Circuit says open gun carry can be outlawed

Finding a centuries old Hawaiian law that requires residents to obtain a license to carry a firearm in public rests "outside the historical scope of the Second Amendment," a divided federal appeals court denied a challenge to the law Wednesday and decided states can restrict the open carrying of guns in public without violating the U.S. Constitution.

In a 7-4 decision by an en banc panel of the 9th U.S. Circuit Court of Appeals, George W. Bush-appointed Judge Jay S. Bybee, writing for the majority, held the government "may regulate, and even prohibit, in public places -- including government buildings, churches, schools, and markets -- the open carrying of small arms capable of being concealed." George K. Young, Jr. v. Hawaii et al., 12-17808 (9th Cir. Filed March 24, 2021).

The decision comes as President Joe Biden is pushing lawmakers to enact new gun restrictions after two deadly mass shootings in Atlanta and Boulder, Colorado.

Bybee was joined in his opinion by Judges Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Richard R. Clifton and Michelle T. Friedland.

"Hawaii 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," Bybee wrote.

Appellant George Young, a Hawaii resident, had twice applied for an open carry license but he was denied both times because he had failed to identify an urgent need to carry a gun in public. Hawaii's firearm licensing law requires such applicants to show they are "engaged in the protection of life and property."

The 9th Circuit's opinion states that Young instead sought a license for self-defense. After his applications were denied, Young challenged the law, noting in legal proceedings that permits had been routinely limited to security guards and arguing the restriction violated his Second Amendment right to bear arms and the due process clause of the 14th Amendment.

But after reviewing 700 years of English and American history and contextualizing Hawaii's law within that history, Bybee wrote it was clear the government "has the power to regulate arms in the public square."

"History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states' constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public places," Bybee wrote.

Other federal circuits have avoided this historical analysis when considering similar challenges, Bybee wrote, saying that each of them instead "assumed that there was some Second Amendment right to carry firearms in public." He held that the landmark U.S. Supreme Court decision in 2008 in District of Columbia v. Heller also left unresolved some questions about how the Second Amendment squares with some firearm regulations, including open carry laws.

"We do not think we can avoid the historical record," Bybee wrote. "Heller relied heavily on history, and we do not think that it exhausted all subsequent need to confront our history on resolving challenges to other firearm regulations."

Writing the lead dissent, Judge Diarmuid F. O'Scannlain held the majority overlooked the core principles of the Second Amendment and characterized its opinion as "unprecedented as it is extreme."

"Today, a majority of our court has decided that the Second Amendment does not mean what it says," O'Scannlain wrote. "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 -- i.e. to carry -- that same firearm for self-defense in any other place."

Judge Ryan D. Nelson, joined by Judges Consuelo M. Callahan and Sandra S. Ikuta, concurred with O'Scannlain and agreed with Young's argument that "there should be no dispute that any law or regulation that restricts gun ownership only to security guards violates the Second Amendment."

O'Scannlain added that the majority's finding that the open carry of a gun falls outside the scope of the Second Amendment's protections 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 ... and the foundational principles of American popular sovereignty itself," he wrote.