Even a broken clock is right twice a day. It’s one of my favorite sayings and I’m actually quite pleased to use it right now in describing a case recently decided by a three-judge panel of the Ninth U.S. Circuit Court of Appeals.
In the case of Young v. State of Hawaii, decided on July 24th, the panel decided 2-1 the State of Hawaii violated the Second Amendment rights of George K. Young, Jr. by denying his application for a license to carry a handgun in public. The Hawaii County Chief of Police denied Young’s application to carry a handgun, stating the state only allowed those to open carry who are “engaged in the protection of life and property” and concealed carry to those who can demonstrate an “exceptional case.”
In the decision, the panel held that though they hold the concealed carry of firearms is outside the scope of Second Amendment protection, open carry of a firearm is authorized by the Second Amendment for self-defense.
In the opinion by Judge O’Scannlain, the panel looked to the more recent landmark cases first.
In the 2008 landmark District of Columbia v. Heller, the Supreme Court held the Second Amendment guarantees the right of a person to keep a handgun in one’s home for self-defense. The 2010 case McDonald v. City of Chicago held the Second Amendment is valid against the States through the Fourteenth Amendment and an effective ban against handgun possession was a violation of the Constitution. However, these cases offered little guidance regarding the degree of Second Amendment protections outside of the home due to the narrow nature of Supreme Court decisions.
In a discussion regarding the actual words of the Constitution, the Court noted the Second Amendment protects bearing as well as keeping arms, and that implies “some level of public carry in case of confrontation.” The Court said “We are unpersuaded that historical regulation of public carry requires us to remove the right to bear arms from the Second Amendment’s core protection,” and “ we reject a cramped reading of the Second Amendment that renders to ‘keep’ and to ‘bear’ unequal guarantees.”
While this is an unexpected and fairly strong-worded ruling in favor of the Second Amendment, it may not be the absolute win that some are touting it to be. The notoriously liberal Ninth Circuit is the largest of the 13 court of appeals, with 29 active judges. This opinion was rendered by two of the three judges who heard the case.
While this could pave the way for the Supreme Court to hear the first Second Amendment case since 2010, the State of Hawaii has the option of seeking review by the Supreme Court, or seeking a rehearing before the en banc (French for “in bench”) court, which means the chief judge and ten other circuit judges would likely hear the case. In fact, the parties do not even have to request a rehearing as a circuit judge can request a vote be held on whether a decision should be reheard by the en banc panel. According to the Ninth Circuit, they hear on average 15 to 25 en banc cases per year.
While I believe this case has the possibility of paving the way for a new Supreme Court precedent that could be in favor of supporters of the Constitution and the Second Amendment, there are far too many “what ifs” between now and a final decision.
The biggest disappointment is that all of this legal argle-bargle is not necessary in determining firearm rights. Textually, the words “people” and “shall not be infringed” are quite bold and in my estimation, only functionally modifiable when one is attempting to make a political stand against firearms and is making a veiled attack on the Constitution. In fact, the word “shall” is among the strongest words in the legal vernacular.
I don’t mean to always be a wet blanket when it comes to these legal cases that get conservatives excited, but it’s always a long road to the Supreme Court and their opinions are generally quite narrowly tailored. While I hope this ushers in a new age of Second Amendment rebirth, I’ll believe it when I see it.