The 9th Circuit issued a decision last week in the case of Young v. Hawaii. I’m not going to mince words; it is abysmally, intellectually, and philosophically devoid of any redeeming qualities. Well, that is not entirely accurate… Justice O’Scannlain’s stinging dissent makes for some interesting reading.
Okay… bottom line up front: The Young case now stands for the proposition that the Second Amendment does not apply to citizens outside of their homes in the realm of the 9th Circuit. It also now serves as authority that none of the Bill of Rights applies to people outside of their homes in the 9th Circuit. Taken to its full logical conclusion, along with other cases on First, Fourth, and Fifth Amendment limitations on government action, it suggests the Bill of Rights does not serve as any impediment whatsoever on government action against The People who find themselves in the 9th Circuit.
A little case history first: Mr. Young, a Hawaii resident, wanted to carry a gun outside of his home in Hilo. In Hawaii they have an extremely strict carriage requirement. Namely, if you want to carry a gun outside of your home, you need to have a permit. This is both for concealed carry, as well as open carry. Empirical evidence shown at trial is that these permits are never issued. Like the concealed-carry requirements in many jurisdictions, an applicant needs to show “good cause” before a permit is issued. In Hawaii, there is literally no such thing as requisite good cause.
The issue here in Young was relegated exclusively to the open-carry permit denial. More specifically, the question turned on whether the Second Amendment applies outside of the home.
At first blush the conclusion that it does seems obvious. (To keep and bear arms are literally two different things describing two separate acts. Keeping arms refers to maintaining weapons in the home, while bearing arms describes carriage outside of the home.) Justice Bybee (channeling Chief Justice Thomas of the 9th Circuit) decided to launch what amounted to a full-throated attack on Heller v. District of Columbia.
In Heller, the Supreme Court undertook a historical analysis of the right to keep and bear arms, going all the way back to the Statute of Northampton issued by the British Parliament in 1328.
Heller provided a historical analysis that showed people generally had a preexisting right to keep and bear arms recognized from the Middle Ages to present day. This right is not absolute. There exists, as there has always existed, the ability of the government to restrict certain weapons, and certain methods of carry and carriage altogether, in sensitive public spaces. This has been deemed the “long-standing traditions test”.
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Essentially, the “long-standing traditions test” looks at the regulation and asks if it comports with an established restriction that has been around for quite some time. If it does, it is presumptively lawful (note: only preemptively). That presumption creates a burden on the part of the plaintiff to show the law is not Constitutionally based on other means.
In Bybee’s analysis they never have to delve into the question of whether the restrictions on carriage comport to the Second Amendment because they knock out the plaintiff’s claim before the analysis begins.
Challenging Heller’s historical record, the Court concludes that all restrictions, even those that completely obliterate the right to keep and bear arms, fall within the “long-standing traditions test”.
Reducto ad absurdom.
The Constitution states you have the right to keep and bear arms. Legislation restricts, no eliminates, that right completely… and as long as the restrictions have been around awhile without being challenged, there is no Constitutional question.
Let’s take it out of 2A jurisprudence and revisit voting rights, or equal protection. The South, both Antebellum and post-Civil War, had long-standing traditions of denying blacks the right to vote and own property. Were these presumptively lawful??? Would a challenge by black plaintiffs of their right to vote being denied be so haphazardly dismissed by the 9th Circuit because of the laws themselves, regardless of their repugnance to the Constitution, or be impossible to challenge because of their age?
During this last week I have fielded multiple calls and emails from people asking me, “Can I still carry my gun?”
If you have a current CCW, the answer is yes. There is no indication that any issuing agency is going to stop the process. The 9th’s decision did not say that a sheriff cannot issue a permit… it simply said that a sheriff does not have to if they don’t want to.
The Second Amendment is as muscular a right as the First, the Fourth, the Fifth, or any specifically enumerated right. The 9th does not see it that way, or more to the point, refuses to see it that way and will selectively use history as rotten architecture to buttress their intellectually flimsy cathedral.
The majority opinion does admit to one thing: Justice Bybee admits, essentially, that the State is insecure, that the idea of people being able to provide for their own protection diminishes the need to be reliant on the State. It is sad that Americans, even those on the bench, would be willing to entertain this as a rationale for upholding a misguided piece of legislation.
The good news is that we now have a definitive circuit split on the foundational meaning of the Second Amendment… and a case that is now ripe for Supreme Court review.