Constitutional Law - Ninth Circuit Strikes down Licensing Law in Favor of Second Amendment Right to Open Carry - Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018)
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Constitutional Law-Ninth Circuit Strikes Down Licensing Law in Favor of
Second Amendment Right to Open Carry-Young v. Hawaii, 896 F.3d 1044 (9th
Cir. 2018).
The Second Amendment plainly provides that [a] well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed, yet judicial interpretation of its scope thrives
in contention.' The Supreme Court has held the Second Amendment protects an
individual's right to keep a handgun in one's home for self-defense, but has not
addressed whether the Second Amendment protects the right to self-defense in
public, resulting in a circuit split.2 In Young v. Hawaii,3 a three-judge panel for
the Court of Appeals for the Ninth Circuit addressed the question and considered,
as a matter of first impression, whether the Second Amendment encompasses a
citizen's right to openly carry a firearm in public for self-defense.4 In a 2-1
decision, the Ninth Circuit held that it does apply and, as a result, that Hawaii's
1. U.S. CONsT. amend. II; see District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008) (articulating
Second Amendment's operative clause provides individual right to possess and carry arms for confrontation).
The Heller Court noted that constitutional rights were immortalized with the scope they were understood to have
when they were adopted by the people, but the Court did not address exactly what that scope looks like in today's
world. See District of Columbia v. Heller, 554 U.S. 570, 634-45 (2008); Ivan E. Bodensteiner, Scope of the
Second Amendment Right-Post-Heller Standard of Review, 41 U. TOL. L. REV. 43, 44 (2009) (identifying
difficulty analyzing Second Amendment scope). Some courts and commentators have emphasized Heller's
holding that the Second Amendment right is limited to the home, so that carrying handguns in public does not
fall within the Second Amendment's protection. See McDonald v. City of Chicago, 561 U.S. 742, 886 (2010)
(following Heller and noting Second Amendment protection most acute inside home); Peruta v. County of San
Diego (Peruta 1), 742 F.3d 1144, 1166 (9th Cir.) (detailing carrying handgun outside home for self-defense within
Second Amendment subject to traditional restrictions), vacated, 781 F.3d 1106 (9th Cir. 2014), and rev'd en
banc, 824 F.3d 919 (9th Cir. 2016); see also, e.g., Gould v. Morgan, 907 F.3d 659, 671 (1st Cir. 2018) (dictating
core Second Amendment right limited to self-defense within home); Woollard v. Gallagher, 712 F.3d 865, 874
(4th Cir. 2013) (referencing Heller's notion of core protection inside home); Kachalsky v. County of Westchester,
701 F.3d 81, 93 (2d Cir. 2012) (reiterating arms-bearing right inside home core protection identified by Heller).
Others assert that the potential applicability of the right to bear arms to carrying outside the home is simply
devoid of guidance, and a subject that lower courts should hesitate to venture into for prudential reasons. See
Michael P. O'Shea, Modeling the Second Amendment Right to Carry Arms (): Judicial Tradition and the Scope
of Bearing Arms for Self-Defense, 61 AM. U. L. REv. 585, 589 (2012) (examining difficulty in lower courts
regarding Second Amendment scope).
2. See District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008) (holding handguns kept in home for
self-defense core constitutional right). The Heller Court acknowledged the potential military-centric view of the
Second Amendment, but neglected it in favor of a self-defense, core-purpose interpretation. Id. at 579-81. The
Court further interpreted the Second Amendment as conferring an individual right to keep and bear arms inside
the home for self-defense to all private citizens. Id. at 628. The Court held that the core Second Amendment
protection exists within the home, implying there is no such core right in public. Id. at 629; see also Drake v.
Filko, 724 F.3d 426, 430 (3d Cir. 2013) (referencing lack of Supreme Court direction interpreting Second
Amendment protection beyond home).
3. 896 F.3d 1044 (9th Cir. 2018).
4. See id. at 1048 (questioning Second Amendment protection scope outside home).](ViewImageLocal?handle=hein.journals/sufflr52&div=21&collection=&method=preview&ext=.png&size=3)
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