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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.

 

John Velleco is the Executive Vice President of Gun Owners of America and Gun Owners Foundation.  GOA a grassroots lobbying organization with more than two million members and supporters nationwide.

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36 COMMENTS

  1. “In fact, Hawaii’s form of government had been premised on the notion that the king — not the people — was sovereign.”

    (The Left) “wants to put you y’all back in chains.” -Joe Biden-

    • The court is catering to Gun Control which once again is an agenda rooted in racism and genocide. Gun Control in any shape or form is an agenda that walks hand in hand with slavery, segregation, Jim Crow, lynching, Eugenics and other race based atrocities attributed to the democRat Party.

      But by all accounts the aforementioned doesn’t register with certain self described gun owners on this forum. In a recent article about the CO shooting a pasty mouth Gun Control twitter twit called the NRA, gun owners, etc. “Supremacists” The author of the CO topic used “Subaru” to described such pasty mouth slanderous twits and forum fools trip over each other to defend the masculinity behind them owning a Subaru. They took the author using Subaru personally all while giving the twit calling everyone Supremacists a complete pass.

      Then you have politically inept twerps on this forum holding hands with democRats to slander and libel POTUS DJT over bump stock contraptions.. One clown called it, The Trump Doctrine.” Rest assured that twerp heard some gun talking bozo with 300,000 incomplete sentence posts say Trump Doctrine and he took it and ran with it like it was gospel. Even after I explained that if POTUS DJT did nothing it would have been placed in the hands of a knee jerk congress to become law and such items as Binary Triggers would not be around to be advertised on this forum, etc. I also advised the clown to contact Allen Gottlieb if he had any need for further questions.

      Sad part is a couple of like minded clowns came to his rescue. So when you wonder why courts are giving an Agenda That Is Rooted In Racism and Genocide Standing look no further than the politically inept azzhats on this forum.

      • Are you having troubles in life? Bills to pay, a dead end job and problems with the wife? Well, take heed. Things could be worse. You could be the poor geezer what lays down with this miserable, hate filled harpy.

        • “Things could be worse. You could be the poor geezer what lays down with this miserable, hate filled harpy.”

          Strange, “miserable and hate-filled” is all you ever seem to write in the comment section of TTAG.

          At least she has someone who loves her to sleep with, unlike an autistic bitter and hate–filled loser like you… 😉

  2. Yes the USSC should hear a 2A case & put the constitution in the spotlight it should have had all these years since the founding fathers wrote the constitution.
    But being wishy washy as they have been on the 1A & 2A in the recent past, I see them just refusing to address the problem,

    • a lot of people thought he would be better than this….they should have listened more closely to what he was actually saying…the signs were all there….

    • “Why did I vote for Biden?”

      As Forrest Gump said – “Stupid is as stupid does.”

      Ergo, ‘enuf’ is stupid… 😉

  4. In the Dred Scott versus Maria Sandford case Supreme Court case. A black man said he was not a slave of a white woman. But the Chief Justice of the Supreme Court said otherwise. Roger B. Taney, stating that if Dred Scott was indeed a free man he could own and carry a gun. And travel wherever he pleased with it. Therefore he was a slave. Because slaves can never own guns. They can only be given a gun for a designated Time by their master.

    And be closely supervised with it.

    • “Roger B. Taney, stating that if Dred Scott was indeed a free man he could own and carry a gun.”

      ‘Dred Scott’ was reversed not long after, Chris.

      And reversing ‘Dred Scott’ is how they will destroy the 2A. To the sound of cheering…

      • “And reversing ‘Dred Scott’ is how they will destroy the 2A. To the sound of cheering
”

        Uh….that won’t be cheering. It’ll be the sound of Patriots charging. For 250 years, Veterans and Patriots have put too much on the line and paid too high of a price on foreign soils defending American Freedoms/Rights/Liberties and the traditional American way to allow it all to be taken away from within on American soil.

        “Everyone must determine for themselves what level of tyranny they are willing to tolerate.” – Some old white guy. Obviously, Veterans’ and Patriots’ limits have not been reached yet. So the tyrants continue merrily onward. Newton’s Third Law of Motion summed it up…..”A body in motion continues in motion until acted upon by an outside force….” Freedom is awaiting Patriots to be that force.

        Even if they erased the Second Amendment tomorrow, that would not negate Americans’ right to keep and bear arms. That right is merely enumerated, recognized by the Second, as a right endowed to man by his Creator. The Second merely puts politicians, government on notice… “…..shall not be infringed.” They may honor and abide, or ignore at their own peril. King Georgie’s redcoats….been there, done that. How did that turn out for them??? The outcome is left to Patriots to decide, as once before. Just pondering…..Our Founding Fathers would already have been finished shooting a second time. The longer Patriots abdicate, the more will have to be taken back, at higher cost. Because they have not been made believers, the tyrants sitting for decades in The Command Post of America don’t think Americans are serious about our Freedom/Rights/Liberties.

        Are we????

        • It’s unfortunate, but very true, that the Hebrew God doesn’t do much criminal or civil law enforcement in this world; You’ll have to wait for the next one if you want Him ensuring that you have what you call ‘rights.’
          Tomorrow, if President Xi BidenHarris signed an executive order stating that the 2nd Amendment was null and void and that all citizen-owned firearms not in government hands must be turned in to a nearby post office under severe legal penalties, God wouldn’t lift a finger to do anything about it until Xi BidenHarris showed up at the Pearly Gates, and by then it would be a bit late.
          God may have endowed you with ‘rights,’ but only other human beings–or you yourself–can assist you in keeping them. After all, He didn’t write the Bill of Rights; Men did, under divine inspiration, naturally–but they were still just men, the same sort of human beings who could eliminate your ‘rights’ with the wobbly scrawl of a senile old fool’s pen.

      • Any case involving the 2nd Amendment especially one that falls under the carrying of a gun. Such as in New York and Hawaii. Those cases are a repeat of the Scott v Sandford case. Because if the high court determines you don’t have a right to bear arms. Then you really are a slave. You’re not a slave to some individual like Scott was to Sanford. You’re a slave to the state. Which has military and police who openly bear arms. And you as a private citizen can not. According to the court.

        It may take a while for the majority of white people in the society. But they’ll figure it out that they are now indeed slaves to the government. Who are disarmed slaves.

        Now you say you still have your guns even after the courts made its decision, that you don’t have a right to possess guns. Well if you can’t bear your guns outside of your home. That is the same as not even having them. Because if you use one of your guns to defend your life the police will certainly come and arrest you. And this has already happened in Connecticut. Where a man used a gun to defend himself in his own home. And they arrested him because he used his AR-15 to defend himself.

  6. I wholeheartedly agree. As a current resident of Honolulu, where the former HPD police chief and his high-ranking prosecutor wife are looking at 7 and 13 years respectively in federal prison for conspiracy and bank fraud (4 other HPD officers were also convicted in connection with this case), I certainly do not feel safe here. I am not a vigilante. I am not about intervening in every squabble between individuals or stopping a shoplifter. I just want to be able to protect myself and my family from the ever increasing crime against honest citizens by the growing number of drug-crazed individuals living on the street. The police officers both here and in most localities in the United States are overwhelmed by the increasing hostility towards them by the public and are also affected by the Ferguson Effect and the now normal behavior of convicting them in the court of public opinion or the use of mob justice. The result is that the police act more like firefighters, responding to 911 calls for service instead of being proactive by patrolling neighborhoods and being a visible deterrent to criminal activity. The issue of releasing convicted inmates (both felony and misdemeanor) from state prison due to COVID has further compounded the problem. Therefore, who is going to be there to prevent someone from robbing or hurting me or my family? Robberies, car jacking, home invasions, auto theft, and car break-ins are on the increase here. The local one-party rule of the Democratic politicians all have their heads in the beach sand of Waikiki thinking that these are isolated problems. It is not; it is exponentially growing state-wide.

    When seconds count, HPD and the other county police departments are minutes away.

  7. Why on earth would Hawaii’s monarchy or history before coming under the US Constitution be remotely relevant? Who cares? They are a STATE under the CONSTITUTION now, I don’t give a flip what they were back then.

  8. Kinda like this decision. A talented lawyer could make the case that since there are longstanding, historical and traditional forms of government that do not acknowledge any form of citizen sovereignty, the entire US Constitution is an aberration that cannot be relied upon to assert the rights of individuals over the privileges of government, and is therefore, in all respects, null and void. Government can not only remove privileges granted to the public, but can issue bills of confiscation of wealth and property of living individuals, and estates, of anyone who ever challenged the rightful establishment of government control over the populace.

  10. Biden will be replaced with Harris in a few months. The Article 25 discussion on Trump was just a cozy acceptable warmup for the real deal. Either Biden will resign or be forced out. A self-declared Harris President-For-Life dictatorship will be the real nightmare.

  11. David Walters…….Ala the movie “Shooter” with Mark Walberg????
    Saw a decal on the back of a Jeep a while back. Stalked it for miles until I could write it down. Thought you might share with your “somewhere, expert……” 🙂 🙂 🙂

    A Patriot Rifleman’s Prayer:
    “God, you know that veterans willingly put their lives on the line to defend
    the Freedom, Liberty, and Rights which you so graciously gave
    divine inspiration to our Founding Fathers to memorialize and pass down to us.
    God, I pray that the following need never comes to pass.
    But, politicians keep working so hard to pervert and destroy our
    “One nation under God, with Liberty and Justice for all.”
    God, grant me the serenity to tolerate the politicians I should not shoot…..yet.
    The courage to accept when that time is at hand to shoot the ones that so earned it.
    And, the wisdom to accurately dope the wind to once again make each shot.
    In your name, I, your servant, humbly pray……..THANK YOU, AMEN”

  12. “Biden will be replaced with Harris in a few months. ”

    That would eliminate Harriss’s chances for two full terms as president in her own right. Biden needs to hold office for at least two years and a day.

    Besides, Biden has already been replaced, and he might not even know it.

  13. Sam I Am….are they are now, his handlers will continue to “prop him up and animate him” for “2 years and a day.” 🙂 🙂 🙂

  14. “…his handlers will continue to “prop him up and animate him” for “2 years and a day.”

    Certainly. Wonder if they fear him not waking up one day, soon?

  15. Freedom that’s good for criminals = “positive freedom.”
    Freedom that protects law abiding citizens = “negative freedom.”

    That’s your leftist calculus lesson for today…

  16. Sam I Am…..”Certainly. Wonder if they fear him not waking up one day, soon?”

    Justice Scalia style……. Ole Joey, he was senile….he just forgot to breathe…..

    President KamakHo becomes really President KamalHo….

  17. “That sounds vaguely familiar–you are describing an autarchy, or a similar totalitarian regime. Rather like the current Occupying Power that rules from Washington DC, is it not?”

    True, but with elegance, Ă©lan and more pizzazz.

  18. Hawaii was a sovereign kingdom and taken over to be used as a military stronghold. I wonder if all the anti gun stuff there has to do with the fact that the natives hate Haole‘s…

    Then again I don’t think they want anyone in the lower 48 armed now either…

  19. 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 any unloaded firearm for the purpose of lawful self-defense is the question my three-judge panel will have to decide. Judge Bybee is one of those three judges.

    “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.

    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 petiton 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 Califoria 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 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.

    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 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.

  20. Good to hear from you again, Charles. Your “wrap-up” is the status of your appeal, vis-a-vis other appeals is clear and concise. Thank you for this update.

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