The Volokh Conspiracy
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The en banc Ninth Circuit last week held that the Second Amendment does not extend to open public firearm carriage. The new in Young v. State of Hawaii complements the Circuit's en banc from five years earlier, Peruta v. San Diego, which held that concealed carry is outside the Second Amendment. According to the Ninth Circuit, carrying arms in public for defense is "not within the scope of the right protected by the Second Amendment."
By statute, Hawaii has a restrictive "may issue" carry licensing system. If an applicant proves "sufficient" "urgency or need," then a police chief "may" issue a permit. In practice, Hawaii is "never issue." Carry permits are issued to security guards for use while on duty, and never to private citizens.
George Mocsary (U. Wyoming Law) and I examine the decision in a new article, Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii. We argue that when the Ninth Circuit's sources are examined in detail, they support the conclusion opposite from the one reached by the court. While carrying defensive arms may be regulated, it may not be prohibited. Below are some arguments from the article.
Supreme Court opinions
Young avoids quoting the language from the Supreme Court's District of Columbia v. Heller that is directly on point:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis added).
The exceptions prove the rules stated in Heller: ordinary Americans (not just the militia) have Second Amendment rights, but felons and the mentally ill can be excluded from the right. Firearm commerce is necessary to the exercise of Second Amendment rights, but the government may impose conditions and qualifications on commercial vendors. As for carrying, "the full scope of the Second Amendment" includes "the carrying of firearms" in most places, but not "sensitive places."
Rather than addressing the above language, Young misleadingly says that Heller authorized "bans on possession in sensitive places." Heller's actual words about "carrying firearms" never appear in Young.
Young three times quotes the Supreme Court's 1897 Robertson v. Baldwin for the proposition that the Second Amendment right was "inherited from our English ancestors." Yet Young ignores what Robertson said about the scope of the Second Amendment right, on the same page from which Young quotes. According to Robertson, all rights have implicit limits derived from English law.
Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant's motion. . . .
The obvious implication an implicit Second Amendment exception that the right to keep and bear arms "is not infringed by laws prohibiting the carrying of concealed weapons" is that laws prohibiting open carry do infringe the right.
Also missing from Young is what the Supreme Court said about the right to carry in 1857's Dred Scott v. Sandford. Young cites Dred Scott while observing that the early Supreme Court rarely exercised its power of judicial review of federal statutes. Yet Young neglects to mention that one of Chief Justice Taney's reasons for holding that free blacks were not citizens was that if they were, they would have the right to "keep and carry arms wherever they went."
English legal history
Young's lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.
The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.
According to the Ninth Circuit, the 1615 King's Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public "notwithstanding he doth not break the peace." Justice Croke's seriatem opinion, however, reads
[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King's people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).
Justice Houghton's opinion adds that the sheriff may arrest someone, "upon suspition."
By omitting "in his presence," Young turns Chune's actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).
The leading case on the Statute of Northampton was Sir John Knight's Case, from 1686. Sir John Knight was a Protestant member of the Church of England and loved doing what he could to assist enforcement of the statutes that outlawed Catholic religious practice. After he helped break up a secret Catholic mass, some Catholics beat him up, and on other occasion assaulted a poor elderly woman who would not reveal Knight's location. For defense, Knight carried a blunderbuss when he went to Protestant church one Sunday. King James II was a Catholic, and he personally ordered the Attorney General to prosecute Knight for violating the Statute of Northampton.
As trial, the Chief Justice of the King's Bench observed that the Statute of Northampton had "almost gone in desuetudinem." Or in English, desuetude. That is, the law had long been unenforced and ignored–similar to the old laws in several states against certain sex acts that were discussed by the U.S. Supreme Court in Lawrence v. Texas; they were unenforced for so long that the Court found them legally unenforceable. The Chief Justice continued: "yet where the crime shall appear to be malo animo, it will come within the Act" Malo animo means "with evil intent; with malice." (Black's Law Dict. 2014).
The Ninth Circuit describes another statement by the Chief Justice, as if it contradicted what the Chief Justice said above: "According to another reporter, the Chief Justice of the King's Bench opined that the meaning of the Statute of Northampton was to punish those who go armed." On the cited page of English Reports:
The Chief Justice also said, the meaning of the statute of 2 Edw. 3, c. 3 [Northampton], was to punish people who go armed to terrify the King's subjects. It is likewise a great offence at the common law, as if the King were not able or willing to protect his subjects; and therefore this Act is but an affirmance of that law.
The Ninth Circuit said "go armed," but the King's Bench said "go armed to terrify the King's subjects." The jury acquitted Knight.
The case reports are plain, but the Young majority muddles them to reach the conclusion that the case provides no clear precedent: "We cannot resolve this dispute in the original sources, much less in the academic literature."
The Young majority speculates that Knight might have been "acquitted by virtue of his aristocratic status."For the possibility, Young cites a law review article claiming that aristocrats were "the one group expressly exempted from the Statute of Northampton." To see whether this is true, one need only read the Statute: "Item, it is enacted, that no man great nor small, of what condition soever he be, except the king's servants…" Aristocrats were expressly not exempted. Moreover, the case reports show that Knight's lawyer had argued, "This statute was made to prevent the people's being oppressed by great men; but this is a private matter, and not within the statute."
William Hawkins' 1714 A Treatise of the Pleas of the Crown was very influential on both sides of the Atlantic. The Young majority writes:
Hawkins, however, also recognized that the lawful public carry of arms required some particular need. The desire for proactive self-defense was not a good enough reason to go armed openly. "[A] man cannot excuse the wearing [of] such armour in public, by alleging that such a one threatened him, and [that] he wears it for the safety of his person from his assault."
But the Ninth Circuit omits what "such Armour" was. Hawkins was referring to the public carrying of "dangerous and unusual Weapons"—and not to common arms. (Heller adopted the common law rule against carrying "dangerous and unusual Weapons" and turned it into the principle that "dangerous and unusual weapons" are not protected by the Second Amendment. Under Heller, handguns are necessarily not considered "dangerous and unusual," because they are protected by the Second Amendment.)
Some American colonies and States enacted statutes or prosecuted common law offenses against "offensively" carrying arms "to the terror of the people." Young argues that these too were treated as comprehensive bans on carrying. To test whether this is true, consider the opinion in the leading early case on the subject, North Carolina's 1843 State v. Huntley.
According to Young, the Statute of Northampton was enacted verbatim by the North Carolina legislature in 1792. "Ironically, notwithstanding its recent independence, North Carolina did not even remove the references to the king," writes the Ninth Circuit. Young cites to "1792 N.C. Laws 60, 61 ch. 3." The lengthier cite would be François-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina 60–61 (1792). As the State of North Carolina later officially declared, the book "was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State." Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).
According to the Ninth Circuit:
In 1836, the North Carolina legislature explicitly repealed "all the statutes of England or Great Britain" in use in the state…which prompted a challenge to its Northampton analogue. The Supreme Court of North Carolina upheld the statute, however, finding that the Statute of Northampton did not create the substantive prohibitions therein. State v. Huntly, 25 N.C. 418, 420–21 (1843)….[T]he court concluded that the statute's prohibitions "[had] been always an offen[s]e at common law."
More precisely, the North Carolina Supreme Court said there was no "statute" to uphold. In the words of the Huntly court:
The [defendant's] argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2nd Edward the 3d, ch. 3d, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, (ch. 1st, sect. 2,) that the statutes of England or Great Britain shall cease to be of force and effect here.
The North Carolina court said that the Statute of Northampton was just an expression of a common law rule against "riding or going about armed with unusual and dangerous weapons, to the terror of the people."
According to the indictment—which Huntly had argued did not constitute a crime because the Statute of Northampton was not in effect in North Carolina—Huntley had armed himself "with pistols, guns, knives and other dangerous and unusual weapons, and, being so armed, did go forth and exhibit himself openly, both in the day time and in the night," to the citizens of Anson, N.C., in town and on the highway, and did "openly and publicly declare a purpose and intent" "to beat, wound, kill and murder" James H. Ratcliff "by which said arming, exposure, exhibition and declarations . . . divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State."
Huntly agreed with "the Chief Justice in Sir John Knight's case, that the statute of Northampton was made in affirmance of the common law." The Huntly court then delivered a detailed exposition of what exactly the common law offense was:
It has been remarked, that a double-barrelled gun, or any other gun, cannot in this country come under the description of "unusual weapons," for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an "unusual weapon," wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.–But although a gun is an "unusual weapon," it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement [a legal term of art for any lawful activity]–the citizen is at perfect liberty to carry his gun. It is the wicked purpose–and the mischievous result–which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.
Although the Huntly court did not like the idea of routine gun carrying, it recognized that peaceable carrying for any purpose was lawful. Despite devoting 60 pages to legal history and despite citing Huntly, the Ninth Circuit does not mention the above paragraph, which directly addresses the scope of the common law offense of carrying dangerous or unusual arms to the terror of the people.
The Ninth Circuit tells a long legal history built on inferences about what the Statute of Northampton must have meant in America. Yet the court omitted the paragraph from the state supreme court opinion that authoritatively describes what Northampton's principles actually did mean in America.
The majority in Young v. State of Hawaii claims that total prohibition of the right to bear a handgun is consistent with "overwhelming" American legal history. The claim is refuted by the very sources on which the majority relies, once their full text is brought to light.
This article is co-authored by George Mocsary, professor of law at the University of Wyoming College of Law.