Even before the ink dries on a controversial new gun-control decision by the San Francisco-based 9th District Court of Appeals, firearms advocates are preparing to push it to the U.S. Supreme Court because it appears to rewrite the Second Amendment.
In deciding Young v. State of Hawaii, the split court Wednesday decided that openly carrying a handgun is not constitutionally protected outside an owner’s house, a very limited opinion that challenges several states that allow open and concealed carry.
And combined with a 2016 decision on concealed carry weapons, now states in the district can bar citizens from having a weapon with them when they leave home.
Judge Jay Bybee, writing for the majority, cited historical examples where colonists thought having a gun in public was a danger.
Hawaii has very strict carry laws, essentially limiting permits to those in law enforcement. That compares to some states that have no laws on carrying a weapon, concealed or openly.
In his dissent, Judge Diarmuid O’Scannlain said the court’s opinion essentially erased part of the Second Amendment that allows citizens to “bear” arms, which he translated to mean outside the house.
“Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear — i.e., to carry — that same firearm for self-defense in any other place,” he wrote.
The decision has sparked an outcry in the gun world.
“The ability to defend yourself and your loved ones is one of the most basic of fundamental rights,” Lars Dalseide, spokesman for the National Rifle Association, told Secrets.
“With today’s ruling, the 9th Circuit Court of Appeals has basically eliminated that right once you step outside your home. This ruling affects the safety of seven states, tens of millions of people, and the very principles upon which this country was founded,” he added.
“This ruling is not only completely misguided legally, as the dissenting judges pointed out, but it’s also dangerous because it will put lives at risk,” added Tim Schmidt, president and founder of the U.S. Concealed Carry Association, which advocates, trains, and provides legal guidance.
“There are countless instances every year where responsibly armed Americans have stepped forward to protect themselves, their families, and their communities when threatened with criminal violence. The USCCA believes it’s now more important than ever for the Supreme Court to weigh in and make it clear that every American has the right to self-protection whether inside or outside of their homes,” he told us.
Emily Miller, the author of Emily Gets Her Gun: …But Obama Wants to Take Yours, and a new blog, “Emily Posts,” also said the case will end up with the Supreme Court.
“The Ninth Circuit Court seems to be trolling the Supreme Court to get it to take up a case on gun carry rights. The most liberal appeals court in the country ruled on Wednesday that open carrying a gun — meaning visible to others — is not a constitutional right in America. As open carry is not a public safety issue or source of crime, the California court seems to be pushing every inch it can against the Second Amendment while it can,” she wrote.
The case comes at a time when Washington is eyeing new gun-control measures following the shooting deaths in Boulder, Colorado, this week.
Miller noted that the last big gun case the Supreme Court handled was the landmark Heller decision. She said that decision “gives individuals the right to own a gun. It did not address laws that limit carrying the gun outside the home nor what kind of guns could be outlawed.”
Both sides in the new case said Heller favors them, but she wrote, “Since what we call ‘open carry’ was the standard way to carry guns in the 18th century, it’s clear that the type of bearing arms to which they were referring. You won’t find any depictions of Thomas Jefferson with a pistol in a holster under his cloak from those times. So that would make this open carry case one that would be easier to address by the Supreme Court.”
Author: Paul Bedard
Source: Washington Examiner: Judges erase ‘and bear arms’ from Second Amendment
