2018-07-25 11:27:24 UTC
Ninth Circuit: Second Amendment Secures Right to Carry Guns in Public
The Ninth Circuit had earlier held -- citing D.C. v. Heller -- that the
Second Amendment doesn't secure a right to concealed carry, but the panel
now holds that it secures a right to carry openly (though it reserves the
possibility that a state might be able to choose whether to allow open carry
or to allow concealed carry).
Eugene Volokh|Jul. 24, 2018 1:56 pm
In today's Young v. Hawaii, a Ninth Circuit panel holds by a 2-to-1 vote
(Judge Diarmuid O'Scannlain, joined by Judge Sandra Ikuta, with Judge Robert
Clifton dissenting) that the Second Amendment secures a right to carry guns
openly in public places. Though the Ninth Circuit had earlier resolved in
Peruta v. County of San Diego (en banc) that the Second Amendment doesn't
secure a right to concealed carry -- as D.C. v. Heller had earlier
suggested, in reliance on 19th-century cases that had generally rejected a
right to concealed carry -- the panel concludes (also citing Heller and
19th-century sources) that there is a right to open carry, so as to be able
to defend oneself in public places as well.
The Supreme Court has stated that carrying can be banned in some "sensitive
places such as schools and government buildings," so any right to carry
would not be unlimited; but it would apply to carrying a gun in one's car,
on most streets, and the like. The court also leaves open the possibility
that the underlying right is just a right to some form of carry, so that a
state may choose whether to allow open carry or concealed carry (or both, of
course), but may not ban both and thus makes guns available to most citizens
for self-defense in public places.
It is of course quite possible that the case will be reheard en banc, which
is what happened with Peruta (where the panel decision came out in favor of
protecting a right to carry). But if the case isn't reheard en banc, or the
panel decision is affirmed on en banc rehearing, then the case may well go
up to the Supreme Court, since this decision reinforces a split among the
circuits on the subject.
UPDATE: Prof. Josh Blackman summarizes the decision in this Twitter thread.
Congratulations to Alan Beck and Stephen Stamboulieh, the winning lawyers in
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