Young v. State of Hawaii

Ninth Circuit holds there is no right to bear arms outside the home

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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).

Blunderbuss pistol, similar to the gun in Sir John Knight's Case.

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.

NEXT: Classes #19: Free Exercise of Religion V and Marital Property I

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  1. Going by Kavanaugh’s “text and tradition” standard handguns can be regulated so strictly outside the home that it would render the right meaningless…but the right to open carry a handgun outside the home would still exist because at the very least one has to bring a handgun home from a gun store or take it to a gun range. So the 2A grants a right to open carry…but that right can be regulated very liberally.

    1. Sebastian Cremmington – That isn’t Justice Kavanaugh’s “text and tradition” methodology. Justice Kavanaugh has said that according to District of Columbia v. Heller, which used a “text, history, and tradition” methodology, concealed carry is not a right.

      1. Well, it isn’t. “Carry” is a right, not concealed carry.

        1. Brett Bellmore – File your own lawsuit and then explain why Justice Kavanaugh in addition to all nine justices from District of Columbia are wrong about concealed carry not being a right.

  2. Great article.

    What a shameful opinion by Judge Bybee!

    Is there a procedure to legally sanction such misrepresentation of the sources? This is Michael Moore stuff.

  3. I’m going to draw a parallel between liberal lower courts’ decisions on issues like abortion and the 9th Circuit’s decisions here. Or conservative courts’ qualified immunity cases. All apply Supreme Court precedent, but give it the narrowest possible interpretation. If the Supreme Court didn’t specifically say it was included, it wasn’t included.

    This is what the 9th circuit did here. Heller by its terms only covered possession of a gun in the home. This case is outside that scope. Hence the result.

    Courts and judges of every stripe do this on some issues or other. They do it when the Supreme Court goes in a direction they wish it hadn’t gone. Moreover, the philosophy of limited federal intrusion on states says that state laws are presumed constitutional until proven unconstitutional. Judges often apply this inconsistently, but they do apply it.

    This is such a broad phenomenon among judges across the ideological spectrum that I’m not sure the 9th Circuit should be singled out for doing in gun legislation cases exactly what (say) the 5th Circuit routinely does in abortion or qualified immunity cases, and pretty much every judge does on some kimd of cases or other.

    1. A big problem the 9th Circuit has with respect to the 2A is that in the late 1960s the Black Panthers started open carrying and then governor Reagan peed his panties and banned open carry. So the 9th Circuit would have to come to terms with the fact a lot of gun regulations are RAAAAACIST!!!

      NO JUSTICE!
      NO PEACE!

      REPARATIONS!!

    2. ReaderY – You said, “Heller by its terms only covered possession of a gun in the home. ” Read the opening paragraphs of the Heller decision. It was illegal to possess a handgun in the home (for most people) and it was illegal to carry any loaded firearm in the home for the core lawful purpose of self-defense.

      The scope of the Complaint and the challenged laws were not limited to the inside of one’s home. The D.C. bans held to be unconstitutional by the court of appeals and SCOTUS applied to both residential and commercial property.

      In oral argument, Chief Justice Roberts dismissed the tiers of scrutiny as accumulated baggage. He said the correct methodology was to define the Second Amendment right and then apply that right to the challenged laws.

      Which is what the Heller decision did.

    3. A major distinction between Second Amendment rights and abortion or qualified immunity is that the former are laid out in the Constitution, and the latter are typically laid out by judges based on penumbras and emanations. This kind of disregard is much more shocking for such a core civil right.

    4. ReaderY, I fully agree that the trend of lower courts giving SCOTUS precedent they dislike the “narrowest possible interpretation” is one that crosses ideological/political lines and can be seen in the decisions of both ‘liberal’ and ‘conservative’ judges. Prof. Richard Re wrote a great article on this a few years ago in the Georgetown Law Journal titled “Narrowing Supreme Court Precedent from Below”. It’s a great read and I’d recommend checking it out if you’re interested in reading more on the subject.

    5. If the right to keep and bear arms doesn’t extend outside one’s home, then please explain the Per Curiam decision in Caetano v. Massachusetts, 577 U.S. ___ (2016).

  4. The en banc opinion in Young v. Hawaii limited the scope of its opinion to “small arms capable of being concealed.” The opinion does not define “small arms” or “capable of being concealed.” Did the opinion limit its scope to arms that are easily and ordinarily carried concealed? Whether or not there is a right to openly carry any loaded firearm, or any unloaded firearm for the purpose of lawful self-defense is the question my three-judge panel will have to decide. Judge Bybee is one of those three judges.

    “The contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly. We need go no further than this, because the Hawai‘i firearms licensing scheme Young challenges only applies to “a pistol or revolver and ammunition therefor.”” Young v. Hawaii en banc Slip Opinion page 97.

    The moment the Mandate is issued in Young v. Hawaii, my appeal is once again under submission for a decision. There could be an opinion in my appeal issued the very same day.

    For a decade I have been criticizing the lawsuits that limited the scope of their challenge to handguns, in particular, the concealed carry of handguns or permits that would allow one to carry a handgun concealed.

    One of the reasons I have given is that there is a long history, both in the United States and in England, to prohibitions on not just concealed carry but to the possession and carrying of concealable weapons.

    As I pointed out in the oral argument to my appeal, Charles Nichols v. Gavin Newsom, et al., some states treated handguns that are easily and ordinarily carried concealed as dangerous and unusual weapons, and that my lawsuit is not limited to handguns, I seek to openly carry long guns as well.

    Moreover, California law prevents those of us who live in incorporated cities from carrying any loaded firearm, and any modern unloaded firearm, in the curtilage of our homes and on our private residential property.

    The Young v. Hawaii en banc opinion limited the scope of its opinion to “small arms capable of being concealed.”

    I have mentioned in the past that Young could lose and I could still win for the reasons I gave above and in my lawsuit. Now we will have to wait for a decision in my appeal to see whether or not there is a Second Amendment right, or a substantive due process right independent of the Second Amendment, to openly carry any loaded firearm or any modern unloaded firearm outside the interior of our home.

    If there is a right then I win because the government is not allowed to ban a right simply because the law also bans something which is not a right.

    This en banc decision in Young v. Hawaii has created an intractable split with the 7th circuit court of appeals and the District of Columbia circuit court of appeals. It has also created a split with every Federal Circuit Court of Appeals because those circuits have either held or assumed that the right to keep and bear arms extends outside of our homes.

    The majority of the judges in this 7-4 decision have held that there is no right to the carrying of concealable weapons, regardless of whether or not they are carried openly or concealed, outside of our home. That is a unique view not shared by any other Federal circuit or state court of last resort that I am aware of. Ig any Federal circuit court of appeals or state court of last resort has so held, the citations in those cases do not appear in the en banc opinion.

    The Young v. Hawaii en banc decision means that the Flanagan v. Becerra appeal loses, and loses even if one were to construe it as a “carry” lawsuit because the NRA/CRPA’s Flanagan lawsuit is limited to concealable firearms, and the plaintiffs do not have standing to challenge California’s Open Carry bans even if they had claimed that California’s Open Carry bans are unconstitutional (they didn’t).

    None of the plaintiffs articulated any plan, let alone a concrete plan, to violate California’s Open Carry bans. All but one of the natural-born plaintiffs disavowed any intention or desire to openly carry a firearm, anywhere. Nowhere in the record will you find that the Flanagan plaintiffs claim that they were prohibited under California law from carrying a loaded or unloaded firearm in the curtilage of their home or on their private residential property.

    I do not know what Mr. Young’s attorneys will do next. Their options are to file a petition for a Full Court rehearing or to file a cert petition with the United States Supreme Court. The press has quoted Young’s attorney, Alan Beck, as saying he is going to file a cert petition. I emailed both of Mr. Young’s attorneys suggesting that they file a Full Court petition but if they don’t, I asked them to file a motion to stay the Mandate pending cert. Neither of them responded to my emails.

    1. Seems to me a rehearing before the 9th would be a waste of time considering the majority opinion so obviously ignored its own historical evidence. The case you cite from the 7th sets up an argument for a cert. petition to SCOTUS, IMO.

      1. Michael D – If a petiton for rehearing en banc is granted in Charles Nichols v. Gavin Newsom et al. then the ten judges selected for my en banc panel will be drawn from a very different pool of judges than the 10 judges selected for the Young v. Hawaii en banc panel. My en banc panel is not bound by the Young v. Hawaii en banc panel.

        Even if the petition is denied, filing a petition gives every active judge in the 9th circuit to file a dissent to the denial of the en banc petition and every senior 9th circuit court of appeals judge to file a statement regarding the denial of the petition for rehearing en banc.

  5. Thank you for the well reasoned post. The gun grabbers will continue making dishonest arguments until their lies are fully exposed.

    “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.”

    Do the justices consider self defense to be a wicked purpose?
    Do Patrick Charles and like minded historians consider self defense to be a wicked purpose?

  6. 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…”

    Two points:

    1. For the sake of argument, allowing Kopel’s misguided inclination to practice history using the text of laws as accurate guides to what actually happened, you still have to know enough history to understand the text you are reading. The place and period in question is England in the 1680s. I don’t know much about it. I doubt Kopel does either. I know more about England under Charles I, who reigned earlier, until executed in 1649. Under Charles I, the term, “the king’s servants,” was applied to pretty much every member of the nobility who was not an active opponent of the king. The notion then was that the nobility ran Britain in service to the king. It would not be surprising to discover that later periods of authoritarian rule—including in the American colonies—were heirs to that tradition, and observed similar customs as a matter of cultural heritage. There is plenty of evidence in the historical record of America to support that inference for the 18th century in the American South.

    2. No. To see what was historically true, one does not, “need only read the Statute.” Among professional historians, that assumption gets called out as a commonplace amateur error. Very often, then and now, statutes are honored only in the breach, or enforced unevenly, or enforced systematically in ways which actually contradict their text. That, of course, is an inconvenience for “originalist” textualism, but there is no need to make the larger point to understand Kopel’s interpretation is historically naive.

    1. “Very often, then and now, statutes are honored only in the breach, or enforced unevenly, or enforced systematically in ways which actually contradict their text. That, of course, is an inconvenience for “originalist” textualism”

      Not a bit. Originalists are perfectly capable of understanding that government is capable of corruptly acting illegally, the courts capable of rationalizing permitting it. That the Alien and Sedition acts don’t define the meaning of the 1st amendment, Jim Crow doesn’t demonstrate the meaning of the 14th amendment.

      That the violations don’t define the rule.

      1. Originalists are not consistent on this. For instance, a lot of pro-life originalist types love to cite the number of states with abortion bans at the time the 14th Amendment was adopted, but make no effort to determine if such bans were enforced.

  7. Why should the 9th circuit care about following Heller, if the Supreme court doesn’t care enough to grant cert to gun cases? Anti-gun judges have concluded that there isn’t the will at the Supreme court to enforce Heller, and can you say they’re wrong?

    1. To be fair, there hasn’t been any cert requests since Barrett was seated. The thoroughly despicable Roberts is now a minority.

      I think the actual conservatives, Thomas, Alito, and Gorsuch have had enough of this. Barrett, by her record, wouldn’t have tolerated it in the first place. I think the days of letting it “percolate” in the lower courts is over, and I suspect now is the time that Thomas will hold the others’ feet to the fire.

  8. And of course Blackstone suggested that the possession of arms was part and parcel of one’s enjoyment of liberty, property, hearth, because one has a right to protect those values.

    I consider Heller’s suggestion that certain regulations, especially about felons, still exist to be a puckish tweak by Justice Scalia to see if people were paying attention – the time frame of his utterances were as of the time of the framing, and there were no regulations regarding common felons or other groups!

    1. Scalia was an inconsistent originalist, as he’d often tell people. This shows in Heller.

      While he wasn’t up for totally erasing the right, as the minority wanted to, neither was he up for upholding its original meaning: A right to own and practice with the same arms the military are equipped with.

      So he settled for constructing a non-threatening version of the 2nd amendment, and upholding that, instead.

      That this required some falsification and willful misinterpretation of history, (Though not remotely to the extent Stephens was guilty of.) was not something that seemed to trouble him much.

      1. Scalia also didn’t actually know anything about guns. I watched him speak once, and he said, when questioned about the idea that what is in “common use” has been affected by the last 100 years of laws, he said something like “I don’t know whether machine guns would be more common, as I don’t know enough about the history.” The questioner responded with something like “Justice, did you know that what separates a full-auto M4 from a civilian semi-auto variant is a $10 piece?”

        He said “No, I did not know that.”

        1. That gun laws are crafted by people utterly ignorant of them is always a bit disconcerting.

  9. So the US Constitution is unconstitutional?
    Well, we got there before I died.
    Sad.

  10. In general, I am willing to support far more gun regulation than most of the commenters here, but what is essentially a flat ban on carry is a bridge too far for me. I agree that this statute is unconstitutional.

    Now the question is whether there will be four votes to grant cert. I wouldn’t bet the rent one way or the other on that question.

    1. That’s how the game is played these days Krychek.

      A series of laws which look reasonable on the surface, but dig in, and it’s a de facto ban. A ban for the “wrong” people.

      Ban concealed carry…and then ban open carry. De facto ban.

      Require any ammunition bought have a new “safety feature”. Safety feature doesn’t actually exist? Oh well…can’t by any ammunition.

      Want a concealed carry permit for your security guard? Gotta know the right people…or issue the right “donations” in some states.

      Have gun control laws…but don’t enforce them against certain “selected” people.

      1. But that assumes that the only possibilities are no regulation at all or complete bans. It’s possible to say that Regulation A is legitimate but Regulation B is not. The job of legislatures is to draw lines. And the job of courts is to decide which lines were drawn in unconstitutional places. So what I’m really advocating is that both branches do their jobs: The legislature needs to draw reasonable lines, and the courts need to strike down unreasonable lines.

        Under your argument, we can’t have speed limits because environmental radicals who hate cars will use them as the first step to eventually ban cars.

        1. No, it doesn’t. It looks at two points.

          1. Any new regulations need to be looked at very skeptically in the context of current regulations (which are sufficient), especially for interactions which are de facto bans.

          2. Any current regulations need to be examined very carefully for uneven or rare enforcement, in such a manner, that it doesn’t actually serve it’s intended purpose. Instead the regulation is being used as a means of selective power enforcement.

          1. Reasonable minds can certainly disagree that current regulations are sufficient, especially when we have 15,000 or so gun deaths annually in the United States. And as with other regulations, selective enforcement does need to be looked at, but there’s nothing special in that regard with respect to gun regulations.

            1. “selective enforcement does need to be looked at, but there’s nothing special in that regard with respect to gun regulations.”

              Unfortunately, what you’re talking about are constitutional rights. Like voting and speech, selective enforcement in regards to gun restrictions IS special.

              Moreover, if you’re worried about the current number of victims, enforcement of current law should be paramount. If you’re not equally enforcing current law, but instead want new restrictions, all you’re doing is making sure the law-abiding people are further restricted…while those who just ignore the law (and are more likely to commit crimes) get away with it.

              1. And you think there isn’t selective enforcement with respect to voting and speech?

                Maybe we should make buying a gun like voting in Georgia: You can only do it one day out of the year and you have to stand in line for nine hours, plus it’s illegal for anyone to bring you food and water.

                1. “Maybe we should make buying a gun like voting in Georgia: You can only do it one day out of the year and you have to stand in line for nine hours, plus it’s illegal for anyone to bring you food and water.”

                  Do you want to make it like Georgia IS or how your idiotically think Georgia’s law is?

                  I’d kill to see gun regulations as lenient as voting regulations.

                  1. “I’d kill to see gun regulations as lenient as voting regulations.”

                    No thanks. If the state mailed me a gun a couple of times a year like they do ballots, the safe wouldn’t be able to hold them all.

            2. How many of those gun deaths are suicides?

              Can you explain why there should be far more regulations on one Constitutional right over others?

          2. I count at least 4 lines being drawn in this post.

          3. Also, Armchair Lawyer, does it occur to you that your side is just as much engaging in gamesmanship as the pro regulation side? You don’t want any regulations, so any regulation that gets proposed is dismissed as a slippery slope toward confiscation. That therefore makes it difficult when not impossible to have a conversation about whether a proposed regulation is actually a good idea or not.

            1. No. What reasonable people can differ on is whether, for instance, states can require permits to carry, whether those permits must require live fire (some states do, some don’t), whether they should be renewed every 3 years or every 5 years, and so forth.

              Requiring a “special need” that is never granted in practice is not a reasonable line, and no one advocating for it is acting in good faith.

              1. On that specific regulation, I agree with you. That doesn’t mean that there’s no such thing as reasonable gun regulation.

                1. Do we ever punish people who violate gun laws?

                  I mean, the son of the current President is known to have lied on a form to get a gun? Shouldn’t there be punishment for that?

            2. “You don’t want any regulations”

              You keep saying this and it is inaccurate.

      2. Politicians and rich connected people will always be guarded and protected by PLENTY of firearms. It’s the plebs that they want to leave defenseless, raped and murdered.

    2. In general, I am willing to support far more gun regulation than most of the commenters here, but what is essentially a flat ban on carry is a bridge too far for me. I agree that this statute is unconstitutional.

      This is a non sequitur. Your preferences have no bearing on whether this statute is constitutional or not. Apparently liberals (including liberal judges) just don’t get it.

      1. My preferences have nothing to do with it. The question is whether a particular line is a bridge too far (see my response to Armchair Lawyer above). I think this law is. That doesn’t mean that every other gun regulation is too.

  11. Very good article.

    Of course, the 2nd amendment originally only constrained the federal government. I’m not convinced that the original meaning of the 14th amendment was to apply that constraint to the States and empower the federal government to enforce and define that constraint against the States. Supporters of the natural right to defense of self and others with firearms may think that sounds like a good idea, but they’re not thinking structurally and long term. Sooner or later, you will have a few Judge Bybees on the SCOTUS. Then you’re done. Decentralization of government power is paramount.

    1. I’m okay with the 14th Amendment not “incorporating” the bill of rights as long as the others are undone as well. You don’t get to say “The 1st, 4th, 5th, 6th, 7th and 8th are incorporated, but not the 2nd. Sorry!”

  12. Professor Kopel: as it is your writing, not merely a quote, perhaps you can clarify what you mean by “Carry permits are issued to security guards for use while on duty, and never to private citizens.” in the second paragraph of your post.

    1) what is a private citizen, and is there any legal definition to that term
    2) when is someone employed as a security guard not a private citizen
    3) under what circumstance is a citizen with policing credentials (aka police officer), just a citizen or private citizen.

    Seems like a business opportunity for private security companies to spring up in the state of Hawaii

    1. See the Hawaii AG report that is an appendix to the court’s opinion.

  13. The phrase “bear arms” certainly suggests an outdoor activity to me. Who bears arms in their own home?

  14. I have two reactions to this.

    First, that the justices authoring this decision don’t really believe what they wrote, but wrote it to provoke a hearing at the SCOTUS, who would strike it down and once and for all establish a right to carry, concealed or openly, in the entire U.S. That’s what I hope.

    Second, that they very cynically decided what outcome they wanted and worked backwards from there, distorting references to history and precedent to yield this outcome. This is the most likely one, in my opinion.

    The second is what infuriates me and many other people about certain justices and the judicial system in general.

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