Federal appeals court says states can restrict open carry of firearms

A federal appeals court on Wednesday ruled that states may restrict the open carrying of guns in public, a major ruling that is certain to be appealed to a US Supreme Court hostile to limits on the Second Amendment right to bear arms.

The 9th US Circuit Court of Appeals in a 7-4 ruling upheld Hawaii’s limits on openly carrying firearms in public, rejecting a challenge from Hawaii resident George Young, who had sued the state for denying his bid to carry a handgun outside the home.

“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” Judge Jay Bybee, a nominee of George W. Bush, wrote in the majority opinion.

The ruling comes at a time of heightened national discussion over the scope of the Second Amendment following mass shootings in Colorado and Atlanta this month. The White House is weighing whether to issue a number of gun safety measures through executive action even as they publicly press Congress to move ahead on legislation aimed at curbing violence.

Hawaii’s law specifically bans residents from openly carrying firearms if they don’t have a license to do so. Licenses are given only to residents who can prove they need a firearm because of “reason to fear injury” to “person or property.”

Bybee wrote that “the contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly.”

“Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square,” he continued.

“History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces.”

Judge Diarmuid O’Scannlain, dissenting along with three other judges, said the ruling makes the Second Amendment an “inkblot.”

“The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms,'” O’Scannlain wrote.

“Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self defense in any other place.”

If the Supreme Court does address the case, it would bring a rare ruling from the high court on the scope of the Second Amendment, an issue that it has dodged since issuing two landmark opinions in 2008 and 2010.

Gun rights advocates and even some of the justices themselves have expressed frustration that the court has declined to further define the scope of the right as lower courts across the country have upheld restrictions.

Neal Katyal, a former top lawyer in the Obama administration who had argued the case for Hawaii last fall tweeted, “It’s really a victory for the State of Hawaii” and “common sense Gun regulation everywhere.”