JUDGE DIARMUID O’SCANNLAIN Second Amendment Hawaii Open Carry
courtesy thinkprogress.com and AP

“The author of the majority opinion, Judge Diarmuid O’Scannlain, walks the reader through a comprehensive analysis of early-American and post–Civil War gun-rights debates (including the racist history of Reconstruction-era carry limitations on black Americans) and concludes that while the Second Amendment may not protect a right to concealed carry, it most definitely protects a right to carry. The practical effect of the decision (especially combined with other case law) demonstrates that the state has a choice — protect a right to concealed carry, protect a right to open carry, or protect both. But if you block a citizen’s right to carry entirely (or limit the right to a “small and insulated subset of law-abiding citizens”), then you violate his right to “bear” arms.” – David French in The Ninth Circuit Shows Us How to Protect Gun Rights [via nationalreview.com]

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59 COMMENTS

  2. The Ninth Circuit? There must be a catch? I suspect an en-banc review will find a way to overturn this decision.

      • Wut? It’s identical to Peruta (because it’s written by the same guy), before Peruta was overturned en banc & ignored by SCOTUS just like this one will be.

        • Iirc/

          En banc peruta they dismissed it without considering open carry being made illegal – that the argument wasn’t presented so it wasn’t considered. They didn’t want to have to rule on it so they kicked it out.

          Of course the group who appealed had no standing to appeal. Like Oberfeld. But they didn’t rule on that. Oberfeld didn’t actually sanction same
          Sex marriage. It just said here was no standing so it kicked it back to the 9th who Ruled same
          Sex was a ok.

          Peruta should have raised a standing issue. San Diego county wasn’t going to appeal it.

        • Lawbob: the State moved to intervene after the sheriff dropped out. That motion was strongly opposed but ultimately granted because the state had a significant interest in the outcome. It was bogus because the state had, in the lower court, argued that it was not a proper party because the case did not attack the CCW law, only the exercise of the sheriff’s discretion in granting or denying licenses. Also notable, the state’s petition for rehearing en banc was denied. Instead, the case was taken up when one of the judges asked for the court to consider the matter (as is permissible under court rules). That judge is unidentified, but everybody believes that it was the recently appointed chief Judge of the Circuit, who just so happened to have been the dissenter from the 2-1 panel decision, and who, it should be noted, penned the majority opinion for the en banc ruling rejecting the existence of a right to conceal carry. (As the sitting Chief Judge, he was automatically a member of the 11 member en banc panel.)

    • My guess is this is a way to stop the case from going to the SC. Basically Hawaii and the rest of the jurisdiction of the 9th circuit bite the bullet so that the plantiff does not continue the case, and a right to carry is not recognized nationwide. They can also overturn their own decision at a later date when it would be advantageous to do so, whereas they would have to recognize a SC decision. Maybe I’m just a skeptic though.

      • There’s not really a bullet to bite. ID, WA, OR, AK, NV, and AZ all have permitless open carry and shall issue concealed carry. This ruling would only affect CA, HI, and the island territories.

        Also, by the time this would make it to SCOTUS, I suspect they’d want to hear it.

        • ID, AK and AZ require no permit to carry concealed and none for open carry. WA requires a permit to carry concealed in a city only and no permit for open carry.

        • Odd how a citizens constitutional rights can be different from state to state when we all have the same constitution. Need to make some changes in the black robes.

        • Especially when you consider the privileges clause in the 14th amendment. Really MacDonald should knock down all shall issue and “Assault Weapons” laws.

        • Alabama is also an open carry state, but you have to have a permit to conceal carry and if I’m not mistaken it is a Sheriff may issue in the county I live in. I believe it should be a shall issue if the applicant passes the background check.

    • This wasn’t a decision by the ‘full’ Ninth Circuit and it contradicts a previous partial Ninth Circuit ruling. So the next step is to take it before the entire Ninth Circuit panel before it can go on to the Supreme Court.

      Apparently there’s at least two justices on the Ninth’s bench who don’t despise the Constitution.

      • does this conflict with the en banc reversal of Peruta? I thought that said there was no right to concealed carry, while leaving open carry, well, open as an issue

        • It reads that there’s no right to concealed carry, but there is a right to carry open OR concealed. Peruta rules there’s no right to concealed carry PERIOD. So that would leave me to assume that to abide by both rulings then open carry must be allowed, if by license so be it.
          That being said, I believe en banc will reverse this similar to Peruta.

        • You would have to read the opinion. In its discussion, O’Scannlain talks about the necessary conclusion that a right to bear must be allowed in some fashion. CCW can be banned, as Peruta concluded, but that means there must be some alternative means to carry openly, otherwise the right is lost. Peruta II specifically excepted open carry from its discussion on rather shaky procedural grounds. In summary, open unloaded carry was still legal when the case was decided int he trial court, and therefore no issue as to that was raised. It was a narrow attack on the sheriff’s exercise of discretion. However, while the appeal was pending, the State banned open carry (in all cities and towns), such that there was no way to “bear” without a ccw. The original panel recognized this fact in concluding that the existence of a right meant that the State had to allow carry in some fashion–and if that meant CCW, it also meant “shall issue.” Judge Sydney Thomas dissented. Leading the charge on the en banc, Thomas found it necessary to narrow the scope of review in order to reach his conclusion that there was no right to ccw, intentionally refusing to consider the fact that it was illegal to open carry, leaving that question to another day. The en banc decision suffers serious flaws and is obviously completely political.

    • My guess is Hawaii won’t ask for en blanc being afraid of the case going to the supreme court. If that happens, I believe with a Justice Kavenaugh on the court, they will rule in favor of both oc and ccw. And Hawaii doesn’t want to be told they shall issue ccw permits. I also think the only reason the supreme’ court refused to hear the Peralta case is they didn’t have the votes and didn’t want an anti 2A ruling coming from the high court. This time it will be different.

      • I’m not sure that makes the most sense. Hawaii will choose the course of action that they believe pushes the inevitable result the farthest down the road. There are quite a few possibilities, the most obvious one to me seems that the en bank hearing would very likely go their way. That would then throw the ball back to the original plaintiff once again to appeal further.

        If they don’t petition for an en banc hearing, then this current ruling seems to say they have to implement some sort of a “may issue” scheme, which may or may not satisfy the plaintiff, probably depending on whether he gets a permit out of it. If he does get one, then the case goes away, but now with a way to get a permit in Hawaii – not their desired outcome. If he does not get one, they do it all over again, and spend several more years to determine that the “may issue” scheme they implement is too restrictive, after which THEN it might have a chance to reach SCOTUS.

        • You may be right, I hope not. I would love kalifornia to get OC shoved down their throat and then watch them go kicking and screaming about wanting to withdraw from the US again. I’d pay to see it.

        • Agreed, The decision does not require “shall issue” open carry permits, only permits that are available to all law-abiding adults and not just security guards. As things now stand, most police departments will not even give someone an application for a ccw, and they automatically reject anyone who is not going to be a guard of person or property (i.e., uniformed). There is still enough room in the decision to allow the state to enact discretionary issuance, and it will take a number of years for the plaintiff to be able to gather enough evidence that permits are being issued (if at all) on a discriminatory basis, i.e., that the average citizen has not been able to establish “good cause” to carry.

          The same question is currently pending in the Nichols case which I suspect is before a different panel. I wold bet that if the decision goes against the State, the state will mere;y return to “open unloaded” carry, with possibly a shall issue rule supplemented by a 16 hour training requirement, i.e., the same qualifications required of an applicant for a ccw. The State Legislature is very much against people going around with guns strapped to their hips, but at the same time, it is so anti-gun that it cannot stand the thought of people getting ccws either. There is one state representative who has made it his goal in life to eliminate ccws because he believes that the Sacramento Sheriff (who is “virtual shall issue”) is issuing far too many ccws.

    • It’s a 3 judge panel and even though most of the judges are liberal (clinton appointed a ton of judges to the 9th, there are still 9 clinton judges on the ninth out of 29 total. Bush has only 6 and obama 7. There are 5 clinton judges who retired, so clinton got to appoint 14 of the 29 judges on the court at one point, that’s why it’s so liberal)

      The panel who decided this case were a Reagan appointee, W Bush and a Clinton one. Guess who was the dissent in the 2 to 1 decision. I believe the 3 judges in the peruta case were a 2 to 1 GOP appointed. I know Kozinski the author was GOP and the bitch who lost and pushed for the en banc, sidney thomas was a clinton appointee.

      Who the judges are in these matters greatly.

      • From what I’ve read, the dissenter in this case was a Nixon appointee. Nixon was no fan of guns wither, you may recall. Sidney Thomas is male. And the Presiding Judge of the Ninth Circuit. He was the dissenter in Peruta 1 and the author of the en banc decision in Peruta
        II. Judge O’Scannlain was the author of Peruta I and this case.

        • I believe the dissenter in this case was clifton who is a clinton appointee. There are very very few judges from carter, ford or nixon around still.

  5. “The practical effect of the decision (especially combined with other case law) demonstrates that the state has a choice — protect a right to concealed carry, protect a right to open carry, or protect both. But if you block a citizen’s right to carry entirely (or limit the right to a “small and insulated subset of law-abiding citizens”), then you violate his right to “bear” arms.” “

    My choice would be the States Protect both and dump CCW licensing altogether. [CCW permits are still a bogus form of Government intrusion and de facto registration of the gun owner and the gun(s).] Prohibited persons would still be in violation of existing laws if they carried at all, and all others would be free to do as they choose.

    Reality is that some States will not abandon “CCW Permits” and force people to Open Carry in the hope that will deter at least some open carriers. Otherwise, make all States “shall issue”, an acceptable reason to obtain a “CCW Permit”…”because I prefer not to Open Carry for personal and tactical strategic reasons…” and minimize the process/costs to obtain a “CCW Permit”.

    This will take some time to work itself out. I am not polishing up my holsters…yet.

    • A lot of popular states like to stop people from open carrying because they claim they don’t want tourists to be afraid of the big bad armed American (especially if they happen to be black). If there was no CCW permission slips, people can easily go from open to concealed when they feel the need; they can also carry in their vehicle without having to constantly take their gun out of their holster to satisfy the law.

      Criminals conceal carry without permission…

    • My preference is the States protect both Open and Concealed carry, as Constitutional Carry.
      But as a Libertarian I feel I must support the property owners right to an action I consider as bright as a three and a half watt filament bulb..
      Posting a “gun free” killing zone sign.. But would link this to a CCW permit backed on background check, training, and range qualification.. whose only purpose would for nonhabital violators be civil fines, or actual exemptions from the affects of GunFree signs destroying their utility as a killing zone for blood predators.

  6. It’s nice to see the judge went into some of the history of the right, it will be helpful in counteracting the Leftist’s current strategy of having published multiple articles and books attempting to ‘prove’ there was no history of gun ownership and carry in the nation’s founding days…

    • The Heller decision recounted the history (pps 7-63), so it’s already available from a higher, more authoritative court.
      History and precedent can only supersede feelz if you’re inclined to let them.

  7. My takeaway from this is that Hawaii MUST allow some form of licensed carry and take applications for concealed carry; nothing says they have to APPROVE the applications or even PROCESS the application. This is throwing smoke, not a victory.

    • SurfGW,

      This three judge ruling from the 9th Circus forbids all possible schemes that the state would use to effectively prevent people from carrying firearms — including de facto bans.

      Unless the 9th Circus issues a stay for an en banc hearing and then reverses this ruling, this is happening whether or not Hawaii’s overlords like it.

      • Basically what happened in Illinois. The feds said you either have a working permit system in place or you go constitutional carry in 3, 2, 1.

    • DC attempted to set up a carry system where they approved no one after losing in court. The court was not amused. They will not be allowed to do a defacto ban

      • Not precisely correct: D.C. had approved 16 permits out of a couple hundred applications.

  8. So if you are going to let Sean Penn have a permit and guns even though he’s a felon you have to let the divorced mom who’s terrified her ex will kill her.
    Nicole Simpson comes to mind.

  9. Since the Bill of Rights doesn’t specify any restrictions and states “shall not be infringed” it would be unreasonable to pretend there is a limitation on your human/civil right of self preservation. If you argue against a specific way of bearing, you would have to argue what form of “keep” and what you can “keep” as well. Seeing the intent of the creators of the U.S. government, the Constitution doesn’t limit the people, it limits the government. The people can bear arms anyway they see fit and they can keep whatever they want.

  10. The right to concealed carry is protected by the 4th Amendment. I.E., nobody has any shittin’ business what you have on your person.

  11. DUH..s this mean I can open carry in ILLinois?! Swell! I’ll put that to the test😎😄😏

    • Former Water Walker,

      No, this decision does not apply to Illinois. It only applies to the 9th Circuit Court of Appeals jurisdiction which covers our Western States and Pacific Islands.

      • If it did cover Illinois, good luck with open carrying anything, including a pop tart in the shape of a gun. Officer Square Nuts would place a 9mm round in your brisket, then ask questions. Illinois sucks.

    • This dirtbag was 95 in 2013. This old POS wrote the Drake decision in the 3rd circuit to keep NJ a may issue (you are not getting a license to carry unless you are well connected in NJ. He died a year later. So he stuck it to those in the 3rd circuit PA, NJ, DE before dropping dead. No way that guy was in his right mind.

      https://en.wikipedia.org/wiki/Ruggero_J._Aldisert

      He was put on the 3rd circuit by lyndon johnson in 1968. Ugh

  15. This,from the decision,pg.12,14 does’t bode well for civilian disarmament proponents.

    “1) Heller and McDonald set the goalposts for our inquiry, which requires determining the scope of the Second Amendment with respect to public carry. We must discern the scope of the Amendment not as it appears to us now, but “with the scope [it was] understood to have when the people adopted [it].”Heller, 554 U.S. at 634–35. Our lodestars are “text and history,” id.at 595, because they bear most strongly on what the right was understood to mean, at the time of enactment, to the public. Because “words and phrases were used in their normal and ordinary as distinguished from technical meaning,”

    “2) To “bear,” the Court explained, means to “wear” or to “carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defense action in a case of conflict with another person.” (quoting the Supreme Court from 2008) Heller, 554 U.S. at 584”

  16. Many if not most lie-beral “judges” need to retire so they attend to their 1st priority, verifying that they don’t need to change their depends.

  17. Judge O’Scannlain is a 2A guy through and through. The rest of the 9th Circus is mostly populated by communists, socialists, social justice warriors and morons who would rule that the sun rises in the West if it served their purpose.

  18. There is speculation that there will be no appeal because Brett Cavanaugh is expected to be confirmed. The anti-Second Amendment crowd wants to keep gun case away from the Supreme Court. The DC AG explicitly said that was reason they didn’t appeal the shall issue ruling.

    • My guess is they won’t appeal, then they’ll set up a carry system where you’ll get approval if you are 17 ft tall and if not, no approval for you.

      This will be taken back to court and hawaii will hope to get a 3 judge panel much more liberal and win there, then hope SCOTUS punts as they did with drake, the AWB cases from the 4th, 7th, etc.

      • If Cavanaugh is confirmed punting will be of no avail. The Democrats are panicing over Row v Wade but they really should be afraid that SCOTUS will enforce the Second Amendment.

  19. Hopefully we can get more of that across the country.

    Especially in states where the only way to legally carry, or even purchase a gun, is with a license.

  20. If you sit very quietly and strain to hear it, you can actually hear anti-gun activist’s heads exploding. First the ruling on Defense Distributed and now this, this week has been a great week for liberty and freedom.

  21. This idea that a state can make me where my gun unconcealed so every armed criminal knows to take out first is criminal itself. What insane logic.

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