When an en banc panel of the Ninth U.S. Circuit Court of Appeals ruled in a 127-page opinion earlier this week that the Second Amendment does not guarantee a right to openly carry a firearm for self-defense, did the San Francisco-based appellate court reduce the right to bear arms to the level of a government-regulated privilege?
In 2016, the same Circuit issued an en banc ruling that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.”
There really are no other options for carrying firearms for personal protection in public. You can either carry concealed or openly.
This week’s ruling was handed down in the case of Young v. State of Hawaii. George Young, a resident of Hawaii County (the “Big Island”) applied twice for a license to carry and was turned down. His effort is detailed in the majority opinion written by Judge Jay Bybee, a George W. Bush appointee. He filed an action in federal district court challenging Hawaii’s firearm-licensing law under Second and Fourteenth Amendment grounds. The district upheld the state statute, but a three-judge Ninth Circuit panel ruled earlier the law was unconstitutional. The 11-member en banc panel reversed.
Back in 2016, Edward Peruta, Adam Richards and other plaintiffs challenged restrictions in San Diego and Yolo counties on obtaining concealed carry licenses. A three-judge panel in a split-decision said the restrictions violated the Second Amendment, according to a history of the case. The en banc panel in that case reversed and upheld the original district court ruling that the Second Amendment doesn’t protect concealed carry. That case is known as Peruta v. City of San Diego.
But how does that square with the language of the Second Amendment which clearly protects “the right of the people to keep and bear arms?”
According to the dissent by Senior Judge Diarmuid F. O’Scannlain, a Ronald Reagan appointee, it doesn’t square at all. In his dissent in the Young ruling, Judge O’Scannlain wrote, “This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, 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.
“In so holding,” the judge stated, “the majority reduces the right to ‘bear Arms’ to a mere inkblot.”
But as noted by the Courthouse News, Judge Bybee countered in the majority opinion, “The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces. The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”
So, where does that leave the right to bear arms, as delineated in the Bill of Rights? Probably on a path to the U.S. Supreme Court, which did not define the parameters of the Second Amendment in either the 2008 Heller or 2010 McDonald rulings.
The high court last year declined to accept any of ten Second Amendment cases submitted for review, but that was prior to the death of Associate Justice Ruth Bader Ginsburg and her replacement by Justice Amy Coney Barrett. This shifted the balance of the court to conservatives who may now accept one or more Second Amendment cases for review.
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