Ninth Circuit: 'The government may regulate, and even prohibit [guns], in public places'

The Second Amendment doesn’t protect an unfettered right to openly carry a gun or pistol in public, according to the en banc 9th U.S. Circuit Court of Appeals at San Francisco, reported the ABA Journal.

In a 7-4 decision Wednesday, the appeals court upheld a Hawaii law restricting open carry.

The San Francisco Chronicle, Courthouse News Service and CNN have coverage, while How Appealing links to the March 24 decision and additional coverage.

The law requires residents who want to obtain a license to carry firearms in public to demonstrate an “urgency or need” and to be “engaged in the protection of life and property.” The restrictions don’t apply to police officers, military personnel and hunters.

Judge Jay S. Bybee, an appointee of former President George W. Bush, wrote the majority opinion.

“The contours of the government’s power to regulate arms in the public square is at least this: The government may regulate, and even prohibit, in public places—including government buildings, churches, schools and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly,” Bybee wrote.

Bybee reached that conclusion after reviewing the history of early English and American gun regulations.

“For centuries, we have accepted that, in order to maintain the public peace, the government must have the power to determine whether and how arms may be carried in public places,” Bybee wrote. “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.”

Judge Diarmuid F. O’Scannlain was among the dissenters. He said the majority decision makes the Second Amendment an “inkblot.”

Three other federal appeals courts have also upheld laws that restrict open carry, according to Courthouse News Service. They are the 2nd Circuit at New York-based, the 3rd Circuit at Philadelphia the 4th Circuit at Richmond, Virginia.

But two appeals courts have issued contrary opinions. They are the U.S. Court of Appeals for the District of Columbia Circuit and the 7th Circuit at Chicago.

The plaintiff in the Hawaii case is George Young, whose open-carry application was denied twice. A lawyer for Young, Alan Beck of San Diego, said other courts that upheld open-carry regulations did not go as far as the 9th Circuit.

“The 9th Circuit’s opinion, which finds the Second Amendment right does not apply outside the home at all, contradicts the decisions of every federal circuit court in the country that has ruled on this issue,” Beck told Courthouse News Service in an email. “We will be seeking Supreme Court review in order to overturn the 9th Circuit’s erroneous decision.”

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