These are words I never, ever thought I’d type: Two different panels of the Ninth Circuit Court of Appeals have written opinions that — taken together — provide not only the proper roadmap for understanding the right to “keep and bear arms” but also the proper roadmap for effective, constitutional gun control.
I wrote about the first case last week. A divided panel affirmed a trial court’s injunction blocking the state of California’s confiscation of so-called “large-capacity” magazines. While the court’s opinion was short — and confined to determining whether the lower court had abused its discretion — it contained two key statements. The court noted that the Second Amendment protected ownership of weapons that have a “reasonable relationship to the preservation or efficiency of a well-regulated militia” and that “the ammunition for a weapon is similar to the magazine for a weapon.”
Combined with Heller’s clear statement that the Second Amendment protects weapons in “common use” for “lawful purposes,” then one can see that proclaiming a weapon “military-style” (as gun controllers often do with AR-15s or Glocks) doesn’t diminish their constitutional protection. Instead, their common ownership, combined with their “reasonable relationship” with militia use, should enhance their constitutional status.
The second case was decided yesterday. A different divided panel struck down the state of Hawaii’s ban on openly carrying weapons outside the home. In other words, the right to “bear” arms includes the right to carry a weapon to defend yourself outside the home.
Gun-rights advocates will remember that the Ninth Circuit had previously ruled that the Second Amendment did not “preserve or protect a right of a member of the general public to carry concealed firearms in public.” (Emphasis added.)
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.
But wait. Didn’t I also reference constitutionally appropriate gun control in my opening paragraph? I did indeed.
In one of the most interesting parts of the opinion, Judge O’Scannlain dissects the dissent’s argument that the Founders would have permitted governments to impose preemptive limitations on carry rights by, for example, requiring those who carry weapons in public to post a surety, or a bond. O’Scannlain’s response is instructive:
The dissent erroneously characterizes surety laws as imposing a severe restriction on the public carry of weapons absent good cause to fear injury. And its analysis of the actual historical evidence is, in a word, cursory. While the dissent focuses on the exception to the surety requirement for carriers with a specialized need for self-defense, it ignores the clearly limited scope of the requirement in the first place: only upon a well-founded complaint that the carrier threatened “injury or a breach of the peace” did the good cause exception come into play, “by exempting even the accused” from the burden of paying sureties. . . . Thus, “[a] showing of special need did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.”
Surety requirements depended on an individualized, “well-founded complaint.” And complainants typically had to possess a “reasonable cause to fear injury or breach of the peace.”
This early-American safety measure has echoes in modern “red flag” laws, or the gun-violence restraining order that I’ve written about before (and the NRA has endorsed). Under a GVRO (just like surety laws), the limitation on gun rights comes after a specific complaint and the presentation of evidence. Only then does the state infringe upon the right to carry. Moreover, the costs of frivolous complaints could be high:
The dissent might wish to set aside the requirements to complain under surety laws, but we suspect those who actually did complain under such laws would hesitate before treating the requirements so lightly. Were a complainant to bring an “unfounded, frivolous or malicious” claim that an arms carrier threatened the public peace, the magistrate would not only dismiss the complaint, but also hold the complainant “answerable to the magistrate and the officer for their fees.”
Taken together, these two Ninth Circuit panels have articulated three principles — each based on originalist readings of the Second Amendment and solid historical evidence — that should guide gun-rights jurisprudence at the Supreme Court.
First, the Second Amendment does, in fact, protect weapons that are related to militia use — especially when those weapons are in common use for a lawful purpose. This principle can and should preclude the vast majority of so-called “assault weapons” bans and bans on standard-capacity magazines in semi-automatic rifles and pistols.
The contours of coming Supreme Court conflicts are starting to emerge.
Second, states must permit gun owners to “bear” arms outside the home. While I largely concur with the reasoning that the original public meaning of the Second Amendment does not require protection for concealed carry, if a state bans concealed carry, it must permit open carry.
Third, when dealing with weapons in common use for lawful purposes, the form of gun control that is best designed to preserve public safety — while also respecting constitutional rights — is gun control that is individualized and evidence-based, based on the user, not general, based on the weapon. Though there are exceptions, gun violence tends to come from known threats (violent felons, troubled individuals with long records of problematic behavior) and generally does not occur spontaneously and randomly.
The broader Ninth Circuit is far less respectful of gun rights (much less originalism) than the panels in these two cases, but the court is in a bind. An en banc decision reversing the open-carry decision would then confront the Supreme Court with the argument that the Second Amendment simply does not protect a meaningful right to “bear” arms at all. It’s difficult to essentially read words out of the Constitution, especially in the face of an increasingly textualist and originalist Supreme Court — and a court that includes Brett Kavanaugh will likely be less reluctant to review court decisions restricting Second Amendment rights.
The contours of coming Supreme Court conflicts are starting to emerge. There is much litigation ahead before these decisions are set in judicial stone, but the originalist architecture is set — thanks to judges from the federal appeals court based in San Francisco. Wonders will never cease.
NOW WATCH: ‘Appeals Court Affirms Open Carry’