A three judge panel from the Ninth Circuit Court of Appeal ruled on Tuesday July, 24 that the Second Amendment provides for the right to open carry firearms if a jurisdiction completely restricts the citizen's right to conceal carry. (Decision in the Link)
While this decision will certainly be reconsidered with an en banc panel of 11 judges, it is still informative with respect to constitutional review. Assuming the en banc panel reverses, we can fully expect this to head to the Supreme Court in the coming term.
Now, on to the decision
As the Court determined -
We must decide whether the Second Amendment
encompasses the right of a responsible law-abiding
citizen to carry a firearm openly for self-defense outside of the home.
At issue is a Hawaiian statute, 134-9 codified in the Hawaii Revised Statutes (HRS). This statute provided an exception to Hawaii's other gun related statutes that defined where one must maintain their firearms, allowing for them to be effectively maintained only at their “place of business, residence, or sojourn.” H.R.S. §§ 134-23, 134-24, 134-25.
The statute was effectively used to provide for police officers and other individuals who use guns in the course of their civic duties to open carry in the course of their duties and denied other citizens the right to open carry for self defense. The statutes ostensibly allowed for regular citizens to conceal carry only where there is an urgent need, as determined by the Police Chief. Since the statute was in effect the Police Chief had never determined that a citizen qualified for a concealed carry permit. In short, regular citizens were absolutely precluded from either open carry or concealed carry within the subject jurisdiction.
The question, as the Court framed it, was whether the Second Amendment allowed for citizens to open carry firearms for the purpose of self defense.
Short answer: Yes, the Second Amendment allows for a citizen to open carry a firearm for self defense.
Somewhat longer answer: In coming to their determination, the Court obviously looked at the text of the Second Amendment which you can review at the top of the post. Key to their decision was the idea that the Second protects the right to "keep" and to "bear" arms. Constitutional rights to keep arms was decided previously, primarily under McDonald and Heller and will not be further discussed here.
The constitutional protection to bear arms is the key to this decision. What did the Founder's mean when they wrote that you had a fundamental right to bear arms? Heller provided guidance indicating that to bear means to wear or carry upon the person. In specifying separate right to both "keep" (presumably within their homes) and "bear" arms (outside of the home) the Court concluded that the Second Amendment allows for people to carry firearms for the purpose of self defense outside the home.
That being the case, since the Hawaiian statute specifically forbade citizen's the right to open carry without a permit, and since these permits were never issued, the State effectively took away the citizen's Second Amendment right to bear arms. The court also noted that permits for concealed carry were practically never provided to the citizenry, so any manner of bearing of arms has been precluded by the State. They determined that that preclusion violated the Second Amendment.
At this point the case will be remanded to the District Court to make a determination taking into account the Circuit Court's ruling. As stated, this will likely be appealed to an en banc panel to make a further determination and, most likely, will head to the Supreme Court to make a final determination.
So, citizen's of the Ninth Circuit, you can't quite start walking around with your AR-15's just yet.
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