On Friday, February 8, 2019, the 9th circuit court of appeals issued an Order vacating a three-judge panel decision from last July. The panel held that there is a Second Amendment right to openly carry firearms (specifically handguns) in public. The case is George Young Jr., v. Hawaii et al.
The Young v. Hawaii appeal will now be reargued before an eleven-judge, limited en banc panel of 9th circuit active judges on the 9th circuit court of appeals. There is a possibility that one or both (or neither) of the two senior judges who sat on the three-judge panel will also sit on the en banc panel. Because they were on that panel, they are eligible to be one of the pool of judges (if they ask to be) from which the ten en banc panel of judges is drawn. Given that President Trump’s appointee, Mark Bennett, did not participate in the en banc voting, I will be surprised if he is chosen to sit on the en banc panel.
The State of Hawaii filed its petition for the appeal to be reheard before an en banc panel last September. The petition was granted 147 days later. The most recent en banc petition in a Second Amendment case to be reheard en banc was granted 159 days after the petition was filed. In my most recent article, I predicted that if the Young case was going to be reheard en banc in March then the petition would be granted within the next two weeks, give or take. The petition was granted the day after a petition to hear the National Rifle Association’s initially before an en banc panel was denied. The NRA case is Michelle Flanagan et al v. Becerra et al.
The NRA could file a separate motion to align its Flanagan appeal with Young v. Hawaii or file a motion to have its oral argument heard before the same en banc panel but it is doubtful any such motion by the NRA would be granted. If the active judges who sit on the 9th circuit court of appeals were even the least bit interested in the NRA case then they would have granted the en banc petition filed by the State of California. Instead, not a single judge even called for a vote on the Flanagan v. Becerra en banc petition.
The En Banc Panel is not Limited to Open Carry
Contrary to popular opinion, the en banc appeal in Young v. Hawaii is not limited to deciding whether or not there is a right to Open Carry. A prior en banc panel of the 9th circuit court of appeals issued in 2016 held that there is no right to carry a concealed weapon under the Second Amendment. Although that decision is binding on all three-judge panels and all Federal district courts in the 9th circuit, it is not binding on the en banc panel which will hear oral argument in the Young v. Hawaii appeal the week of March 25th.
The Young v. Hawaii en banc panel can overrule the prior en banc panel decision from 2016 (Peruta v. San Diego) as well as overrule any prior en banc panel decision or binding three-judge panel decision ever issued in the 9th circuit court of appeals.
The Young v. Hawaii en banc panel will decide whether or not there is a right to carry a handgun in public under the Second Amendment, openly or concealed.
The en banc panel could duck the Second Amendment question in its entirety and kick the case for some unrelated reason but I think this unlikely. There is no reason to go through all the effort of holding an en banc hearing just so they can decide not to decide.
As Mr. Young did not challenge a permit requirement, it is unlikely that the 9th circuit court of appeals will hold that the government can require a permit in order to exercise an enumerated, fundamental right if for no other reason than that question is not before the court and absent an actual “case or controversy” challenging the constitutionality of the permit requirement, the Constitutional questions to be decided by the en banc court won’t include that and are actually quite simple.
Mr. Young’s appeal is limited to the Second Amendment. The district court judge dismissed his lawsuit because it held that the scope of the Second Amendment is limited to the interior of one’s home. According to Senior District Court Judge Helen Gillmore in her decision dismissing Mr. Young’s case, with prejudice she said, “[T]he Supreme Court in Heller and McDonald establishes only a narrow individual right to keep an operable handgun at home for self-defense.” And therefore, “[The State of Hawaii’s] limitations on carrying weapons in public does not implicate activity protected by the Second Amendment.”
Mr. Young has Waited many Years for a Decision
District Court Judge Gillmore issued her decision on November 29, 2012. Mr. Young filed a timely appeal and here we are six and a half years later and Mr. Young is still waiting for a final decision from the court of appeals.
In comparison, the following month (December 2012) the 7th circuit court of appeals struck down the State of Illinois bans on carrying loaded and unloaded firearms (openly and concealed) in incorporated cities, towns and villages. From the date that lawsuit was filed in the district court to the date of the decision by the 7th circuit court of appeals was just 18 months and 29 days.
The Second Amendment Threshold Question
And so the long overdue threshold question to be decided by the en banc panel of eleven 9th circuit court of appeals judges is whether or not the Second Amendment is limited to “only a narrow individual right to keep an operable handgun at home for self-defense.”
If the en banc panel concludes that the Second Amendment is limited to the interior of one’s home then the district court judge did not abuse her discretion in dismissing Mr. Young’s case with prejudice and Mr. Young’s only recourse is to file a cert petition with the US Supreme Court.
Well, technically the losing side can file a petition for a full-court rehearing before all of the active judges on the court (currently 23) but the 9th circuit court of appeals has never granted a Full Court petition.
If, on the other hand, the en banc panel concludes that the Second Amendment does extend outside of one’s home then the en banc court will have to decide whether or not the denial of a permit for Mr. Young to carry a handgun, openly or concealed, outside of his home violated Mr. Young’s rights under the Second Amendment.
And if the denial of the permit did violate Mr. Young’s Second Amendment rights then is that violation permissible?
Whatever decision is made by the en banc panel and how it arrives by that decision is left to a majority of the eleven judges on the en banc panel. The Young v. Hawaii en banc panel has a blank slate in which to decide what methodology to use in coming to its decision and a blank slate on which to write its decision.
If the methodology adopted by the 9th circuit court of appeals is the same methodology used by the United States Supreme Court in deciding the District of Columbia v. Heller and McDonald v. City of Chicago cases then the en banc court will look at the “text, history and tradition” of the Second Amendment.
If it does then Mr. Young gets his license to openly carry a handgun in public.
If instead, the en banc panel of judges engages in judicial interest balancing, which the Supreme Court said in Heller and McDonald was not allowed, then anything can happen.
Alternatively, because Mr. Young’s lawsuit was dismissed at the initial pleading stage, the en banc panel could, if it decides that the Second Amendment does exist outside of one’s home, simply remand Mr. Young’s case back to the district court for a do-over.
What have the Other Federal and State Courts Said?
Nearly all of the Federal circuits to have Second Amendment “carry” cases come before them have engaged in judicial interest balancing by applying what they refer to as a “two-step” inquiry. Step One is to decide whether or not the conduct in question falls within the scope of the Second Amendment right and if it does then the court looks at the severity of the burden the law imposes on that right and applies what it calls the “appropriate level of scrutiny.”
The 1st, 2nd, and 3rd circuit courts of appeal have applied what they say was “Intermediate Scrutiny” in upholding laws which restricted handgun carry licenses to those persons who demonstrate a “heightened need” for self-defense when they have, in reality, created a new standard of review less than the lowest standard of review (Rational Basis) but claim that they are applying Intermediate Scrutiny to the laws being challenged. Why? Because the “levels of scrutiny” were invented so courts could uphold unconstitutional laws. The levels of scrutiny have eviscerated the First Amendment protections which is why the US Supreme Court in its Heller and McDonald decisions prohibited their use in Second Amendment cases.
The 1st circuit court of appeals held that the “core” of the Second Amendment right is limited to in and around one’s home. The 2nd circuit limited its holding to concealed carry because the plaintiffs did not challenge the New York State ban on openly carrying handguns in public for the purpose of self-defense. The 3rd circuit conflated the longstanding prohibitions on concealed carry with the relatively recent (by legal standards) New Jersey law which required a permit to openly carry a handgun as well.
The 4th circuit did something unique. Instead of “assuming without deciding” whether or not there is a Second Amendment right to carry a handgun in public “openly or concealed” it held that the Maryland licensing law is constitutional and did so without explaining why, other than to say it was bound by a prior 4th circuit precedent which, of course, said no such thing. That prior precedent involved a loaded, concealed handgun in an automobile in what might have been a sensitive place. A very different question than the one before the Fourth circuit court of appeals.
The 5th circuit upheld restrictions on the issuance of concealed carry licenses for persons under the age of 21.
The 7th circuit court of appeals did not explicitly apply a standard of review. That court held that something more than intermediate scrutiny would be required and held that the State of Illinois had failed to meet the burden of proof required to justify the Illinois bans. The 7th circuit also held that Illinois could ban concealed carry as per the Heller decision.
The 8th circuit court of appeals recently held that there is no right to concealed carry, not even by travelers while on a journey.
The 10th circuit court of appeals did not mince words. It unequivocally held that concealed carry is not a right under the Second Amendment and admonished the plaintiff for not challenging the Denver ban on Open Carry.
The United States Court of Appeals for the District of Columbia circuit held that the Supreme Court’s citation in Heller to State v. Chandler “shields a right to open carry.” That circuit “put aside” the longstanding prohibitions on concealed carry and held that the District of Columbia law which requires a special need to carry a handgun in public was unconstitutional.
D.C. law requires a permit to carry a handgun openly or concealed in public but the city will not give out applications to openly carry handguns and so the court held that based on its binding prior circuit precedents, the district must issue concealed carry permits.
The other circuits have not had a “carry” case to come before them but all of the circuits have cited the first paragraph of Section IV of the Heller decision which provided a non-exhaustive list of “permissible regulations” in upholding various gun laws, including laws not on the list.
The State of Maryland Supreme Court held that the Second Amendment is limited to the home. As you can see from the decisions above, there is no shortage of circuit splits with the State of Maryland.
The Florida Supreme Court, in a narrow 4-3 decision, held that Florida can ban Open Carry in favor of concealed carry and not because the Heller decision said this was permissible but because the 4 judge majority of the Florida Supreme Court simply said it did not like that particular holding of the Supreme Court.
The Florida Supreme Court in its decision created multiple splits for SCOTUS to resolve.
Unfortunately, the cert petition, in that case, was written by an NRA lawyer who did not even use the word “split” in his petition. We all know of the NRA’s longstanding opposition to Open Carry and so it was no surprise to me when I read the cert petition and no surprise to me that the cert petition was denied.
The Louisiana State Supreme Court has held, as per the Heller decision’s citation to its own 19th-century decision in State v. Chandler that concealed carry is not a Second Amendment right.
The above was not an exhaustive list. The point being, regardless of what the en banc panel of the 9th circuit court of appeals decides in Young v. Hawaii, there will be circuit splits and there will be splits with state courts of last resort. There will be no shortage of splits both in regards to the holdings and to the methodology used in deciding the cases.
Concealed Carry is Not a Right according to SCOTUS and the 9th Circuit en banc Decision in Peruta v. San Diego
The very first item on that list of permissible regulations from the US Supreme Court Heller decision, ahead of banning possession of firearms by felons and the mentally ill is prohibitions on the carrying of concealed weapons are permissible.
The primary reason why the US Supreme Court grants cert petitions is to resolve splits between the Federal circuits and state courts of last resort decisions on Federal questions. The Supreme Court rarely grants a cert petition which does not involve a circuit split. One would think that openly defying a US Supreme Court decision would require SCOTUS to correct the decision of the lower courts but it doesn’t.
This term, the high court made an exception and granted the cert petition in a case limited to New York City in which there is no circuit split. Fortunately, with Justice Kavanaugh having replaced Justice Kennedy, it seems there is a new Supreme Court math when it comes to granting Second Amendment cert petitions.
But so far that new math has not extended to granting concealed carry cert petitions. SCOTUS has already denied two concealed carry cert petitions this term. It seems that when then Judge Kavanaugh wrote his dissent in Heller II and when he testified before the Senate confirmation committee that concealed carry is not a Second Amendment right, he meant what he said.
The eleven judges who will sit on the Young v. Hawaii en banc panel know that whatever they decide, their decision will likely be reviewed by the US Supreme Court.
We won’t know who those eleven judges will be until the Monday of the week before the oral argument takes place, which is Monday, March 18th.
I have watched many oral arguments in the 9th circuit court of appeals. In my opinion, there are only a few active judges who don’t care if their decisions are eventually overturned by SCOTUS. The late 9th circuit Judge Reinhardt was infamous for not caring if his decisions complied with binding US Supreme Court decisions saying, “They can’t catch ’em all.”
There is no way of knowing how long it will be before there is a decision issued after oral argument takes place. It could be a few months or so, it could be a year or more.
And if the US Supreme Court grants a carry case before the en banc panel issues its decision in Young v. Hawaii then we will probably not have an en banc decision until SCOTUS issues its decision in that case.
Meanwhile, Mr. Young and the rest of us are going to have to wait a little longer.*
*I, the author, have a Federal lawsuit pending before the 9th circuit court of appeals which challenges California’s bans on openly carrying loaded and unloaded firearms in public for the purpose of self-defense. Charles Nichols v. Gavin Newsom, et al (formerly Charles Nichols v. Edmund G. Brown Jr., et al). My appeal has been fully briefed and argued. The decision in my California Open Carry appeal depends upon what the en banc decision in Young v. Hawaii says. And so I wait as well.