Deep historical review suggests no unfettered constitutional right to open carry

In a case that may well go to the U.S. Supreme Court, the en banc 9th U.S. Circuit Court of Appeals held on March 24 that there is no unfettered constitutional right to carry small firearms openly in public. Young v. Hawai'i, 2021 DJDAR 2628. The court's decision appears to be the first appellate ruling that broadly accepts as constitutional restrictions on carrying guns in public -- at least as to concealable firearms.

In 2008's District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held the Second Amendment protects the right to have firearms in the home for self-defense. Heller left open the Second Amendment's reach outside the home, remarking that its decision did not preclude "longstanding prohibitions" on firearms that might be "presumptively lawful."

Since then, litigation in district courts and Courts of Appeal has tested whether and to what extent the right to "bear arms" applies outside the home. In particular, dozens of cases have addressed whether there is a constitutional right to carry loaded small firearms in public places, either displayed openly or concealed.

The results are not uniform. Most circuit courts have upheld state regulations of firearms outside the home, finding that while the Second Amendment applies to some extent outside the home, specific restrictions (for example, a license requirement conditioned on some kind of need for self-defense outside the home) survive constitutional scrutiny if they do not unduly burden the enjoyment of the Second Amendment right and further an important governmental interest, such as public safety. However, a couple of circuit courts have held that significant restrictions on the right to carry firearms in public are unconstitutional under the Second Amendment, concluding that Heller's framing of the Second Amendment as an individual right to "self-defense" necessarily means it extends beyond the home.

The 9th Circuit has taken a slightly different path. In 2016, the en banc court held in Peruta v. County of San Diego that individuals do not have a Second Amendment right to carry concealed weapons in public. Heller had emphasized that the Second Amendment did not create a new right, but only codified a pre-existing right -- requiring that courts look to the existing regulation of firearms at and around the time of the founding to determine the contours of the Second Amendment. Peruta took up that invitation from Heller to find sufficient regulation of concealed carry rooted in English law (back to the Statute of Northampton in 1328) through the Bill of Rights and into the 19th century to conclude that there was and is no recognized right to carry concealed firearms in public.

Now the 9th Circuit has reached a similar conclusion as to open carry. The state of Hawai'i, like many other states, has long required a license to openly carry firearms in public. To obtain an open carry license in Hawai'i, applicants must be of good moral character, demonstrate "urgency or the need," and be "engaged in the protection of life and property." Twice in 2011, George Young tried and failed to obtain an open carry license on the basis of a generalized need for self-defense. He sued the state and county of Hawai'i claiming that the licensing statute violated his Second Amendment right to self-defense outside the home and lost at the district court.

Young appealed, and on July 24, 2018, a divided panel of the 9th Circuit reversed, holding the right to carry a loaded, openly visible firearm in public came within the "core" protections of the Second Amendment that could not be regulated in the manner provided for in Hawai'i's permitting statute. The panel opinion of Judge Diarmuid O'Scannlain (long a proponent of a broad Second Amendment) elevated the right to openly carry firearms in public places to equal footing with the right to have a firearm for self-defense in one's home. After a flurry of filings by Hawai'i and amici, the 9th Circuit granted rehearing en banc.

On March 24, the 9th Circuit split 7-4 in favor of Hawai'i, with a majority decision by Judge Jay Bybee (hardly one of the more liberal members of the court). Similar to Peruta but more so, the Young majority engaged in a meticulous (57 page) review of firearms regulation in public spaces from 1299 in England into the 20th century in the U.S., concluding, "Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy, and ... 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 spaces. Indeed, we can find no general right to carry arms into the public square for self-defense."

Based on this conclusion, 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, whether they are carried concealed or openly." And, based on this, the court upheld the Hawai'i statute challenged by Young, which only applies to "a pistol or revolver and ammunition therefor."

Judge O'Scannlain issued a vigorous and lengthy dissent. Bound by Heller's directive to look to history, the dissent focused on whether "the Second Amendment, as originally understood, protect[s] the right of an ordinary, law-abiding citizen to carry a handgun openly for self-defense outside the home?" After its own lengthy (40 page) historical review, the dissent concluded that the Second Amendment extended outside the home. (Interestingly, Judge O'Scannlain excluded from consideration certain historical laws and court decisions that he viewed as inconsistent with the Heller decision, raising the difficult question of whether Heller got history right if its conclusions departed from significant historical precedent.)

A petition for certiorari to the Supreme Court appears certain. Together, Peruta and Young hold that the nine states within the 9th Circuit may enforce a restrictive licensing regime for handguns without implicating the Second Amendment. This is because, according to Young, restrictions on open carry "are historically understood to fall outside the Second Amendment's scope" and so may "be upheld without further analysis." As noted, other circuit courts have found specific public carry laws constitutional as not unduly burdening the Second Amendment or have found such laws unconstitutional.

The historical record marshalled by the Young majority -- in the court's view, the first "systematic review of the historical right to carry weapons in public" -- is impressive and persuasive. Whether other courts, including the Supreme Court, will be so carefully focused on the history surrounding the Second Amendment remains to be seen.

Beyond history, there are, of course, larger public policy questions implicated by public carry. There is overwhelming empirical evidence establishing a direct causal relationship between permissive right-to-carry laws and firearm violence. For example, a 2018 study led by Professor John J. Donohue concluded that right-to-carry states experienced a 13-15% increase in violent crime rates as compared to violent crime rates prior to passage of such laws by increasing the likelihood that law abiding citizens will commit a crime, in addition to facilitating the criminal conduct of those who generally have a criminal intent. Right-to-carry laws also furnish more than 100,000 guns per year to criminals because of increased gun theft and complicate the jobs of law enforcement who must speculate as to whether an individual is lawfully entitled to carry a weapon, or, if, on the other hand, the weapon is evidence of criminal intent. Further, refusal to cooperate with an officer in open-carry situations does not provide "good cause" for a seizure or arrest if open carry is deemed a core constitutional right. As law professor Geoffrey Corn has observed, "the volatility of a situation will be exacerbated when police are unable to determine who should and who should not be armed, or when the lawfully armed citizen believes, perhaps justifiably, that police are exceeding their authority to demand cooperation."

The Young majority did not need to address these issues, as it held states could impose restrictive license regimes on open carry of small firearms. The Young dissent did not address these issues either, apparently concluding there was an absolute right to carry loaded firearms in public, regardless of the public health consequences. If the Supreme Court addresses public carry, and if it concludes there is some such unfettered right under the Second Amendment, it will have to think long and hard about whether such a right, perhaps untethered from history, justifies the undeniable effect on our streets from the greater availability and presence of guns. 

Along with others, the authors submitted an amicus brief in Young v. State of Hawaii on behalf of the Giffords Law Center to Prevent Gun Violence.