Is California’s ‘open carry’ law next on the chopping block?

The Daily Journal
July 26, 2018

By: Ara Jabagchourian

In what appeared to be an effort to side-step around the issue in Peruta v. County of San Diego, 824 F.3d 919 (2016), by an en banc panel back in 2016, the 9th U.S. Circuit Court of Appeals just hit head-on the issue of “open carry” under the Second Amendment in the matter of Young v. Hawaii, 2018 DJDAR 7182 (July 24, 2018). Peruta held that the Second Amendment does not allow for members of the public to publicly carry firearms in a concealed fashion. However, Peruta explicitly left open whether the Second Amendment allows for members of the public to openly carry firearms in public.

Under Hawaii state law, to either be permitted to open or conceal carry, a person must apply for a license. The Hawaii statutes leave to the chief of police whether to grant such a request. The request must either demonstrate “reason to fear of injury” (conceal carry) or “urgency or the need” for the “protection of life and property” (open carry). Otherwise, firearms must remain in locked containers in public unless actually being used for hunting or target shooting.

George Young sought both a concealed carry and open carry permit for self-defense. Both applications were denied. Young filed a pro se action against the state of Hawaii and various public officials under 42 U.S.C. Section 1983, alleging the denial of the applications violated his Second Amendment right to carry a loaded firearm. The district court dismissed the action under both Federal Rule of Civil Procedure 12(b)(1) and (6).

The district court had two reasons for the dismissal. First, Hawaii’s statutory scheme related to the application process to carry firearms in public does not implicate the Second Amendment as that amendment “establishes only a narrow individual right to keep an operable handgun at home for self-defense.” Second, under intermediate scrutiny, the State has a “substantial interest in safeguarding the public from the inherent dangers of firearms.”

In a 2-1 decision, the 9th Circuit reversed the dismissals against the County of Hawaii. Writing for the majority, Circuit Judge Diarmuid O’Scannlain began the analysis with District of Columbia v. Heller and McDonald v. City of Chicago. Those two cases held that a complete ban on handguns in the home for self-defense violated the Second Amendment right to keep arms as handguns are “the quintessential self-defense weapon.” But neither of those cases addressed the issue of carrying such weapons outside the home.

In applying intermediate scrutiny to Hawaii’s statutes, the majority noted that the Second Amendment is not “a second-class right” or a “constitutional orphan.” First, the court looked to both the D.C. Circuit and 7th Circuit, which both held that the Second Amendment protects the general right to carry firearms in public for self-defense. The court also noted that the 2nd, 3rd and 4th Circuits have assumed the Second Amendment applies outside the home.

Just like the lower panel in Peruta, the majority focused on the Second Amendment’s text. The portion of the amendment it focused on was “the right of the people to keep and bear Arms, shall not be infringed.” The court sought to make a distinction between the words “keep” and “bear.”

In Heller, the court held that “bear” means “wear” or to “carry … upon the person or in the clothing in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” Since the Second Amendment protects both “bearing” as well as “keeping,” such text implies some level of public carry in case of confrontation. Further, Heller recognized the inherent right of self-defense as “most acute” at home, implying that the right exists, perhaps less, outside the home.
The Young court then launched into a multi-page analysis on how nineteenth century judicial interpretations viewed the right to bear arms, noting those decisions were closer in time to the promulgation of the Bill of Rights. The analysis looked to many state court decisions during that time period. Several found that restricting public carry of firearms would “import restraint on the right of the citizens to bear arms.” It may be worth to note that of the five states the majority looked to support its position, all of them were from southern states and all were decided before the Civil War.

The Young court then looked to five 19th century cases that found restrictions to bearing arms in public. The court noted some of these based their decision on the Second Amendment’s “militia” provision, and interpreting the amendment to have no application to an individual. After setting those cases to the side (as Heller held the Second Amendment is a right that applies to individuals), the majority only found two nineteenth century decisions that were not “militia-focused.” The court dismissed these decisions based on the specific language involved in the text being interpreted in those cases or the lack of actual analysis.

Ultimately, the court held that “the right to bear arms must guarantee some right to self-defense in public.” (Emphasis in the original.) Since the Hawaii statute restricts the appellant’s right to carry a firearm openly in public, it burdens conduct protected by the Second Amendment. Under intermediate scrutiny, the court looked to the “effect” Hawaii’s carry laws had on typical, law abiding citizens. Since Hawaii’s law on open carry only appears to grant licenses to “security guards,” the court held that the statute “amounts to a destruction” and “eviscerates” a core right under any standard of scrutiny.

The court did note that nothing prevents states from regulating the right to bear arms. However, the Second Amendment does protect a right to carry a firearm in public for self-defense.

Gov. Jerry Brown signed into law a ban on “open carry” in California. The questions are now what will happen to California’s open carry law, how will the 9th Circuit en banc handle Young, and whether a newly composed U.S. Supreme Court will have the final word.