Court Rules Open Carry Is 'Core 2nd Amendment Right'
Gun rights activists scored another judicial win this week with a narrow appeals court ruling that deemed one Hawaii law too restrictive.
According to The Washington Times, the state code allows for residents to keep firearms inside residences and places of business.
Carrying a gun on one’s person, however, is generally prohibited without a license. Such permission is granted under the law only if a person can convince local law enforcement that it is necessary in response to legitimate safety concerns.
When one resident applied for a license in 2011, he was denied. George Young said the same thing happened again when he applied a second time.
As it turned out, local officials said they had not approved any requests for a waiver to the state ordinance.
5/ The panel also finds that the Hawaii law flunks intermediate scrutiny because "no concealed carry license has ever been granted by the County" under the "good cause" standard. pic.twitter.com/qi8oQY85o8
— Josh Blackman (@JoshMBlackman) July 24, 2018
For two of the three judges on the 9th Circuit Court of Appeals panel, the restriction more closely resembled a flat-out ban on carrying firearms on the island.
“For better or worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” wrote Judge Diarmuid F. O’Scannlain in a wide-ranging majority opinion.
Citing both historical precedent and semantics in the argument, O’Scannlain noted that the Second Amendment alludes to the right to “bear” arms. That word would have likely been “keep,” he wrote, if its authors believed Americans should not be able to carry their guns outside of the home.
The decision was split with one of the three judges — each of whom were appointed by a Republican president — writing a dissenting opinion that found Hawaii’s law within the realm of constitutionality.
Judge Richard R. Clifton also referenced American history in making his point.
“A more balanced historical analysis reveals that states have long regulated and limited public carry of firearms and, indeed, have frequently limited public carry to individuals with specific self-defense needs,” he wrote. “Hawaii’s regulatory framework fits squarely into that long tradition.”
Despite that minority opinion, the 2-1 ruling serves to define the right to carry firearms as a “core Second Amendment right.”
While many gun rights groups and advocates celebrated the ruling, those who favored Hawaii’s law see it as a step backward.
Russell Suzuki, the state’s attorney general, said in response that it “would undermine Hawaii’s strong gun control law and our commitment to protect the public.”
The decision could be referred to the full appeals court, however, where it could face tougher scrutiny from a court widely described as left-leaning.
If the panel’s decision is overturned by that court, it could then be appealed to the U.S. Supreme Court.
Clifton wrote in his opinion that he envisions this debate ultimately being decided by the nation’s highest court.
“In light of the already existing circuit split, I assume that the Supreme Court will find it appropriate at some point to revisit the reach of the Second Amendment and to speak more precisely to the limits on the authority of state and local governments to impose restrictions on carrying guns in public,” he said.
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