By John Velleco
The Ninth Circuit’s contempt for the Second Amendment is no secret. As one of Gun Owners of America’s other recent briefs explained: “[p]ractically speaking, the Ninth Circuit has never found a Second Amendment violation it won’t countenance.”
Just this week, the Ninth Circuit once again lived up to its reputation, handing down its opinion in Young v. Hawaii and, in effect, striking the word “bear” from the phrase “keep and bear arms” in the Second Amendment, and ignoring the arguments that Gun Owners of America made in our amicus brief in the case.
The Young case involves a challenge to Hawaii’s onerous requirement that a person wanting to openly carry a firearm in public must demonstrate an “urgency” or particular “need” to do so. In its opinion, the Ninth Circuit has extended its infamous Peruta decision (deciding there is no right to concealed carry outside the home), to now claim that “[t]here is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.”
Although quoting the language of the Second Amendment in passing, the Ninth Circuit’s opinion never stopped to consider what the Framers meant by “bear arms.” Rather than consider the constitutional text, the court embarked on a 77-page “canvassing [of] the historical record” to justify its decision that there has never been a general right to carry firearms in public.
Under the Heller decision by Justice Scalia and the Heller II dissenting opinion written by then-Judge Kavanaugh, courts are to use the “simple Heller test” of “text, history, and tradition” when analyzing Second Amendment cases. Courts certainly may use the “historical record” to understand and interpret the text — but never as an excuse to ignore or rewrite the text.
Yet that is precisely what the Ninth Circuit did in Young. The Second Amendment unambiguously protects “the right of the people to … bear arms,” and no amount of “historical” precedent can undo that textual protection.
The particular history relied on by the Ninth Circuit is also shocking. The court detailed the history of firearm restrictions in Hawaii before its admission to the union, and even before its status as a U.S. territory which began in 1898. The Ninth Circuit concluded, based on that ancient record, that Hawaii’s complete prohibitions on the bearing of arms are “longstanding” and thus “outside the historical scope of the Second Amendment.”
The Ninth Circuit apparently missed the arguments made in GOA’s amicus brief, where we pointed out that “Hawaii’s carry ban is, indeed, ‘longstanding,’ dating to the islands’ time as a monarchy, when sovereign kings and queens denied their subjects access to arms.” In fact, Hawaii’s form of government had been premised on the notion that the king — not the people — was sovereign.
Thus, Hawaii’s rulers denied the possession of arms to their subjects in order to keep them subjugated and defenseless. As GOA’s brief noted, “[t]his is hardly a noble pedigree to apply when determining the right of a sovereign people to keep and bear arms as a bulwark against tyranny.”
Of course, the Ninth Circuit’s inverted view of the Second Amendment is not surprising, as the court does not view the right to keep and bear arms as vital in protecting Americans against tyranny. Rather, according to the court, “among the fundamental privileges of citizenship in the United States is ‘protection by the government.’”
That’s quite a claim since, as the Supreme Court made clear in Heller, the purpose of our rights is to give Americans protection from the government. See Heller at 598, 600.
Audaciously, the Ninth Circuit cites William Blackstone for this claim — that we must give up our liberty to the government in exchange for security. But Blackstone never said that it was the job of government to provide physical “protection,” but rather to “protect … the rights of each individual member.” Blackstone, Commentaries at 47-48.
The Ninth Circuit twists Blackstone’s words to claim the opposite of what he said, alleging that the government can take away “the rights of each individual member” in exchange for providing them physical “protection.”
According to the Ninth Circuit, then, we should all give up our right to carry firearms in public as a form of “allegiance to the government,” in exchange for the government’s promise “to defend the public square.” Yet courts have for decades told us that “ nothing … requires the State to protect the life, liberty, and property of its citizens….” Deshaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 195 (1989).
Gun owners are painfully aware that they cannot rely on any government to protect them. Rather, history has shown time and again that the right to keep and bear arms is critical to protect the people from their governments.
The Ninth Circuit’s paternalistic opinion ignores the Second Amendment’s text and the Supreme Court’s Heller decision, which explained that “bearing arms” unambiguously means to “and wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict….”
It is high time for the five conservative judges on the Supreme Court to put an end to the Ninth Circuit’s decades-long vendetta against the Second Amendment. The Young case presents an excellent opportunity.