By Nicholas Iovino
SAN FRANCISCO – The 9th Circuit ruled Tuesday that carrying guns in public is a constitutional right, a decision that could strike down gun laws in California and Hawaii and impact firearm restrictions across the country.
With one judge dissenting, two circuit judges concluded that Hawaii cannot deny permits to non-security guard civilians who want to carry guns in public.
“The court seems to say that generally speaking, the state has to provide some kind of carry,” said UCLA law professor Eugene Volokh in a phone interview.
Plaintiff George Young sued Hawaii in 2012 for denying his applications for permits to carry a concealed or openly visible handgun. A Hawaii state law requires a license to a carry a gun in public.
The police chief may only grant such licenses to those who need a gun for their job or those who show “reason to fear injury” to their “person or property.” No one other than a security guard has ever obtained an open-carry license in Hawaii, lawyers for the county of Hawaii acknowledged during oral arguments.
“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,” 9th Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, wrote for the majority in a 59-page opinion.
Joined by fellow Circuit Judge Sandra Ikuta, a George W. Bush appointee, O’Scannlain built on the 2008 Supreme Court decision in District of Columbia v. Heller, which established a constitutional right to own firearms for self-defense. Denying someone the right to carry a gun in public would interfere with that right, the majority concluded.
“This decision is expanding Heller to say not only do you have the right to have a gun in the home for self defense, you can also carry it anywhere you want,” Stanford University law professor John Donohue III said in a phone interview.
By ruling against state laws that ban carrying guns in public, the 9th Circuit joined two other circuit courts that have issued similar rulings: the D.C. Circuit and 7th Circuit. Meanwhile, the 2nd, 3rd and 4th Circuits have upheld state laws that restrict carrying guns in public.
That makes this dispute ripe for the Supreme Court, which has a solid conservative and presumably pro-gun majority, even as it awaits confirmation of Trump’s nominee to replace retiring Justice Anthony Kennedy.
The state of Hawaii would not say whether it plans to ask the full 9th Circuit to rehear the case en banc, but Donohue believes an en banc rehearing is likely. The Stanford law professor said even if the 9th Circuit overturns the panel’s decision, the Supreme Court is likely to come down on the side of gun rights advocates.
“This decision could be used by the [National Rifle Association] to strike down all of the important gun regulations in the U.S. if it’s read expansively,” Donohue said.
Alan Beck, a San Diego-based attorney who represented the plaintiff in this case, said he considers the panel’s decision a victory for the U.S. Constitution.
“I don’t think this law is even a close call,” Beck said. “Here, the state is effectively banning the exercise of the constitutional right to carry outside the home.”
But that interpretation of the Second Amendment is not accepted among all judges and legal scholars.
Donohue argues the purpose of the Second Amendment was to maintain a militia, not give individuals the right to carry guns in public. He said the Supreme Court created the individual right to own firearms by misinterpreting the Constitution in its 2008 Heller decision.
Circuit Judge Richard Clifton, a George W. Bush appointee, dissented from the majority on Tuesday. Clifton wrote that restrictions on carrying guns in public for “good cause” has existed in law for centuries, going back hundreds of years.
“Regulation of public carry has its roots in English law,” Clifton wrote. “Dating back to the thirteenth century, England regulated public carry of firearms, including both concealed and concealable weapons.”
California is one of five states that prohibits openly carrying guns in public. Florida, Illinois, New York, South Carolina and the District of Columbia also forbid openly carrying firearms.
Hawaii is one of 15 states that requires a permit or license to openly carry a gun in public, according to the Giffords Law Center, a non-profit organization that supports stricter gun control laws.
Adam Skaggs, chief counsel for the organization, criticized the panel’s decision on Tuesday, arguing that the majority “ignored the weight of historical evidence and Ninth Circuit precedent concluding that strong laws restricting the public carry of firearms are consistent with the Constitution.”
Hawaii Attorney General Russell Suzuki said the decision would “undermine Hawaii’s strong gun control laws and commitment to protect the public.”
Suzuki said it was consulting with the County of Hawaii’s counsel and considering further action.