The Volokh Conspiracy
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Today a 2-1 Ninth Circuit panel held that Hawaii's near-total prohibition on the carrying of handguns for lawful self-defense violates the Second Amendment right to bear arms. Under binding precedent from a previous case, Peruta v. San Diego (Peruta II), concealed carry is not a Second Amendment right. However, Hawaii requires a license for either concealed or open carry, and almost never issues licenses for either. Under today's ruling, Hawaii may not limit open carry licenses only to persons who are security guards. The opinion is here.
Background: Hawaii's restrictions on firearms carry are perhaps the most extreme of any state. Carrying or transporting a loaded firearm outside of one's property is generally forbidden. Unloaded and cased firearms may be transported while going to or from a gunsmith, a hunting ground, and a few other places. Carrying a loaded handgun in public, either openly or concealed, requires a permit. Concealed carry permits are close to nil (4 permits issued in the last 18 years), and only a few dozen open carry permits exist, and they are only for security guards while on the job.
After being denied a permit, George K. Young, Jr., brought a lawsuit in the federal district court for the district of Hawaii. His attorneys included Stefan Stamboulieh, whom I had the pleasure of meeting over a decade ago, when he invited me give a speech to the Federalist Society at the Mississippi College of Law.
The district court granted the defendants' motion to dismiss, and Young appealed. For procedural reasons, defendant State of Hawaii was out of the case by the appellate stage, but the County of Hawaii (the Big Island) remained as a defendant. The State nevertheless filed an amicus brief.
The majority opinion for the Ninth Circuit was written by Judge Diarmuid O'Scannlain (appointed 1986 by President Reagan) and joined by Judge Sandra S. Ikuta (appointed 2006 by President G.W. Bush). A dissent was filed by Judge Richard Clifton (appointed 2001 by President G.W. Bush, now on senior status).
Precedents: An en banc panel of the Ninth Circuit had previously ruled that the Second Amendment does not protect any right to concealed carry. Peruta v. County of San Diego (Peruta II), 824 F.3d 919 (2016) (en banc). But this did not foreclose Young's challenge to Hawaii's open carry laws, since open carry is a matter of first impression in the Ninth Circuit.
As explicated by the Supreme Court cases District of Columbia v. Heller and McDonald v. City of Chicago, the textual right to "keep" arms is distinct from the right to "bear" arms. The latter includes the right to bear arms for self-defense outside the home, but (as Heller said and McDonald reaffirmed), the exercise of the right may be excluded from "sensitive places, such as schools and government buildings." In Young, the state's "brief asks us to stretch this list of presumptively lawful measures to allow all laws 'preserving public safety.' This argument borders on the absurd. Surely not all areas of the public are as sensitive as schools or government buildings, nor is it, as the State suggests, a 'very small and reasonable step to view virtually the entire public sphere as a 'sensitive place.""
Early history: Expressly following the methodology used by the Supreme Court in Heller and McDonald, the Young court carefully examined history and tradition. Early sources such as Blackstone considered the right to bear arms for self-defense to be a natural right. So did the first major American treatise on constitutional law, St. George Tucker's 1803 annotated American edition of Blackstone. The Heller Court relied heavily on Tucker, and so did the Ninth Circuit: "And in advocating for the prerogative of the Judiciary to strike down unconstitutional statutes, Tucker wrote: 'If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, . . . would be able to pronounce decidedly upon the constitutionality of these means.' see also Michael P. O'Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of "Bearing Arms" for Self-Defense, 61 Am. U. L. Rev. 585, 637–38 (2012)." [Prof. O'Shea is one of my co-authors on the law school textbook Firearms Law and the Second Amendment.]
Also included in the natural rights discussion is Leonard W. Levy's Origins of the Bill of Rights (quoting a prominent colonial newspaper on the right to arms as "a natural right") and my article The Natural Right of Self-Defense: Heller's Lesson for the World, 59 Syracuse L. Rev. 235 (2008), which closely examines the natural rights language in Heller and explores its implications. (The article has previously been cited in Seventh and Tenth Circuit opinions.)
Nineteenth Century cases: Like Heller, the Ninth Circuit studied nineteenth century cases on the right to arms, especially cases from before the Civil War. The large majority of the cases–including the cases that Heller said were correct explications of the right–held that there is not a right to carry concealed, and there is a right to open carry. During the nineteenth century, the South was the region the most enthusiastic about gun control, and some Southern controls were based on racial animus.
Adopting a theory propounded by historian Saul Cornell,
The dissent faults our reliance on decisions from the South, implying that the thorough analysis found in such opinions must have been the product of a "culture where slavery, honor, violence, and the public carrying of weapons were intertwined."… To say the least, we are puzzled. The dissent overlooks the fact that the Southern cases on which we rely only arose because the legislatures in those states had enacted restrictions on the public carry of firearms. Indeed, were it the case that the Southern culture of slavery animated concerns to protect the right to open carry, why would the Georgia legislature have sought to ban open carry in the first place?
As a more fundamental matter, too, we cannot agree with the dissent's choice to cast aside Southern cases. Heller placed great emphasis on cases from the South, and Nunn in particular. [An 1846 Georgia case striking a ban on most handguns, striking a ban on open carry, and upholding a ban on concealed carry; Heller quotes and lauds Nunn more than any other case.] We are an inferior court. Can we really, while keeping a straight face, now say that such cases have little persuasive effect in analyzing the contours of the Second Amendment? We think not.
As the Young majority acknowledges, a minority of nineteenth century cases did deny that there is right to defensive carry; these cases start with Arkansas's 1842 State v. Buzzard. These cases are explicitly based on the assumption that the right to keep and bear arms is solely to foster the militia. "Yet, with Heller on the books, cases in Buzzard's flock furnish us with little instructive value. That's because Heller made clear that the Second Amendment is, and always has been, an individual right centered on self-defense; it has never been a right only to be exercised in connection with a militia….And bound as the inferior court that we are, we may only assess whether the right to bear arms extends outside the home on the understanding that the right is an individual one centered on self-defense. Thus, Heller knocks out the load-bearing bricks in the foundation of cases like Buzzard, for those courts only approved broad limitations on the public carry of weapons because such limitations in no way detracted from the common defense of the state."
Surety of the peace statutes: An 1830s Massachusetts statute provided a model adopted by several other states. According to the statute, if person A provided well-founded evidence to a court that person B threatened "injury or a breach of the peace," then the court could issue an order presenting B with two choices: 1. Stop carrying arms in public, or 2. If you want to continue carrying arms, then you must post a bond for good behavior ("surety of the peace"). Despite the court order, person B could continue carrying arms, without need for posting a bond, under two circumstances: 1. militia service, or 2. if B had "good cause" to fear for his safety.
Prof. Cornell and the dissent characterize these statutes as broad bans on public carrying. This is contrary to the text. The statutes only applied to persons who were identified in court by specific evidence as being particularly dangerous. Even then, they could still carry if they posted a bond. Presuming that Cornell's mischaracterization of the statute was made in good faith, his error shows the limits of historians attempting to opine on legal history, yet unable to understand a straightforward statute.
Early English history and its influence in America: In 1328, English King Edward II created the Statute of Northampton, which forbade subjects "to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere." There was an exception for the king's servants. It is possible to read the statute as a comprehensive ban on carry. The dissent adopts the argument of scholar Patrick J. Charles, who contends that the Statute of Northampton was part of the common law and was adopted in America, and therefore there is no right to carry arms.
A problem with this argument is that it was not interpreted in England as a carry ban–at least not by the time the American colonies were on the scene. William Hawkins' 1716 treatise explained that "no wearing of Arms is within the meaning of this Statute, unless it be accompanied with such Circumstances as are apt to terrify the People." (Hawkins, by the way, is the main source for Heller's statement that "dangerous and unusual" weapons are not within the protection of the right to arms.)
Hawkins' view is consistent with the result of a famous trial from 1686, Sir John Knight's Case. The Chief Justice of the King's Bench explained that the Statute of Northampton only applies to "people who go armed to terrify the King's subjects." Knight, who was a political opponent of King James II, had carried a blunderbuss to church because some Irish Catholics had made credible threats to assassinate him. (King James II was pro-Catholic, while Knight was an enthusiast for persecution of Catholics.) As one observer of the trial recounted, the jury acquitted Knight "not thinking he did it with any ill design." (For more on the Statute of Northampton and Knight's Case see my 2015 post, my D.C. Circuit amicus brief, and pages 91-101 of Firearms Law and the Second Amendment.)
"More fundamentally," wrote the Young majority, "we respectfully decline the County's and the State's invitation to import English law wholesale into our Second Amendment jurisprudence….Indeed, there is a scholarly consensus that the 1689 English right to have arms was less protective than its American counterpart." For example, at St. George Tucker noted, English law defined as "treason" any gathering of a certain number of armed men without prior government approval, but such gatherings were a protected right under the American Constitution.
Early American commentators interpreted common law limits on arms carrying as only applying to persons who carried "offensively" or in a "terrifying" manner or who carried "dangerous and unusual" weapons. The 1843 North Carolina State v. Huntley explained "the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement–the citizen is at perfect liberty to carry his gun. It is the wicked purpose—and the mischievous result—which essentially constitute the crime." [The phrase "business or amusement" was a legal term of art, to encompass all peaceable activity. See, e.g., The Schooner Exchange v. Mcfaddon & Others, 11 U.S. 116 (1812) (Marshall, C.J.) ("[T]he ports of a nation are open to the private and public ships of a friendly power, whose subjects have also liberty without special license, to enter the country for business or amusement. . . .").]
According to Cornell, Charles, and the Young dissent, all carrying (except when mandated by the government) was considered inherently "terrifying." The majority answers:
What an odd way it would be to write a criminal statute!….For instance, Maine's 1821 Northampton analogue authorized the arrest of "all affrayers, rioters, disturbers or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this State, or such others as may utter any menaces or threatening speeches." 1821 Me. Laws 285. If riding armed were itself unlawful because it terrorized the good citizens of Maine, it strains credulity to suggest that Maine drafters would have felt the need to clarify such reasoning right in the middle of the statute's operative provisions. Indeed, why only clarify the consequences of riding armed, and no other prohibited conduct?
The "odd" reading of early American state statutes would conflict with "neighboring criminal provisions." For example, Delaware allowed a slave to "go armed with any dangerous weapon" if the master gave permission. Yet by the Cornell et al. theory, nobody in Delaware could carry any weapon, except when mandated by government. Likewise, Tennessee authorized sheriffs to arrest anyone "armed with the intention of committing a riot or affray." But according to Cornell, carrying an arm at all was a serious crime. So why limit arrest powers only to "riot and affray"? "Why on earth would Tennessee have so limited a sheriff's authorization to arrest if going armed was itself unlawful?"
In all, then, the various Northampton analogues found in states across the United States confirm that, "whatever Northampton banned on the shores of England," the American right to carry common weapons openly for self-defense "was not hemmed in by longstanding bans on carrying." Wrenn, 864 F.3d at 660–61. [Upholding right to bear arms in District of Columbia.]
Standard of review: Because text, history, and tradition show that peaceable carrying of common arms is part of the Second Amendment, the next question was the standard of judicial review. Bearing arms is part of the core of the Second Amendment. "While the Amendment's guarantee of a right to 'keep' arms effectuates the core purpose of self-defense within the home, the separate right to 'bear' arms protects that core purpose outside the home."
Under Ninth Circuit precedent, "We next ask whether section 134-9 [open carry permits issued only to security professionals] 'amounts to a destruction' of the core Second Amendment right to carry a firearm openly for self-defense. Silvester, 843 F.3d at 821. If so, the law is 'unconstitutional under any level of scrutiny.'" [Silvester upheld California's 10-day waiting period for firearms sales or loans.]
As counsel for Hawaii County had admitted at oral argument, "no one other than a security guard–or someone similarly employed–had ever been issued an open carry license." Thus:
Restrictions challenged under the Second Amendment must be analyzed with regard to their effect on the typical, law-abiding citizen….An individual right that does not apply to the ordinary citizen would be a contradiction in terms….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. 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."
Result: The Hawaii portion of the statute limiting open carry to security professionals is unconstitutional. The decision below was reversed and remanded. Notably, the plaintiffs did not challenge a separate requirement in Hawaii: that carry permits be issued only "Where the urgency or the need has been sufficiently indicated." With no information in the record "showing the stringency of the requirement," the court did not address "whether such requirement violates the Second Amendment."
Next steps: Hawaii County could issue Mr. Young an open carry permit and end the case. But then the County might then have to start issuing permits to other applicants who are equally qualified. Instead, Hawaii County could deny the permit on the grounds that Mr. Young has not demonstrated sufficient "need." The denial would probably start a new case, on the permissible stringency of Hawaii's definition of "need."
Or the County could appeal to the entire Ninth Circuit for rehearing en banc. In recent years, the Ninth Circuit en banc has been willing to overturn pro-Second Amendment decisions issued by three-judge panels. In particular, Peruta II (upholding sheriffs' policy of issuing concealed carry persons only to persons subject to specific threats) and Teixeira v. County of Alameda (upholding county's ban on all new gun stores).