The Corner

Law & the Courts

Ninth Circuit Panel: Yes, the Constitution Protects the Right to Open Carry

News from the Ninth Circuit:

A federal appeals court ruled on Tuesday that the U.S. Constitution’s Second Amendment protects a right to openly carry a gun in public for self-defense, rejecting a claim by Hawaii officials that the right only applies to guns kept at home.

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“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

The decision did not change the court’s earlier ruling that the Second Amendment does not guarantee a right to carry concealed firearms in public.

This is interesting indeed. A couple of years ago, the Ninth ruled en banc that the Constitution does not protect concealed carry, but left open the possibility that it protects open carry (which it rather obviously does). Now, a Ninth Circuit panel has ruled that the Constitution does indeed protect open carry.

Unless the panel’s decision is reversed en banc, the two decisions will have to be reconciled. When that happens, it seems most likely either that (a) the court will strike down the open carry bans in Hawaii and California, or (b) the court will adopt the argument, presented by the plaintiffs in Peruta, that a state can choose to ban either open or concealed carry, but could not prohibit both. Watch this space.

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