Did the Ninth Circuit just limit the Second Amendment right to the home?
That’s the first question I asked myself after reading the en banc decision in Young v. Hawaii, issued this past Wednesday. In a wide-ranging opinion spanning more than 100 pages, conservative George W. Bush appointed Judge Jay Bybee wrote for a 7-4 majority upholding Hawaii’s strict licensing regime for open carrying firearms.
After sitting with the opinion for a few days, I think the answer to my initial question is no—though it does come close. To be sure, the opinion strongly affirms the government’s broad regulatory authority to restrict publicly carrying firearms, but I’m not sure it’s best characterized as a total denial of a right to publicly carry. After all, the law at issue is not a complete ban, so declaring that there is no right to public carry would likely be dicta. But also, and relatedly, the opinion describes the history as negating an unfettered or general right to carry, even if some of the court’s later statements are not so circumscribed. So the major takeaway from the opinion, in my view, is that any right to carry guns in public is subject to potentially robust regulation.
The case arose from a challenge to Hawaii’s law that strictly limits openly carrying a handgun. (In 2016, a different Ninth Circuit en banc panel (the circuit is so large its en banc sittings do not include all active judges) concluded in Peruta v. San Diego that the Second Amendment does not protect the right to carry a concealed weapon at all.) Under Hawaii law, a person can obtain a license to carry a handgun openly if they show sufficient “urgency or  need” for the license and that they are engaged in “the protection of life and property.” The County of Hawaii, where Young lived, purported to narrow these requirements even further, including by providing that only “private detectives and security guards” qualified for a license, and that even long guns cannot be carried openly carried without one.
Then, during the litigation, the Hawaii Attorney General issued an opinion letter rejecting the narrow county interpretation and construing the state open carry law more broadly. As the court summarized, “[a]ll that the statute requires is that the applicant (1) meet the objective qualifications; (2) be of good moral character; (3) demonstrate ‘sufficient need’; and (4) present no other reason to be disqualified” (p21). For the need to be sufficient, the Attorney General said it must be urgent and related to engaging in the protection of life or property, and thus more than a general interest in armed self-defense. This is similar to other may-issue regimes that grant a license to publicly carry (often concealed carry) if a person can show a particularized reason or need to do so.
Young filed suit after failing to secure a license to carry his firearm publicly. He argued that the law violates the Second Amendment because it prohibits an ordinary citizen (i.e., one without a special or heightened need for protection) from carrying a handgun publicly outside the home. The majority construed his challenge as a facial challenge, leaving open the possibility that the law could later be challenged on as-applied grounds. (A prior three-judge panel had struck down the law, but when the court granted rehearing en banc, it vacated that panel opinion.)
The court began its substantive review by laying out that (1) Heller did not clearly answer the question of “[t]he extent to which the Second Amendment protects the right to keep and bear arms outside the home,” (p33) and (2) the two-part framework governs the case. Under that two-part framework, the court first asks whether the law at issue burdens conduct protected by the Second Amendment. If the answer to that question is yes, then the court applies the appropriate level of scrutiny.
At the first step, the court clarified that its task was to determine whether history showed that the regulation at issue did not infringe on the Second Amendment right as it was understood at the founding. If it did not, then the law is constitutional. Most courts considering similar challenges have not done an in-depth historical analysis at step one. They have typically upheld a law at step two under, usually, intermediate scrutiny, often by assuming at step one that the law burdened protected conduct. (The D.C. Circuit, in Wrenn, is the one circuit court to strike down a may-issue regime, and it did so at step two.)
Departing from the tradition of assuming coverage at step one and moving briskly to step two, the Young court undertook a detailed historical inquiry. It reviewed the English right to arms—including extensive sifting through the historical debates about the scope of the Statute of Northampton—early colonial practice, and Founding era legislation and case law. Distilling that history, the court concluded that it demonstrated “that restrictions on carrying arms openly have long been a part of our legal tradition” (p40). From the early legislation after the Second Amendment was adopted, for example, the court made two observations: (1) “the states broadly agreed that small, concealable weapons, including firearms, could be banned from the public square” (p72), and (2) even though many states had constitutional provisions protecting the right to keep and bear arms, they evidently thought their statutes were consistent with that protection. The “basic rule” it gathered from the many pages (about 56 of them from my count) of historical inquiry is the following:
Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self-defense. (p96)
The court focused on the long historical distinction between keeping a gun in one’s home and bearing one in public. And, as to the latter, the government has broad authority. This is an implicit—and maybe even explicit—rejection of Judge Griffith’s contention in Wrenn that the Second Amendment requires treating the right “to keep” arms the same as the right “to bear” them. (As we’ll see below, the dissent in Young makes the same move as Judge Griffith). At places, the Young majority reiterated its conclusions in even broader terms:
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. (p97)
(Sometimes, the court was even broader than that (p112): “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.”) The court thus concluded that Hawaii’s law fell well within the traditional understanding of the scope of permissible regulation and did not burden a protected Second Amendment right.
Finally, the majority criticized the dissent’s insistence on viewing a constricted historical record. Judge O’Scannlain, author of the principal dissent—as well as the author of the now-vacated Young panel opinion and the also now-vacated panel opinion in Peruta—took the same approach he had in those other two opinions. That approach, as he described it previously, means discounting early American case law if it contradicts the individual right grounded in self-defense that Heller articulated. Doing that, said the Young majority, was “not history.” Instead, “[t]he dissent has picked its friends and come to a fore-ordained conclusion that its friends have spoken with a ‘single American voice’” (p116).
In his dissent, Judge O’Scannlain (joined by Judges Callahan, Ikuta, and R. Nelson) concluded that history “unequivocally demonstrate[d] that the Amendment does indeed protect the right to carry a gun outside the home for self-defense, even if that right might be subject to some regulation at its edges” (p132). After concluding that open carry is protected at step one, the dissent then moved to step two of the two-part framework and considered the appropriate standard of review to use in assessing constitutionality. Unlike most circuit courts, which have selected intermediate scrutiny, the dissent followed the lead of the D.C. Circuit in Wrenn and declared the statute to be categorically unconstitutional. According to the dissent, “[n]either the text of the Amendment nor its historical interpretations suggests that either right [i.e., the right to keep or the right to bear] has priority over the other” (p179). Thus, for the dissent, Hawaii’s restriction was so severe as to extinguish the core right in armed self-defense.
The Ninth Circuit’s decision came just days before the Supreme Court is set to consider at its conference (today, in fact!) whether to review a Second Amendment challenge to New York’s strict may-issue licensing regime. That case—New York State Rifle & Pistol Association v. Corlett—concerns concealed not open carry, but the question presented in the cert petition is broadly framed as asking almost the same question as Young: Does the Second Amendment protect the ordinary, law-abiding citizen’s right to carry handguns outside the home for self-defense. It is hard to imagine that Young will not be on their minds when the justices discuss Corlett today. If they choose to review Corlett, the Court could easily issue a ruling that has an impact on the decision in Young. Or, the Court could forego the Corlett case and wait to hear Young directly. But it seems only a matter of time before the Supreme Court settles the public carriage question that has been vexing the lower courts since the day Heller was decided.