Ninth Circuit Three Judge Panel Upholds Second Amendment Right to Open Carry

United States Court of Appeals for the Ninth Circuit
Ninth Circuit Three Judge Panel Upholds Second Amendment Right to Open Carry

Arizona -( A three-judge panel has written that open carry outside the home is protected by the Second Amendment. The case is Young v. State of Hawaii. The opinion, written by Judge O’Scannlain makes a clear, logical, and compelling case that open carry outside the home is a right protected by the Second Amendment. From Young v. State of Hawaii:

In determining the appropriate level of scrutiny to apply to section 134-9, the panel first held that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment. The panel stated that restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violated the core of the Second Amendment and was void under any level of scrutiny.

Judge O’Scannlain found only a little new in this opinion. O’Scannlain wrote the original majority opinion for the three-judge panel in the Ninth Circuit ruling on Peruta v. San Diego. He had already done all the research and analysis of the history and precedent of the Second Amendment. The Ninth Circuit, en banc, overruled the O’Scannlain and found that there was no right to carry arms concealed, outside the home, ignoring that carrying openly outside the home had recently been forbidden by California law.

In Young v. State of Hawaii, the carry permit is for both open and concealed carry. O’Scannlain makes an obvious point. The Ninth Circuit, in the en banc ruling on Peruta, said concealed carry outside the home is not protected by the Second Amendment.

Judge O’Scannlain writes that both concealed and open carry may not be forbidden because forbidding both is a clear infringement of Second Amendment rights.

Open carry outside the home is more clearly protected than concealed carry, because of precedents in state law that go back to the 1830’s.  Concealed carry does not have the level of protection that open carry does, simply because bans on concealed carry have been tolerated for 190 years in some states.  In 1833, the Supreme Court had ruled the Bill of rights did not apply to state governments.

Slowly, starting in the 1920’s, the Supreme Court ruled that some Amendments in the Bill of Rights gave protection from state governments. In 2011, the Supreme Court ruled the Second Amendment protected peoples rights against infringement by state governments.

The dissent, written by Judge Clifton, a George W. Bush appointee, is a familiar restatement of what became the majority opinion in Peruta in the en banc ruling.

It attempts to make the case that open carry is not protected by the Second Amendment. Clifton makes three essential arguments.

  • First, he relies on scattered laws in a few states from the 19th century, that allowed people to ask a judge to require a surety (similar to a bond) of a person who they deemed to be acting irresponsibly while carrying weapons.
  • Second, is the fact that some restrictions on open carry have been tolerated in a couple of states for nearly a century.
  • Third, that governments believe restrictions on the carrying of arms serve a good purpose.

None of the three points is much of an argument. They amount to an attempt to find ways to invalidate the Second Amendment because the judge does not want to enforce Second Amendment protections.

Thus we come to the core difference in the opinions.

  • If you desire to interpret and enforce the Constitution as written, the Second Amendment protects an individual right to self-defense.  It protects a right to keep and to carry weapons that would be useful, not only for self-defense but to form a viable militia. It protects a right to carry weapons outside of the home.
  • If you believe the Constitution is a silly impediment to government power, that the Constitution is an obsolete relic of a bygone era, something that has to be re-interpreted for today’s times, a “living document, then you will always find a few laws somewhere to be able to create a sophistry that neuters the Second Amendment.

One side values truth, the rule of law, and the necessity of limits on government power.

The other side finds that truth is situational and relative, the rule of law is what a judge or government says it is at the time it is said, and limits on government power are an obscene restriction on the ability of the elite to rule as they should.

The question going forward is whether there will be an en banc ruling on Young v. State of Hawaii, what the en banc ruling will find, and if Young v. State of Hawaii will be appealed to the Supreme Court.

There are seven openings on the Ninth Circuit. President Trump has nominated two judges so far.

I do not believe the Ninth Circuit’s ideology has changed much yet. The Ninth has a history of hearing Second Amendment cases en banc.

I predict that Young v. State of Hawaii will be heard en banc. I predict the en banc Ninth Circuit will reverse the three-judge panel.

They will find some sophistry to claim the Second Amendment does not protect any carry outside of the home, open or concealed. I predict the case will be appealed to the Supreme Court.

If President Trump’s nominee, Judge Kavanaugh, is Justice Kavanaugh on the Supreme Court at that time, there is an even chance the Supreme Court will accept Young v. State of Hawaii. If they accept the case, they will likely find that carry outside of the home is protected by the Second Amendment.

Dean Weingarten
Dean Weingarten

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.

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Charles Nichols

“Judge O’Scannlain writes that both concealed and open carry may not be forbidden because forbidding both is a clear infringement of Second Amendment rights.” Where in the Young v. Hawaii decision did he say that? What the decision explicitly held (Slip Op at page 46) is: “While the concealed carry of firearms categorically falls outside such protection, see Peruta II, 824 F.3d at 939, we are satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense.” Concealed carry falling categorically outside the protection of the Second Amendment does not mean “that both concealed… Read more »


I also predict that Young v. State of Hawaii will be heard en banc and the en banc Ninth Circuit will reverse the three-judge panel. Furthermore, I predict the 9th CC will pull some absurd sophistry out of a hat. We’ll find out the en banc decision in about two years.

James Higginbotham

this ruling also applies to the rest of the states.


Two quotes from this 9th Circuit case, found on pages 12-14: 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,” 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… Read more »


@K Well ststed.


I tend to wonder as to how the rest of the court might lean. Looking at past performances, that question becomes “interesting”.


In many states… like NYS a civilian is only able to purchase a toy with approval from the local sheriff.. So, they will easily prevent open carry by not issuing purchase permits…. which is done today. Still a puzzle why they approved open carry? I know why,,, localities cops will just make it living hell if they see anyone with a toy on their hip. This ruling is meaningless in 99.99% of the cities.. COPss will make your lives miserable.

Michael Moran

Today Hawaii…tomorrow, New Jersey? One can only hope & pray…


Doubtful that open or concealed carry will ever happen in NJ. The state is rabidly anti-gun, and doesn’t recognize the right of self-defense.

Michael Moran

IF-IF-IF…if this goes to the “en banc” 9th, or gets kicked up to SCOTUS and is upheld; it MIGHT be the swan song for New Jersey’s anti-self protection attitude…pending the continuance of the Bill of Rights being applied to the states (which it was NEVER intended to be! It was meant to be handcuffs on the Federal government ONLY…such would be the left’s own game used against them). As a retired police officer, my Dad ALWAYS carried; and it was curiously reassuring to me growing up. I would like to impart that same assurance to my own family-especially in this… Read more »

Wild Bill

@Mike, Moran, One can also ferret out the “not a party hack” candidates, and support them with a contribution, get their name around, knock on doors to pass out their campaign literature, and even through a barbecue for your friends and invite the candidate!

Ansel Hazen

And then on to Mass. Calif, Fla, Vermont, CT, NY etc.


So what about the rest of the states?

Michael Moran

Same thing applies.