SAN FRANCISCO, CA (March 24, 2021) — Today, the Ninth Circuit issued its en banc opinion in Young v. Hawaii—a case in which Firearms Policy Coalition (FPC) filed a supporting brief—where the court upheld Hawaii’s de facto ban on the public carry of firearms.
Hawaii law, H.R.S. § 134-9(a), requires that residents seeking a license to openly carry a firearm demonstrate good moral character, that he or she will be “engaged in the protection of life and property,” and “the urgency or the need” to carry a firearm. In practice, virtually nobody ever demonstrates a strong enough urgency or need to be issued a license, so the licensing requirement operates as a prohibition.
In 2011, George Young submitted two applications for an open-carry license. Both were denied because he failed to demonstrate a sufficient “urgency” or “need.” Young challenged the denials in court, arguing that his desire to carry a firearm for self-defense was all the Second Amendment required.
After the district court ruled against him, a 3-judge panel of the Ninth Circuit ruled in his favor—holding that the Second Amendment must protect some method of carrying outside the home, and because the Ninth Circuit has previously held that concealed carry is not protected, open carry must be. But then, the Ninth Circuit decided to rehear the case en banc—i.e., before an 11-judge panel.
The en banc court held that Hawaii’s open carry law did not violate the Second Amendment. Rather, the court determined that because history demonstrates a “longstanding” tradition in English and American law of government “prohibit[ing] certain weapons from entering . . . public spaces as means of providing ‘domestic Tranquility’ and forestalling ‘domestic Violence,’” there “is no right to carry arms openly in public.”
The dissent pointed out that the majority’s “holding is as unprecedented as it is extreme,” and that it “reduces the right to ‘bear Arms’ to a mere inkblot.” Moreover, the holding “undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.”
The majority opinion cited FPC’s brief and adopted much of the history it provided. Specifically, FPC’s brief proved that firearm carrying was common in the colonial and founding eras, and that it was even required by many colonies and states. As the opinion noted, the brief effectively demonstrated “a general acceptance by local governments of some firearms in the public square.” But the court nevertheless held that the Second Amendment does not protect such carrying.
“We are very disappointed in the outcome of this case. As the dissent pointed out, the Ninth Circuit has effectively eliminated the word ‘bear’ from the Constitution,” explained FPC’s Director of Constitutional Studies, Joseph Greenlee. “Now that tens of millions of Americans have been told, for the first time ever, that they have no right to carry a firearm, it is more important than ever for the Supreme Court to address the issue and define the right to ‘bear arms.’”
“While this latest misguided Ninth Circuit decision is far from surprising, FPC will continue to aggressively take action to restore the right to bear arms throughout the United States,” said FPC Senior Director of Legal Operations Adam Kraut. “In fact, FPC has multiple active carry cases, including against New Jersey, Maryland, Pennsylvania, and New York City, and will be filing more in various circuits in the coming weeks and months. Our mission is to create a world in which individuals can freely purchase, possess, and carry loaded, operable arms for self-defense in public, and we intend to achieve nothing short of that.”
The U.S. Supreme Court will consider whether to hear a different carry case—in which FPC also filed a brief—at its March 26 conference. That case is NYSRPA v. Bruen, and it involves a challenge to New York’s severe carry restrictions.
Firearms Policy Coalition and its FPC Law team are the nation’s next-generation advocates leading the Second Amendment litigation and research space, having recently filed two United States Supreme Court petitions for certiorari (review) (Folajtar v. Attorney General and Holloway v. Attorney General) and several major federal Second Amendment lawsuits, including challenges to the State of Maryland’s ban on “assault weapons'' (Bianchi v. Frosh), Philadelphia’s Gun Permit Unit policies and practices (Fetsurka v. Outlaw), Pennsylvania’s ban on carry by adults under 21 years of age (Lara v. Evanchick), California’s Handgun Ban and “Roster” laws (Renna v. Becerra), Maryland’s carry ban (Call v. Jones), New Jersey’s carry ban (Bennett v. Davis), New York City’s carry ban (Greco v. New York City), the federal ban on the sale of handguns and handgun ammunition by federal firearm licensees (FFLs) to adults under 21 years of age (Reese v. BATFE), and others, with many more cases being prepared today. To follow these and other legal cases FPC is actively working on, visit the Legal Action section of FPC’s website or follow FPC on Instagram, Twitter, Facebook, YouTube.
Firearms Policy Coalition (firearmspolicy.org) is a 501(c)4 nonprofit organization. FPC’s mission is to protect and defend constitutional rights—especially the right to keep and bear arms—advance individual liberty, and restore freedom through litigation and legal action, legislative and regulatory action, education, outreach, grassroots activism, other programs. FPC Law is the nation’s largest public interest legal team focused on Second Amendment and adjacent fundamental rights including freedom of speech and due process, conducting litigation, research, scholarly publications, and amicus briefing, among other efforts.