By Sam Hoober, Alien Gear Holsters
The Ninth Circuit Court of Appeals has outdone itself.
The Ninth Circuit has just handed down a decision in the (presumably still ongoing) Young v. Hawaii case (which has several components, so this may not be the last time we’ll hear of it) which has some particularly shocking implications.
The court, per the Los Angeles Times, has ruled that “the government may regulate, and even prohibit, in public places…the open carrying of small arms capable of being concealed, whether they are carried concealed or openly.”
You can read the entire decision here, if you’re curious.
In other words, that court has ruled that state governments (and by extension the federal government) can prohibit carrying guns in public.
The argument that the Ninth Circuit makes is that based on available precedent, the right to be armed for self-defense applies only to the home (a man’s home is his castle) and not to “the public square.”
Federal precedent is rather thin here, as SCOTUS has barely touched concealed or open carry to date. To arrive at that precedent, they cited English common law, which is generally considered the precursor to the US Constitution.
In fairness, it is where the Framers got a lot of their ideas.
The gist of English common law on the topic is that while a person had every right to arms to defend the home or if needed to take to war, prohibitions of arms in public were necessary, proper and were enacted early and often.
We can argue about whether or not an American court has any business citing English precedent for current laws, but that isn’t the point.
The point instead is that at least one circuit of the appellate court – the second-highest level of the federal court system – has basically said that the American people have no right to carry in public despite a Second Amendment which would seem to suggest much to the contrary.
The follow-up point is that right now would be an ideal time for the Supreme Court to finally weigh in on the issue. Especially with a (supposed) conservative majority. Whether they will or not is the question of the day.
Is there any indication of how they might rule?
A little, but a case this vital going to the Supreme Court is – as the saying goes – taking a wolf by the ears, so it’s anyone’s guess as to how they might rule.
But what SCOTUS precedent is there?
There are three relevant cases that immediately spring to mind out of the relative scarcity of Second Amendment cases.
First, of course, are McDonald v City of Chicago and, of course, D.C. v. Heller.
Both cases challenged handgun bans in those cities. What Heller established was that having handguns (and long guns) for the purpose of self-defense was part and partial to the Second Amendment.
The decision also regulates storage in the home, holding that the right to self-defense also precludes imposing too onerous a requirement of safe storage that would otherwise impede access in case of emergency.
In other words, Heller establishes that self-defense is clearly one of the reasons that the Second Amendment exists, which is (as mentioned) partially based on English common law and its guarantee of the right of the common man to have arms in the home.
In other words, the government (city, state) can’t forbid specific weapons (unless they have no legitimate military purpose; see US v. Miller) and can’t mandate that you store them in such a way that you can’t get to them if a burglar breaks into your house.
The decision in McDonald served as a bolster for Heller. That decision, likewise challenging a handgun ban (in Chicago) ruled on whether or not Second Amendment rights are incorporated rights.
Now, for those unaware, SCOTUS precedent/constitutional law establishes that some rights are always guaranteed to US citizens – which would be covered under the Privileges or Immunities Clause of the Fourteenth Amendment – and others that are only safeguarded by court ruling (which is called “Due Process Incorporation) and therefore are a little more arguable.
What the court held in McDonald is that the Second Amendment and the right to carry and bear arms is incorporated into our rights as American citizens under the Privileges and Immunities Clause, meaning the right to carry and bear arms is therefore reserved to The People.
In plainer English, we have a right to have guns just as much as we have a right to not have our speech censored by the government, or to not be subjected to cruel and unusual punishments and so on.
We, as Americans, have a right to have guns for self-defense. That’s what those cases mean.
Now, where it’s important for the Supreme Court to step in, is that the Ninth Circuit has just ruled that while we have a right to have guns, we don’t have a right to carry them outside the home.
Here’s where an obscure case may come in handy, should the case be appealed and they decide to grant a writ of certiorari.
The only SCOTUS case that even came CLOSE to touching on carrying a gun in public was a largely forgotten-about case from 1897, Robertson v. Baldwin. The case had nothing to do with guns, per se; carrying a gun was mentioned in passing.
It’s how it’s mentioned in passing that’s relevant.
The case in question concerned two merchant sailors who jumped ship early because they decided they hated their jobs. They were arrested for breaking their contracts, then returned to the vessel in chains to finish it.
They sued for relief, claiming their Thirteenth Amendment right against involuntary servitude had been violated. The court held otherwise since they were being held to a contract they entered into, but nevermind any of that. The relevant passage is:
“The right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”
That sounds onerous, but remember the decision was rendered in 1897. At that time, most states prohibited concealed carry, but most did not prohibit open carry.
What that means is that if you can open carry, technically your right to carry and bear arms isn’t infringed since you can still carry and bear arms. It’s just that you don’t have the exact right to carry exactly the way you want to.
So long as there’s a way to legally carry a gun, that doesn’t mean – according to the court – that your Second Amendment right is being infringed upon.
The idea is similar to the rationale behind Peruta v. San Diego.
The Ninth Circuit held there that since the plaintiff could technically obtain a concealed carry permit, his Second Amendment rights were intact even if there was no way in hell San Diego county was ever going to issue one to him or anybody, and even if the reason for denying the permit was because a Volkswagen drove by.
One might not like it, but here’s the idea.
Essentially, the Supreme Court to date has more or less had the following to say about carrying a gun in public:
First, we have a right to have a gun for self-defense. It’s an incorporated right, reserved by the people rather than to the states.
Second, there would appear to be some sort of right to carry a gun in some fashion.
Third, what’s also established is that the right to carry and bear arms is not unlimited. US v. Miller held that there can be some reasonable restrictions on what kind of guns you can own, and both Heller and MacDonald affirmed that there can be some regulations or restrictions on guns.
The problem is that there’s just too damn much gray area to leave to the states.
Speaking of Peruta and Young v. Hawaii, the Ninth Circuit (having an anti-gun stance, for the most part) has ruled that – given the current constraints of precedent – that they interpret those rights as being to have a gun, but not necessarily to carry it.
Therefore, if you get a permit you better be grateful. If you don’t – too bad. Technically your rights are still intact, according to them.
That was exactly what the shall-issue movement sought to address.
If we’re going to have a permit system (like it or not) it should be fair rather than arbitrary. It should favor all citizens, rather than de facto favor the wealthy and the powerful or the autocratic.
So let’s hope that SCOTUS gets involved on this one. It would be about time they did.
Except here’s where it starts to get a little scary.
So right now, as mentioned, there’s something of a conservative majority on the court. Granted, that hardly means the court is going to be the Great Republican Bulwark Against The Libz. It just means they lean a bit more towards conservative values or whatever you want to say there.
Here’s the wrinkle.
That places this iteration of the Roberts court in somewhat perilous circumstances.
The judiciary is supposed to be the most apolitical branch of government. They operate under stricter rules. While there’s some wiggle room for judicial philosophy, they don’t bend for popular opinion, and that’s by design.
The Supreme Court is the highest level of that branch, and thus is the most visible and closest in proximity to the other branches. They’re like two blocks from the Capitol building, and what – eight from the White House?
What that means, of course, is that they are in a much more tenuous position than a federal judge in Pig’s Knuckle, Arkansas. Closer scrutiny!
And what, pray tell, is that position right now?
Well, there’s a 6 to 3 conservative majority and there’s a liberal majority in the House, a razor-thin liberal majority (Vice President Harris is the tie-breaker) in the Senate, and two liberals in the White House.
Now, the number of justices on the Supreme Court is set by – hold on, now – acts of Congress. The last to adjust the number of justices was the Judiciary Act of 1869. All that’s required for regular bills to pass through both houses of Congress is a simple majority; 50+ percent.
A three-fifths majority is required in the Senate in the case of a filibuster, which makes the filibuster a delay tactic that has been arguably overused, but that’s for another time but now too that the filibuster is also under fire.
What that means is that should the filibuster be eliminated, it would be that much easier for the composition of the Supreme Court to be changed.
The question then becomes what might spur the current liberal majority in the other two branches of government to do that?
So one hopes that the Supreme Court will finally act on gun rights. But one also hopes that this doesn’t spur the party of gun control into punishing them for it so that it can be undone later.
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Sam Hoober is a Contributing Editor to AlienGearHolsters.com, a subsidiary of Hayden, ID, based Tedder Industries, where he writes about gun accessories, gun safety, open and concealed carry tips. Click here to visit aliengearholsters.com.