The Volokh Conspiracy

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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).


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 the case.