns. That gave O'Scannlain the opportunity to advance his rejected interpretation of history once more -- this time, in support of a broad open carry right.

Second, the Young majority erred by completely disregarding the grave public safety risks that motivated Hawaii's open carry regulations. How did Judge O'Scannlain, joined by Judge Sandra Ikuta, find that Hawaii must allow open carry without even addressing the state's sensible reasons for restricting it?

The judges accomplished this sleight of hand by finding that under the Second Amendment, the right to "bear" firearms in public is on par with the right to "keep" firearms in the home. Equating public carry with home possession allowed the panel to treat Hawaii's open carry restrictions like the Heller handgun ban, striking down this evidence-based law without considering Hawaii's public safety justifications under traditional constitutional scrutiny.

As Judge Richard Clifton noted in his dissent, history and common sense suggest just the opposite. Whatever right individuals have to carry guns in public, that right is -- and always has been -- subject to reasonable regulation to minimize the serious dangers of an increasingly armed society.

Indeed, throughout early U.S. history, many states restricted or prohibited the public carry of firearms. Relying on this historical precedent, the 2nd, 3rd and 4th Circuits have all recognized that the government has greater latitude to regulate firearms in public spaces, where guns pose a greater danger, than in the home. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013)*; Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013)*.

Though not all states have historically banned public carry, this says little about the scope of the Second Amendment. The Constitution allows for regional differences in how states regulate firearms (see Blocher, "Firearm Localism," 123 Yale Law Journal 82 (2013)*), and Hawaii's public carry scheme is an example of an effective local policy in a state where strong gun laws have helped minimize gun deaths.

Instead of prioritizing public safety and Hawaii's strong regional traditions, the Young court considered the open carry restrictions in a vacuum. The court's deference to the asserted rights of gun carriers at the expense of Hawaiians' safety sets a dangerous precedent. The Young panel rejected the method of constitutional analysis -- means-end scrutiny -- that is typically applied in constitutional challenges and which requires judges to consider the government's purpose for regulating. In rejecting the method commonly used in other constitutional challenges, Young elevated the Second Amendment above other rights.

The Young decision didn't come out of nowhere. A growing number of judges have used concurring (Binderup v. Attorney General, Nos. 14-4549 & 14-4550 (3d Cir., June 1 2016) (Hardiman, J., concurring)*) or dissenting opinions (Mance v. Sessions, No. 15-10311 (5th Cir., July 20, 2018) (Ho., J., dissental)*) to endorse the absolutist view that Second Amendment rights must be viewed only through the lens of history and tradition and not public safety. This includes Supreme Court nominee Brett Kavanaugh -- dissenting in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)* -- who has said that judges have no role to play in weighing the "costs and benefits" of gun safety laws. If Kavanaugh's once-dissenting view becomes the law in more cases like Young, the right to bear arms is at risk of swallowing all others.