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'2A Protects Right to Carry in Public for Self-Defense,' Says 9th Circuit

July 24, 2018 By Dave Workman

A Ninth Circuit Court of Appeals panel has ruled that open carry of a firearm "falls within the core of the Second Amendment." (Dave Workman)

In a 2-1 bombshell opinion issued Tuesday, a panel of the U.S. Ninth Circuit Court of Appeals ruled that, "for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense" and that the open carrying of firearms for that purpose "falls within the core of the Second Amendment."

Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms, and founder of the Second Amendment Foundation, told Liberty Park Press that SAF "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."

Open carry activists have been talking about the ruling at their forum, OpenCarry.org. The entire ruling may be read here.

The case stems from a challenge of Hawaii County regulations by Hawaii resident George K. Young, Jr. The county refused to issue a carry license "because (Young) failed to satisfy Hawaii's licensing requirements, as set forth in section 134-9 of the Hawaii Revised Statutes," the court opinion noted.

The 59-page opinion was authored by federal Judge Diarmuid F. O'Scannlain, who 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."

Young had argued 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'," the ruling noted.

Judge O'Scannlain added this observation: "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."

While Hawaii officials may request an en banc hearing before a full Ninth Circuit panel, it will be interesting to watch how this unfolds because of an earlier Ninth Circuit ruling that held concealed carry is not protected by the Second Amendment. As Gottlieb told a reporter Tuesday, this creates a dilemma because either open or concealed carry must be allowed for citizens to exercise their right to bear arms, as protected by the Second Amendment.

The ruling could open the door to the Supreme Court, which has been reluctant to take a Second Amendment case since the 2010 McDonald ruling. There have been at least three "right to carry" cases sent to the high court for review, and all have been rejected. But that could change if Judge Brett Kavanaugh is appointed to fill the vacancy being created by retiring Associate Justice Anthony Kennedy.

The Ninth Circuit encompasses all the western states, including California, Oregon and Washington.