The 9th circuit en banc decision in Young v. Hawaii came close to saying that there is no right guaranteed by the Second Amendment to bear arms outside of the home but it did not go that far.
Whether or not there is a right to openly carry any loaded and unloaded firearm outside of our home is a question that will be decided by the three judges assigned to my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom, et al.
The en banc opinion in Young v. Hawaii limited the scope of its opinion to “small arms capable of being concealed.” The opinion does not define “small arms” or “capable of being concealed.”
Did the opinion limit its scope to arms that are easily and ordinarily carried concealed or did its opinion extend to all “concealable” firearms as defined by Hawaii law? We don’t know. We do know that the opinion upheld a “good cause” requirement for a permit to openly carry a handgun in public. And we do know that the opinion did not decide whether or not there is a right to openly carry firearms that are neither small nor concealable, such as rifles and shotguns.
Whether or not there is a right to openly carry any loaded firearm, or an unloaded firearm for the purpose of lawful self-defense is the question my three-judge panel will have to decide. Judge Bybee, the author of the en banc opinion in Young v. Hawaii is one of the three judges assigned to my panel.
Quoting from the Young v. Hawaii en banc Decision:
“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. We need go no further than this, because the Hawai’i firearms licensing scheme Young challenges only applies to “a pistol or revolver and ammunition therefor.”” Young v. Hawaii en banc Slip Opinion page 97. (emphasis added)
The moment the Mandate is issued in Young v. Hawaii, my appeal is once again under submission for a decision. There could be an opinion in my appeal issued the very same day. If Mr. Young’s attorneys do not file a petition for a Full Court rehearing or do not file a motion to stay the issuance of the Mandate then the Mandate will be issued on Wednesday, April 14th.
For a decade I have been criticizing the lawsuits that limited the scope of their challenge to handguns, in particular, the concealed carry of handguns or permits that would allow one to carry a handgun concealed.
One of the reasons I have given is that there is a long history, both in the United States and in England, to prohibitions on not just concealed carry but to the possession and carrying of concealable weapons.
As I pointed out in the oral argument to my appeal, Charles Nichols v. Gavin Newsom, et al., some states treated handguns that are easily and ordinarily carried concealed as dangerous and unusual weapons, and that my lawsuit is not limited to handguns, I seek to openly carry long guns as well. There are no licenses available to the general public in California to openly carry a long gun. Licenses to openly carry handguns are prohibited by state law from being issued in counties with a population of 200,000 or more people.
My three-judge panel can’t uphold “good cause” or any other licensing requirement for licenses that do not exist. Unlike California State courts, Federal courts are prohibited from rewriting laws.
Moreover, California law prevents those of us who live in incorporated cities from carrying any loaded firearm, and any modern unloaded firearm, in the curtilage of our homes and on our private residential property.
I have mentioned in the past that Young could lose and I could still win for the reasons I gave above and in my lawsuit. Now we will have to wait for a decision in my appeal to see whether or not there is a Second Amendment right, or a 14th Amendment substantive due process right* independent of the Second Amendment, to openly carry a loaded firearm or a modern unloaded firearm outside the interior of our home.
If there is a right then I win because the government is not allowed to ban a right simply because the law also bans something which is not a right.
9th Circuit Caused a Split
This en banc decision in Young v. Hawaii has created an intractable split with the 7th circuit court of appeals and the District of Columbia circuit court of appeals. It has also created a split with every Federal Circuit Court of Appeals because those circuits have either held or assumed that the right to keep and bear arms extends outside of our homes, and that right includes concealable firearms. The majority of the judges in this 7-4 Young v. Hawaii en banc opinion has held that there is no right to the carrying of concealable weapons, regardless of whether or not they are carried openly or concealed, in public. That is a unique view not shared by any other Federal circuit or state court of last resort that I am aware of.
The Young v. Hawaii 9th Circuit en banc decision means that the Flanagan v. Becerra appeal loses, and loses even if one were to construe it as a “carry” lawsuit because the NRA/CRPA’s Flanagan lawsuit is limited to concealable firearms, and the plaintiffs do not have standing to challenge California’s Open Carry bans even if they had claimed that California’s Open Carry bans are unconstitutional (they didn’t). None of the plaintiffs articulated any plan, let alone a concrete plan, to violate California’s Open Carry bans. All but one of the natural-born plaintiffs disavowed any intention or desire to openly carry a firearm, anywhere. And nowhere in the record will you find that the Flanagan plaintiffs claim that they were prohibited under California law from carrying a loaded or unloaded firearm in the curtilage of their home or on their private residential property.
I do not know what Mr. Young’s attorneys will do next. Their options are to file a petition for a Full Court rehearing or to file a cert petition with the United States Supreme Court. The press has quoted Young’s attorney, Alan Beck, as saying he is going to file a cert petition. I emailed both of Mr. Young’s attorneys suggesting that they file a Full Court petition but if they don’t, I asked them to file a motion to stay the Mandate pending cert. Neither of them responded to my emails.
Note For Lawyers
* For the benefit of any lawyers who might be reading this, my Complaint also states a procedural due process claim but given that there are no licenses available for me to appeal the denial of a license. As stated in my Operative Complaint, I asked for both an application and a license to openly carry a firearm and was denied, not because I don’t have “good cause” but because state law prohibits them from being issued. I also stated that there was no administrative appeal available to me and that it would be futile to apply to any and all county sheriffs and police chiefs in the state for a license to openly carry a handgun. That was one thing the district court judge agreed with me, and since the State of California did not challenge that on appeal, the state has waived it.
I have been banned from YouTube. YouTube will not tell me why. I suspect it is because I said that the lawyers the NRA hires for its California Second Amendment lawsuits are a bunch of incompetent boobs, and they filed a Complaint. I further suspect that YouTube took one look at the advertising revenue the NRA brings in for it and the virtually nonexistent advertising revenue generated by viewers of my channel, and simply pulled the plug.
You can watch my “banned from YouTube” video channels at these other websites and judge for yourself: