The Ninth Circuit and the Second Amendment

BY FELIX ZHUK

The Ninth Circuit Court of Appeals in San Francisco (Ken Lund/Flickr).

On July 24, 2018, a three-judge panel on the Court of Appeals for the Ninth Circuit issued a landmark ruling in the gun rights case Young v. Hawaii. With a two-vote concurrence and a one-vote dissent, the court found that the Second Amendment to the Constitution protects the right of Americans to carry firearms openly.

The appellant George Young, a sixty-eight-year-old Vietnam War veteran living in Hawaii, filed a lawsuit in federal court after the denial of his applications to obtain either a concealed carry permit or an open carry permit. After losing at the district court level, gun rights lawyer Alan Beck drafted an appeal of the decision for review in the federal appellate court, with his argument hinging on the meaning of the word “bear” within the text of the Second Amendment; the court judged that while “keep” protects an individual’s right to acquire and possess firearms within the home (following Supreme Court precedent set under District of Columbia v. Heller and McDonald v. City of Chicago), “bear” protects the right to carry outside the home. The positive outcome of the ruling — now law — sets a binding precedent for the lower courts in the geographic area covered by the Ninth Circuit. Effectively, this means that every American from Fairbanks to Honolulu to San Francisco to Portland and Seattle cannot be denied the ability to openly carry a firearm on a city street legally.

The Ninth Circuit’s decision marks a clear divergence from the court’s usual positions; its judicial decisions have historically taken a very limited interpretation of the Second Amendment. In a previous case, Peruta v. San Diego County, the Ninth Circuit issued a ruling similar to that in Young v. Hawaii, judging that the Constitution protected the concealed carry of firearms. However, on an en banc appeal — an appeal to a larger, randomized subset of Ninth Circuit Court judges — the initial appellate decision was overturned: the Ninth Circuit held that the Constitution does not protect an individual’s right to carry a firearm concealed on his person. Despite this decision, which has binding precedent on all Ninth Circuit judges as well as those judges at the district court level in the area geographically covered by the Court, the decision did not rule whether the Constitution protected some form of carry. Consequently, the three-judge panel which issued the decision was not bound to rule against Young, since he had applied for both a concealed carry permit as well as an open carry permit.

Currently, the State of Hawaii has filed with the court a petition to relook at the case en banc in the hopes that the court would rule similarly to their decision in Peruta. However, in light of the confirmation of Brett Kavanaugh as an associate justice to the Supreme Court, the Ninth Circuit will likely not grant the petition for a rehearing en banc (a petition for en banc must be approved by a majority of the appellate court’s judges) due to the inherent dangers of an appeal to the Supreme Court.

In a fiery dissent written during his time as a judge on the D.C. Circuit, Kavanaugh fiercely argued against a ban on assault weapons and firearm magazines containing more than ten rounds. Replacing the moderate Justice Anthony Kennedy, the composition of the High Court now features four solidly pro-gun Justices — two of whom, Thomas and Gorsuch, wished to review the en banc panel’s decision in Peruta v. San Diego County — as well as Chief Justice John Roberts, who voted with the majorities in Heller and McDonald.

As the Ninth Circuit’s decision now stands in Young v. Hawaii, the precedent of the decision remains effectively only in the geographic territory of the Circuit. Other circuits like the Court of Appeals for the Second Circuit, which covers New York, have not had similar rulings; as a result, the lawful carrying of firearms in these areas has not yet been found to be constitutionally protected. If the Ninth Circuit takes up the petition, the Supreme Court will almost invariably take up the case on appeal. As a writ of certiorari (the acceptance of a court case for review) only requires four Supreme Court Justices, the numbers for a writ in Young v. Hawaii exist. With the current composition of the court, not only will the court likely set nationwide precedent protecting the carrying of firearms, it may very well do away entirely with other prohibitions affecting the right to carry, namely prohibitions on carrying firearms near schools and requirements of permits for the purposes of carrying firearms.

Although the judges on the Ninth Circuit may wish they could strike down the decision of the three-judge panel, the possibility of the Supreme Court overruling them and setting nationwide precedent will likely force them to concede their hand and deny the petition for en banc. For the same reason, an appeal to the Supreme Court by Hawaii should the petition for en banc be rejected is similarly unlikely.

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