The 9th Circuit Says the Right To Bear Arms Does Not Extend Beyond Your Doorstep

The U.S. Court of Appeals for the 9th Circuit today held that the Second Amendment does not guarantee a right to openly carry firearms for self-defense. Combined with a 2016 decision involving concealed firearms, the ruling means that the Second Amendment does not extend beyond the home for residents of the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

According to the majority opinion by Judge Jay Bybee, history shows that legal restrictions on carrying unconcealed firearms, including virtual bans like Hawaii’s, are the sort of “longstanding prohibitions” that the Supreme Court has suggested the Second Amendment allows. The four dissenters think history shows nothing of the sort.

“The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms,'” Judge Diarmuid O’Scannlain writes in a blistering dissent joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson. “Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self-defense in any other place….We now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.” The majority’s reasoning, O’Scannlain says, “reduces the right to ‘bear Arms’ to a mere inkblot.”

The case involves a challenge to Hawaii’s highly restrictive carry permit policy, which requires that applicants demonstrate “the urgency or the need” to carry unconcealed firearms, that they have “good moral character,” and that they be “engaged in the protection of life and property.” As interpreted by Hawaii County (the “Big Island”), those standards limit open-carry permits to “private detectives and security guards.”

Hawaii’s concealed-carry policy, which was not at issue in this case, is similarly restrictive. It requires a permit applicant to satisfy the county police chief that he represents “an exceptional case” and that he has “reason to fear injury” to his “person or property.”

George Young, a Hawaii County resident, unsuccessfully applied for a carry permit twice in 2011, citing a general need for self-defense. He argued that Hawaii’s law was inconsistent with the Second Amendment.

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