Is the Right to Bear Arms Limited to Guns in Plain Sight?
The 9th Circuit has endorsed a distinction that does not jibe very well with modern attitudes.
It may seem obvious that the right to keep and bear arms extends beyond your front doorstep. But the Supreme Court has never directly addressed that question, and federal appeals courts have disagreed about the extent to which the Constitution allows states to restrict public possession of firearms. Yesterday a panel of the U.S. Court of Appeals for the 9th Circuit added to the confusion by ruling that "the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home."
The decision in Young v. Hawaii—which was written by Judge Diarmuid O'Scannlain and joined by Judge Sandra Ikuta, with a dissent by Judge Richard Clifton—was especially striking because the full appeals court concluded in 2016 that "the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public." Taken together, the two decisions imply that it is constitutional for states or cities to ban concealed carry but unconstitutional for them to ban open carry. That distinction is consistent with the views of 19th-century legislators and judges but does not jibe very well with contemporary intuitions about which kind of arms bearing is more threatening.
Young is a challenge to Hawaii's highly restrictive rules for carrying guns in public, which amount to a prohibition for all but a select few. Generally speaking, Hawaii requires that guns be kept at their owners' residences or businesses. Concealed carry is allowed in "an exceptional case" when the local police chief determines that an applicant has shown "reason to fear injury to the applicant's person or property." Such exceptional cases are quite rare. Hawaii County, one of the defendants in Young, has never issued a concealed carry permit, while other Hawaii counties "appear to have issued only four concealed carry licenses in the past eighteen years," according to a footnote in the 9th Circuit's ruling. Permits to openly carry firearms, notionally allowed "where the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property," are nearly as difficult to obtain, in practice limited to security guards and people in similar occupations.
The plaintiff, George Young, unsuccessfully sought a carry permit from Hawaii County on two occasions in 2011. Young filed a federal lawsuit, arguing that the state's requirements for a carry permit violated his Second Amendment rights. U.S. District Judge Helen Gillmor disagreed, ruling that Hawaii's prohibitive law "does not implicate activity protected by the Second Amendment," which "establishes only a narrow individual right to keep an operable handgun at home for self-defense." Young appealed to the 9th Circuit, which had already rejected a constitutional right to concealed carry but had explicitly left the issue of open carry unaddressed.
The distinction between open and concealed carry is based on the Supreme Court's observation, in the landmark Second Amendment case District of Columbia v. Heller, that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." But by and large, as Judge O'Scannlain points out, those courts did not say such laws were constitutional because the Second Amendment has nothing to do with carrying guns in public. Rather, they ruled that legislators had the authority to ban a form of public carry that was perceived as especially threatening
In 1840, for instance, the Alabama Supreme Court upheld a restriction on "the evil practice of carrying weapons secretly," while making it clear that a comprehensive ban on public carry would be unconstitutional. The Georgia Supreme Court took the same position six years later. "So far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly," the court said, "it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But …so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void."
Several years later, the Louisiana Supreme Court upheld that state's ban on concealed carry, saying the law was "absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons." The court noted that the law "interfered with no man's right to carry arms…'in full open view,' which places men upon an equality. This is the right guaranteed by the Constitution of the United States."
Nowadays, I suspect, the attitudes reflected in these decisions and in the laws they upheld, based on the assumption that people carrying hidden weapons were up to no good, are more or less reversed, at least as far as the general public is concerned. While many people are alarmed by the sight of an ordinary citizen openly carrying a gun, concealed carry is discreet by definition and generates less concern. Yet judging from state laws, legislators continue to view concealed carry as more problematic than open carry. While 31 states allow people to openly carry handguns without a permit (in some cases only if the weapon is unloaded), only a dozen or so allow concealed carry without a permit.
Taking a broader view, all but nine states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island) allow lab-abiding members of the general public to carry firearms for self-defense, either without a permit or with one that can be obtained by meeting a short list of objective criteria. Young implies that limiting that right to a favored few, as the states with discretionary carry permit policies do, cannot be reconciled with the Second Amendment. "The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense," O'Scannlain writes.
In reaching that conclusion, O'Scannlain starts with the language of the amendment itself (citations omitted):
The fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. A right to "keep" arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to "keep" arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. The addition of a separate right to "bear" arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. Understanding "bear" to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between "keep" and "bear" to avoid rendering the latter guarantee as mere surplusage.
O'Scannlain considers discussions of the right to keep and bear arms in the late 18th century, in the run-up to the Civil War, and during Reconstruction, which contradict Judge Gillmor's assumption that the Second Amendment protects nothing but "a narrow individual right to keep an operable handgun at home for self-defense." To pick one particularly telling example, Chief Justice Roger Taney, in the shameful 1856 case Dred Scott v. Sandford, recoiled at the idea that black men were entitled to "the privileges and immunities of citizens," which among other things would mean they had the "full liberty" to "keep and carry arms wherever they went." Coming at the issue from the opposite direction, an 1866 report from the Freedmen's Bureau described a Kentucky law that prohibited former slaves from carrying guns, complaining that "the right of the people to keep and bear arms as provided in the Constitution is infringed" by such restrictions.
O'Scannlain notes that Heller also implies a right to keep and bear arms that extends beyond the home (citations omitted):
Heller described the "inherent right of self-defense" as "most acute" within the home, implying that the right exists, perhaps less acutely, outside the home….Heller also identified "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as presumptively lawful. Why bother clarifying the definition of sensitive public places if the Second Amendment did not apply, at all, to any public place?
Once Anthony Kennedy is replaced by a justice who is more inclined to hear Second Amendment cases, there's a good chance the Supreme Court will make those implications explicit, and this case could provide a vehicle to do so. If Young "isn't reheard en banc, or the panel decision is affirmed on en banc rehearing," Eugene Volokh observed yesterday, "then the case may well go up to the Supreme Court, since this decision reinforces a split among the circuits on the subject."