9th Circuit Panel: ‘Open Carry falls within core of Second Amendment’


A ruling by a three-judge panel of the Ninth Circuit Court of Appeals could rock the gun prohibition lobby to its roots, while causing the open carry movement to cheer, by noting that “the Second Amendment encompasses a right to carry a firearm openly in public for self-defense.”

A leading Second Amendment advocate immediately supported the ruling, authored by Judge Diarmuid F. O’Scannlain.

A federal appeals court panel has ruled that open carry is protected by the Second Amendment. Dave Workman)

“The Second Amendment Foundation has always said that you have to allow some form of carry for self-defense. If you ban concealed carry you must allow open carry or vice a versa,” said SAF founder and Executive Vice President Alan M. Gottlieb. “You can’t ban both and have no carry under the Second Amendment.”

A summary of the 59-page majority opinion included this:

“The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection, see Peruta v. County of San Diego…it was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. Analyzing the text of the Second Amendment and reviewing the relevant history, including founding-era treatises and nineteenth century case law, the panel stated that it was unpersuaded by the County’s and the State’s argument that the Second Amendment only has force within the home. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public.”

Nationally, open carry activists have been busy in several states. They have a website forum, OpenCarry.org that has reports on the subject from across the country. While this ruling will likely bring a request for an en banc hearing before a full Ninth Circuit panel, it could open the way for a challenge to the U.S. Supreme Court that could see the court finally take up a carry case and define the term “to bear” arms in the Second Amendment.

The case involves a challenge by Hawaii resident George K. Young, Jr. against the County of Hawaii over its restrictive carry permit policies. The county refused to issue a concealed carry license “because (Young) failed to satisfy Hawaii’s licensing requirements, as set forth in section 134-9 of the Hawaii Revised Statutes.”

Young contended that the county “violated the Second Amendment by enforcing against him the State’s limitations in section 134-9 on the open carry of firearms to those ‘engaged in the protection of life and property’ and on the concealed carry of firearms to those who can demonstrate an ‘exceptional case.’”

But Judge O’Scannlain wrote, “Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. It follows that section 134-9 ‘amounts to a destruction’ of a core right, and as such, it is infirm ‘[u]nder any of the standards of scrutiny.’ Thus, we hold that section 134-9’s limitation on the open carry of firearms to those ‘engaged in the protection of life and property’ violates the core of the Second Amendment and is void; the County may not constitutionally enforce such a limitation on applicants for open carry licenses.”

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