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A three-judge panel of the Ninth Circuit has just ruled that the right to openly carry a firearm for the purpose of self-defense is a protected activity under the Second Amendment. The case is Young vs. Hawaii and the lawsuit challenges a Hawaii law, which says A concealed carry or open carry permit is only issued once you’ve convinced the local police chief that you are engaged in an activity “[w]here the urgency or the need has been sufficiently indicated” and the applicant “is engaged in the protection of life and property.”

Here are some key points. The Heller and McDonald cases were absolute game changers in this decision…it is refreshing to see the Ninth Circuit has heard of them. They take pains to point out that, by the logic of their Peruta vs. San Diego, if concealed carry is not a right, then open carry must be:

In short, the text of the Amendment, as interpreted by Heller and McDonald, points toward the conclusion that “bear” implies a right to carry firearms publicly for self-defense.

They cite to Dred Scott’s use of bearing firearms as a marker of citizenship to show that this is a historical right, which is a pretty awesome troll by itself:

“[I]t would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

And the justices do an extensive search of 19th-century cases, particularly Reconstruction era cases from the South that sought to prevent blacks from owning firearms:

To summarize the history canvassed thus far: the important founding-era treatises, the probative nineteenth century case law, and the post-civil war legislative scene each reveal a single American voice. The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense.

And they come to these conclusions:

Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to
a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense.21 It follows that section 134-9 “amounts to a destruction” of a core right, and as such, it is infirm “[u]nder any of the standards of scrutiny.”

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.” Wrenn, 864 F.3d at 667. 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.” Heller, 554 U.S. at 636.

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, “in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.” Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

 

 

Just a couple of thoughts here. This case almost certainly goes to an en banc hearing of the Ninth, where I would suspect that it will be overturned. But still, the opinion is now out there as having won at least once. We’ll see it again. Then the big question becomes does the Supreme Court take it on? They’ve been dodging Second Amendment cases but this one makes it hard.

If Peruta says no concealed carry and an en banc Ninth says no open carry either, then the Second Amendment becomes equivalent to your right to have a My Little Pony collection.

I’m guessing the case does go to SCOTUS and that this opinion largely carries the day. If so, the Second Amendment is safe and, what is more certain, opposition to concealed carry evaporates because I suspect more gun-grabber legislatures would rather have concealed than open carry.

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  • This commment is unpublished.
    Gerald Walden · 03:20 07/26/2018
    Here in WA State, we are an open carry state. However, it has been my understanding, the weapon can't be loaded. This doesn't Help...

    Can you open carry a loaded pistol in Washington state?
    Washington is a "shall-issue" state and will grant concealed carry permits to all applicants who meet the criteria. There are no training requirements. Open carry is lawful in Washington without any permit. ... Open carry of a loaded long gun in a vehicle is illegal, regardless of CPL possession.
    Gun laws in Washington - Wikipedia
    https://en.wikipedia.org/wiki/Gun_laws_in_Washington
    Search for: Can you open carry a loaded pistol in Washington state?
    What does open carry in Washington state mean?
    Washington is an “open- carry” state. That means a person may openly carry a firearm (pistol, rifle or shotgun) in public without a concealed-pistol license. Of course, as with any other “right” there are exceptions. A firearm may not be taken into a courtroom, jail, school, bar or parts of airports, for example.Oct 14, 2009
    Drat, need to read the RCW's...

    I got my CPL again last year after I surrendered it 20 yeas ago. (Ayob Biancha's (sp), The legality of self defense, cooled my heels back then... While, IF you ever have to use your weapon, you can be legal under the law, BUT be Illegal under the Persecuters interpretation of the same law. Ya'll gots a half mil to a Mil $ of discretionary income to defend yur self?
  • This commment is unpublished.
    John Robert Mallernee · 13:25 07/25/2018
    Here in Utah, a license is needed only when carrying a concealed weapon.

    No license is required when carrying a firearm openly.

    No license is necessary if a firearm is concealed in your vehicle, as the interior of a vehicle is regarded the same as if it were someone's residence.

    Firearms are specifically forbidden on the property of The Church of JESUS CHRIST of Latter-day Saints (i.e., the "Mormon" church), but are permitted in all other churches.

    I wear my holstered and fully loaded Ruger "Security Six" .357 magnum revolver everywhere I go, including Mormon church services (where I keep it concealed), and have no problems.

    Even without a license, to avoid trouble, I keep my firearm under my coat or shirt, knowing that if there ever is a problem, all I have to do to be in compliance with the law is to lift my coat or shirt to legally reveal the weapon.
  • This commment is unpublished.
    Robert Byrnes · 00:25 07/25/2018
    We have open carry in Nebraska
  • This commment is unpublished.
    Richard Radcliffe · 17:35 07/24/2018
    If my memory is correct, the same judge who wrote this opinion also wrote the original Peruta opinion.