Decided - The FindLaw Noteworthy Decisions and Settlements Blog

Ninth Circuit Rules 2nd Amendment Allows Open Carry of Guns in Public

For an ill-formed sentence of just 27 words, the Second Amendment to the U.S. Constitution has caused an inordinate amount of controversy. But perhaps it's because the clause is so poorly written that it allows for so much difficulty interpreting and applying it to modern times and technology.

Today, the federal Ninth Circuit Court of Appeals ruled the jumbled construction of the Second Amendment "encompasses a right to carry a firearm openly in public for self-defense." How did the court get there?

Aloha State Regulations

The text of the Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." It does little to clarify what kind of arms a person belonging to a well-regulated militia may bear, where they may bear them, and how. So states have stepped in with their own gun control laws, and those restrictions can vary widely from state to state in terms of licensing, the types of firearms and ammunition allowed, and open or concealed carry.

Hawai'i is well-known as one of the strictest when it comes to regulating gun ownership, and the state only allows the concealed carry of handguns "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property," and limits open carry of a loaded handgun only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." George Young twice applied for an open carry permit in Hawai'i and was twice denied.

The Ninth Circuit, however, decided those denials violated Young's Second Amendment Rights.

An Open-And-Concealed Case

It was a curious decision. Writing for a 3-2 majority, Judge Diarmuid O'Scannlain concluded:

"We do not take lightly the problem of gun violence, which the State of Hawaii 'has understandably sought to fight ... with every legal tool at its disposal.' We see nothing in our opinion that would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State 'a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.'"

What those permissible regulations would be, the court doesn't say. It merely throws its judicial hands in the air, asserting, "for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense."

But not a concealed firearm, mind you. The same court decided in 2016 that citizens do not have a Second Amendment right to carry concealed firearms in public, upholding a California law requiring gun owners to show "good cause" for carrying concealed handguns. The Ninth Circuit reviewed several nineteenth century cases and came to the conclusion that "even though our court has read these cases to exclude concealed carry from the Second Amendment's protections ... the same cases command that the Second Amendment must encompass a right to open carry."

That may not make intuitive sense when it comes to gun safety, but then again, neither does the Second Amendment itself.

Related Resources: