Right to Carry Gun in Public Debated at Ninth Circuit

by Nicholas Iovino, Court House News, September 24, 2020 

SAN FRANCISCO (CN) — In a case challenging a Hawaii gun restriction that could affect state gun laws across the country, an attorney told an en banc Ninth Circuit panel Thursday that the Second Amendment doesn’t categorically bar all restrictions on carrying guns outside the home.

“Hawaii’s law is squarely rooted in a long historical tradition going back seven centuries,” said attorney Neal Katyal of Hogan Lovells in Washington D.C., who represents the state and county of Hawaii. “That tradition shows that carrying firearms in public without good cause has never been part of the right to keep and bear arms.”

Plaintiff George Young sued Hawaii in 2012 for denying his applications for permits to carry a concealed or openly visible handgun. A Hawaii state law requires a license to carry a gun in public.

Under a Hawaii County regulation, the police chief may only grant such licenses to those who need a gun for their job or who show “reason to fear injury” to their “person or property.” No one other than a security guard has ever obtained an open-carry license in Hawaii, lawyers for the county acknowledged during a previous Ninth Circuit hearing in 2018.

In July 2018, a divided three-judge Ninth Circuit panel ruled that carrying a gun in public is a constitutional right and that Hawaii cannot deny permits to all non-security guard civilians who wish to exercise that right.

By ruling against state laws that ban carrying guns in public, the Ninth Circuit joined two other circuit courts that have issued similar rulings: the D.C. Circuit and Seventh Circuit. Meanwhile, the Second, Third and Fourth Circuits have upheld open-carry firearm restrictions, making the issue ripe for potential review by the U.S. Supreme Court.

Writing for the majority in the Ninth Circuit’s 2018 opinion, Ninth Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, found the 2008 Supreme Court decision in District of Columbia v. Heller, which established a constitutional right to keep a gun inside one’s home for self-defense, also applies to carrying a gun outside the home for self defense.

Arguing before an 11-judge en banc panel Thursday, Katyal explained that Hawaii state law and the County of Hawaii’s regulations do not limit open-carry permits to security guards. He cited the Hawaii Attorney General’s 2018 guidance stating that an applicant can obtain an open-carry permit by demonstrating “a need to carry a firearm for protection that substantially exceeds the need possessed by ordinary law-abiding citizens.”

“Individuals can carry firearms if they have good cause,” Katyal said. “That is what Hawaii’s law actually is.”

Katyal implored the judges not to focus on data showing that only security guards have obtained open-carry permits. The court must instead look to the plain text of the statute, he said.

Ninth Circuit Judge Ryan Nelson, a Donald Trump appointee, said he interprets the text of the county’s regulation as only allowing security guards to obtain open-carry permits.

“You would agree that the regulation itself is unconstitutional, meaning the Second Amendment would not permit that,” Nelson asked.

Katyal replied that the court need not reach the question of constitutionality because any rule that would limit permits to security guards “is flatly inconsistent with what Hawaii’s state law is.”

Representing the plaintiff, attorney Alan Beck of San Diego argued that even if the Ninth Circuit accepts the Hawaii Attorney General’s “curiously timed” 2018 opinion, the law remains unconstitutional because it gives the police chief “unbridled discretion,” which he can use to deny permits to anyone who is not a security guard. He said the permitting scheme also violates the right to due process by not providing fair notice of what’s required to qualify for an open-carry license.

Katyal insisted that Young forfeited his right to challenge the county’s as-applied regulations by not raising the argument in district court. He said the Ninth Circuit may only consider Young’s lawsuit as a facial challenge, or claim that the text of the statute is unconstitutional.

Katyal argued that the Ninth Circuit’s 2018 opinion failed to consider the long history of good-cause restrictions on openly carrying firearms stretching back to 1328 when the English Parliament enacted the statute of Northampton barring carrying weapons in fairs or markets or before the King’s justices, according to an amicus brief filed by 10 history and law professors from the nation’s top schools.

The attorney also cited 30 states that had restrictions on openly carrying firearms in the early 20th century to support Hawaii’s argument that these laws are longstanding, a factor the Supreme Court in Heller said should be considered when determining the constitutionality of gun restrictions.

Hawaii’s open-carry gun restriction law is 168 years old, Katyal said.

Despite the long history lesson, Ninth Circuit Judge Sandra Ikuta, a George W. Bush appointee who joined O’Scannlain in ruling against Hawaii’s open-carry restriction in 2018, seemed unimpressed.

“The history — which I find very ambiguous — your argument as to history is merely that this right to bear arms is not a core right so that it can be restricted. Is that correct,” Ikuta asked.

“No,” Katyal replied. “You can see it as a core right, but it’s always been subject to a good cause restriction in every time period.”

After an hour of debate, the 11-judge panel took the arguments under submission.

Joining Nelson and Ikuta on the panel were Bill Clinton appointees William Fletcher, M. Margaret McKeown, Kim McLane Wardlaw, and Chief Ninth Circuit Judge Sidney Thomas. The panel also included George W. Bush appointees Richard Clifton, Jay Bybee and Consuelo Callahan. Michelle Friedland, a Barack Obama appointee, rounded out the panel.