Ninth Circus Court, Again

| March 31, 2021

The United States Courts for the Ninth Circuit consists of the Ninth Circuit Court of Appeals along with district and bankruptcy courts in the 15 federal judicial districts that comprise the circuit. It is the largest circuit geographically and by population- it hears cases involving nearly 20% of the total US population. Almost 80% of its findings that make it to SCOTUS are overturned.

Here’s the latest candidate for reversal.

Americans have ‘no right’ to carry guns in public, 9th Circuit Court rules

By Victor Morton and Alex Swoyer

A federal appeals court ruled Wednesday that there is no right to carry a gun in public.

The 9th U.S. Circuit Court of Appeals in a 7-4 ruling rejected a challenge to Hawaii’s requirement that residents must pass an application to have weapons outside the home.

Hawaii’s law requires residents to show an urgency or need to carry a firearm, the applicant must have good character, and he or she must be “engaged in the protection of life and property.”

George Young applied twice for a firearm carry license, but was denied. He unsuccessfully sued Hawaii officials over the restrictions.

“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” the court ruled in an “en banc” decision that involved 11 of the panel’s judges.

“We can find no general right to carry arms into the public square for self-defense,” the majority wrote, claiming that the Second Amendment applies to the “defense of hearth and home.”

“The power of the government to regulate carrying arms in the public square does not infringe in any way on the right of an individual to defend his home or business,” the judges wrote.

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Four of the panel’s judges disagreed with the ruling, arguing the state regulations destroyed the right to carry a gun for self-defense outside of the home.

“This holding is as unprecedented as it is extreme,” wrote Judge Diarmuid O’Scannlain, a Reagan appointee.

SCOTUS has dodged Second Amendment cases since the 2008 D.C v. Heller landmark ruling that the Second Amendment protects an individual’s right to possess firearms. The Second Amendment guarantees ‘the right of the people to keep and bear Arms’ (emphasis added). It does not limit how or where these arms may be born. High time for SCOTUS to level the field across all the states and uphold citizen’s individual rights. Read the entire article here: Washington Times

Category: Guns, SCOTUS, Second Amendment

Comments (30)

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  1. David says:

    En route to getting overturned yet again… you would think they would learn.

    • Only Army Mom says:

      David – I’m not so sure. Our legal beagles here at TAH have laid out good reason why the SCOTUS may not, and it may not be a good idea, take up this case much less overturn this latest 9th Circus nonsense.

      My thought is, the timing of this against the backdrop of Dem’s threats of packing the court is suspect at best. I can believe some believe that by the time this would make it to the SCOTUS, that august body will be fattened and bloated, just how they like all government institutions.

  2. USAF RET says:

    they have been jacked up for 30 years

  3. Martinjmpr says:

    SCOTUS has dodged Second Amendment cases since the 2008 D.C v. Heller landmark ruling that the Second Amendment protects an individual’s right to possess firearms.

    Not true. McDonald v. Chicago is arguably at least as important as Heller. https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago

    McDonald was the case that “incorporated” the 2nd Amendment to the States (via the 14th Amendment.)

    Prior to McDonald, States were free to infringe on the 2nd Amendment all they wanted. Heller only prohibited the FEDERAL GOVERNMENT from restricting 2nd Amendment rights.

    Having said that, both Heller and McDonald only address the issue of possession of firearms in the home, not in the community.

    • AW1Ed says:

      Thanks, Martinjmpr. So SCOTUS has largely dodged 2A cases, then. I’ll stand by the rest.

    • penguinman000 says:

      SCOTUS specifically stated that it was acceptable to place limitations on where/when/how citizens exercise their rights.

      I’m no lawyer but it sounds like the 9th circuit’s findings fall in line with Heller.

      • Martinjmpr says:

        I actually agree as I stated below.

        IMO SCOTUS will not rule on this unless a different circuit rules that states are not allowed to regulate the possession or carry of firearms outside the home and I really can’t imagine that even a very conservative circuit would rule that way because it would invade the general police powers of the state.

        • rgr769 says:

          I see your point. But the Progs in the blue states will take this as a green light to pass state laws making it a felony to possess a firearm outside your dwelling. Of course, they will only enforce them against otherwise law biding citizens. Meanwhile, the Soros elected DA’s will continue to dismiss the gun crimes committed by the professional criminal class/gangsters, just like the LA and San Fransicko DA’s do.

          • Martinjmpr says:

            I doubt such a law would be enforceable under 18 USC section 926(a), the lawful intersate transport of firearms act.

            Certainly states might make it a felony to be in possession of a concealed firearm in public, but that was actually the law in most states prior to the wave of “shall issue” permit legislation that swept through the US in the 1990s.

            So I think your worries are misplaced. States have always had the ability to regulate the possession or carry of firearms in public places and all this ruling seems to do is say that it’s not a violation of the 2nd Amendment for states to continue doing so.

            • 11B-Mailclerk says:

              The new law would supersede the old one. Count on them specifying so.

              • 11B-Mailclerk says:

                Nevermind. State vs federal

                Note that interstate -transport- doesn’t make them legal along the way. There is a -very- narrow window on “passing through” and places like NYC openly say they will arrest anyway. And they do.

      • AW1Ed says:

        Heller addressed possession of firearms, only half of the 2A.

      • ArmyATC says:

        How does the 9th Circus ruling square with the 7th Circuit ruling that overturned the Illinois ban on concealed carry and made it a ‘shall issue’ state? I’m no lawer, but it seems the two rulings are in conflict.

        https://caselaw.findlaw.com/us-7th-circuit/1648621.html

        • ChipNASA says:

          That’s happened in a few places in, particularly Washington D.C. The “Shall Carry lobby group had it overturned a while ago and now, the Maryland Shall Issue Inc group is working the same thing in the PRofMD. I certainly hope it goes through.
          It’s been docketed for the US Supreme Court December of 2020 but not info on the date it’s moving along yet.

          I’m already shopping for a nice everyday carry, leaning towards 9mm because I have a good bit of that and it’s gonna work and 45 ACP is OK but 9 is less expensive and more available, IMHO. Right now on AmmoSeek isn’t running about 0.60 cents a round.

          https://www.marylandshallissue.org/jmain/index.php

        • Martinjmpr says:

          It does indeed. I wasn’t aware of that case but Moore v. Madigan (the 7th circuit case in question, not the specific one you linked to) does state that a state cannot completely prohibit carry of firearms outside the home.

          This may be enough for SCOTUS to see a “circuit split” which is often the justification to get a case in front of the Supreme Court.

          If I was to guess, I’d imagine that the court is likely to “split the baby” by stating that a total, blanket prohibition is unconstitutional, but “reasonable restrictions” are not.

          Such reasonable restrictions are likely to include things like permits to carry, certain off-limits areas (schools or public gatherings), etc.

          The question then would be whether the Hawaii statute that is the subject of this case falls into the “reasonable restrictions” category.

  4. Poetrooper says:

    So…the liberals are saying that we only have a right to defend ourselves when we are at home, hmmm?

    Many states, including mine, extend that right of protection to include our selves and our vehicles but the 9th Circuit says we have no such right?

    • UpNorth says:

      That’s what they’re saying, Poe. Seems having your firearms at home would be the “keep” and carrying a firearm would be the “bear” that are the heart of the 2nd Amendment.

      • The Other Whitey says:

        All true, but remember that according to the left, words don’t mean what they mean unless they want them to mean what they mean for their own agenda.

      • MI Ranger says:

        I would imagine the 9th is probably trying to insinuate that “to bear” simply means the use of such weapon where keep means to own and protect it (in a safe), and that non of these take place outside a very specific place…unless they want to.

  5. Poetrooper says:

    Well not allowing citizens to protect themselves while away from their homes certainly makes liberal sense in light of reports like this one from ABC news back in December:

    “But Chicago is neither the only nor the worst example of this disturbing crime trend. Minneapolis police report that carjackings there have shot up 537% this year. Carjacking calls to 911 in New Orleans are up 126%. Oakland police cite an increase of 38%. And while many police departments do not keep carjacking-specific numbers, instead classifying them as auto theft or armed robbery, crime experts like Chris Herrmann, a professor at John Jay College of Criminal Justice, say anecdotal reports of a carjacking surge are coming in from metropolitan areas around the country including Milwaukee, Louisville, Nashville and Kansas City.”

    https://abcnews.go.com/US/carjackings-skyrocketed-parts-country-pandemic/story?id=74674597

    One has to wonder how many of those carjackers are keeping and bearing arms as they conduct their business–away from home.

  6. Sparks says:

    I wonder if this ruling, since I am in the jurisdiction of the 9TH Circuit, applies to open carry or that and concealed carry when you have a permit to do so?

    • Martinjmpr says:

      I haven’t read the ruling but from what I can tell, what this ruling says is that states ARE free to regulate when/where/how people carry firearms outside of their homes (or more accurately, what the ruling likely says is that WHEN a local or state entity makes a law on carrying firearms in public, it does not infringe on the 2nd Amendment’s right to keep and bear arms.)

      When the SCOTUS rules on the “Constitutionality” of a law, they are not ruling on whether it’s a good idea, or whether it’s likely to be effective, or whether there might be a better way to achieve the same objective – because none of those issues are within the authority of the Court to judge.

      The Court only rules on one question: Does the Constitution permit the government entity (in this case the state of Hawaii) to make its own laws with regard to the carry of weapons outside the home? And it appears that the answer is “yes, it does.”

      This is actually consistent with both Heller and McDonald. In both of those cases, the Court dealt with a law that was either an actual prohibition on the OWNERSHIP and POSSESSION of firearms altogether, or a “de facto” prohibition (IOW technically you “could” get a permit, but the process was so onerous and capricious that it amounted to an actual ban on ownership.) The question of possession of a firearm OUTSIDE the home was specifically not addressed by either Heller or McDonald (except in dicta, where it seemed to say that states and other government entities were allowed to regulate firearms in this manner.)

      People on the pro-2a side sometimes forget that when SCOTUS tells a local or state government “you are not allowed to pass this law” they are actually taking freedom AWAY from those state and local entities by telling them what they are not allowed to legislate. After all, the legislature is elected by the people and can be considered to represent the will of the people.

      You can go all the way back to the Declaration of Independence and its list of grievances against King George III that one of those grievances was that he specifically directed his governors to not enforce laws that had been passed by the colonial legislatures, which those legislatures considered to be an affront to their sovereignty.

      To put it more simply, a ruling that states are not free to pass their own firearms laws takes away the freedom of that state to pass laws through its elected legislature and vests that authority with a non-elected court.

      My point here is: Be careful what you wish for. Do you REALLY want to take away the right of states and municipalities to pass laws that their own citizens want to pass? Because that could really come to bite you in the ass if you’re not careful.

      • Hondo says:

        Three questions for our lawyer commenters:

        1. Doesn’t the combination of decisions in Heller v. DC and McDonald v. Chicago establish the Second Amendment as a fundamental right – e.g., one specifically identified in the Constitution as an individual right and which has been incorporated as a restriction against the states?
        2. Since fundamental rights are subject to strict scrutiny, how does a blanket ban on possession of firearms outside one’s home survive strict scrutiny?
        3. Outside the abominable segregationist Slaughterhouse cases from the immediate post-Civil War period (which IMO appear to have been largely overturned by later SCOTUS decisions), has the SCOTUS ever specifically addressed the meaning of the “and bear” clause of the Second Amendment in one of their decisions?

        • Martinjmpr says:

          1. No. Both Heller and McDonald were challenges to laws that either explicitly prohibited the possession of ALL firearms, even in the home, or were de facto prohibitions on ownership in the home. Both the Heller and McDonald decisions stressed that they were only addressing whether the possession of firearms for home defense was a ‘fundamental right’ and entitled to a strict scrutiny approach.

          2. NA. The right to possess firearms OUTSIDE ones home has never been determined to be a “fundamental right” and entitled to a strict scrutiny approach.

          3. I don’t think so.

          If you’ll permit me a bit of lecturing, our system of laws is based on a concept of “divided sovereignty” between the State government and the national (Federal) government. The Federal government is a government of limited and specified powers, meaning it can only regulate those things that the Constitution specifically allows it to regulate. By contrast, State governments are governments of “general powers”, specifically all State governments have what is called a “general police power.” The General Police Power is the power that a sovereign has to regulate any activities involving “health, welfare and morals” which in practical terms means they can regulate anything they want.

          Now, under the 14th amendment, some rights under the Bill of Rights have been held to be “fundamental rights” that are then applicable to the states under the 14th amendment’s due process clause.

          But consider that the 14th amendment was ratified after the civil war. That means that prior to 1865, there was, for example, no right to speak freely, jury trial, etc, unless that right was specified in the STATE constitution.

          There is a famous pre-14th amendment SCOTUS decision, Barron v. Baltimore in which the Court stated that if the founders had intended the Bill of Rights to apply to the states they would have said so, and they did not. The BoR only got applied to the states after the Civil War through the 14th Amendment.

          Prior to the 14th amendment, there was no prohibition at all on a state passing laws that required people to go to church, that punished people from speaking out against the government, or that required that people be compensated for property taken by the State government.

          Those limitations on STATE power were not considered part of Constitutional law until they became “incorporated” on a case-by-case basis starting in the late 19th century and ending in 2010 when the last significant part of the BoR, the 2nd amendment, was “incorporated” to the states.

          But the only part of the 2nd that was “incorporated” was the right to own and possess a firearm for protection in ones own home. McDonald even says as much.

          Anyway, bottom line is that if the Court were to say that states are prohibited from regulating the carrying of firearms in public, they would essentially be invading the General Police Power of those states to regulate public activities, which is something the Court is very reluctant to do, and for good reason.

  7. USMC Steve says:

    When I was stationed there twice, from 85-88 and 93-95, there was this arrogant little Japanese chief of police, whose policy regarding concealed carry permits, was to take the form and the money, and not to grant the permit. Ever. And they didn’t tell you that before they took your $40.00 for the permit they knew you were not getting. Ten round magazines max, all the socialist dem gun hating nonsense. They routinely got in trouble with the US Attorney’s office over all kinds of stuff.

    I do not miss that place.

  8. rgr769 says:

    Too bad I can’t get back that $100 or whatever the fee was to be admitted to practice as an attorney before the Ninth Circus Court of Appeals back in 1983. This decision makes me want to rip that framed admission certificate off the wall and burn it.

  9. KoB says:

    I still say what part of “…Shall NOT be infringed.” is so hard to understand.

    Molon Labe…Bitches!

  10. 26Limabeans says:

    “engaged in the protection of life and property.”

    Every waking moment of my life so far and into the distant future.

  11. MSgt1775 says:

    You’re better off just leaving Hawaii. Trust me.