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9th Circuit En Banc Panel Ignores 2A Precedent in Ruling Against the Right to Bear Arms in Public

March 29, 2021

The Ninth Circuit Court of Appeals has once again showed its colors, employing extraordinary legal gymnastics in an en banc decision that came down from the court last week in Young v. State of Hawaii. The decision overturned the well-reasoned opinion of a three-judge panel that had previously held that Young had stated a viable Second Amendment claim challenging the county of Hawaii’s overly restrictive scheme regarding public carry of firearms. The law at issue, which bars law-abiding citizens from carrying a firearm outside the home without a public carry license but, at the same time, makes it all but impossible for the average citizen to obtain such a license, effectively makes it impossible for Hawaiians who wish to “bear” arms outside of the home to do so.

In reversing the three-judge decision, the en banc panel observed that the Ninth Circuit “has previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).” The question presented in this case, however, was limited to whether individuals have a right to carry weapons openly in public. Answering that important question in the negative, the court held that the Second Amendment does not guarantee an “unfettered right to carry weapons in public spaces.” In fact, the court went so far as to say that they could find “no general right to carry arms into the public square for self-defense” either openly or concealed, opening the door for government regulation—up to and including prohibition—of any sort of public carry.  

It seems the en banc panel failed to follow its own lead from the CRPA-supported Peruta lawsuit (cited above), where the court previously held that “there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.”

In light of the en banc decisions in the Peruta and Young cases, which together could strip citizens of their right to “bear” arms, CRPA President and General Counsel C.D. Michel stated that “It is time for these issues to go before the Supreme Court. We call on the Supreme Court to give the Second Amendment the respect that is due through decades of jurisprudence and historical record supporting the fundamental right to bear arms as an individual right. Allowing state and local jurisdictions to limit these rights is a violation of those individual rights.”

Several Supreme Court Justices have expressed non-approval of lower courts’ refusal to acknowledge the Second Amendment under existing case law and under the highest level of scrutiny just like other fundamental rights. Last year, the Supreme Court had the opportunity to take on any number of Second Amendment cases, but it refused. The Supreme Court did, however, recently grant review in NYSRPA v. City of New York, and CRPA is supporting this case through amicus briefing. It is time to take up all of these critical civil rights issues that impact millions of lawful gun owners.

CRPA also has a case, Flanagan v. Becerra, that was stayed until a ruling in Young was made by the Court. We are currently reviewing the status of this case and will provide more information on how that case will be moving forward in light of the ruling in Young.

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