Constitutional Law - Ninth Circuit Strikes Down Licensing Law in Favor of Second Amendment Right to Open Carry - Young v. Hawaii.

• Author: Rogas, Chelsea W.

Constitutional Law--Ninth Circuit Strikes Down Licensing Law in Favor of Second Amendment Right to Open Carry--Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018).

The Second Amendment plainly provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," yet judicial interpretation of its scope thrives in contention. (1) The Supreme Court has held the Second Amendment protects an individual's right to keep a handgun in one's home for self-defense, but has not addressed whether the Second Amendment protects the right to self-defense in public, resulting in a circuit split. (2) In Young v. Hawaii, (3) a three-judge panel for the Court of Appeals for the Ninth Circuit addressed the question and considered, as a matter of first impression, whether the Second Amendment encompasses a citizen's right to openly carry a firearm in public for self-defense. (4) In a 2-1 decision, the Ninth Circuit held that it does apply and, as a result, that Hawaii's statutory licensing scheme restricting the open carry of firearms to those with good cause, on its face violated the Second Amendment and was therefore invalid. (5)

On August 29, 2011, Hawaii resident, George K. Young, Jr., filed an application for a three-year personal permit to carry either an open or concealed firearm outside of his home in accordance with Hawaii's license to carry law. (6) On his application, Young listed "personal security, self-preservation and defense, and protecting personal family members and property" as the reasons for his request. (7) In accordance with section 134-9, the Chief of Police utilized his discretionary authority to deny Young any license to carry, reasoning that Young failed to show an "exceptional case or a demonstrated urgency." (8)

On June 12, 2012, Young filed a complaint in the United States District Court for the District of Hawaii against Hawaii County, the State of Hawaii, and several individuals in their capacity as state agents for deprivation of civil rights, primarily asserting a violation of his Second Amendment right to bear arms. (9) The district court addressed Young's constitutional challenge to section 134-9, acknowledging the right of an individual to keep and bear arms under the Second Amendment and reiterating the notion that states do not have authority to pass laws that inhibit this right. (10) The court clarified that this core right was applicable within the home only, and therefore Hawaii's licensing scheme was constitutionally supported by its substantial relation to the important governmental interest of safeguarding the public from the inherent dangers firearms create. (11) Young appealed, asserting that the county violated his Second Amendment by enforcing against him the statute's limitations on the open carry of firearms to those "engaged in the protection of life and property." (12) A three-judge panel for the Ninth Circuit sided with Young and invalidated section 134-9, holding it was unconstitutional under any level of scrutiny. (13)

Early American jurisprudence limited the Second Amendment's scope to a military purpose, focusing on the collective right to bear arms for protecting the polity rather than a right afforded to private individuals. (14) Since the Colonial Era, state laws provided arms-bearing exceptions for individuals with reasonable cause to fear for their safety. (15) In 1939, in United States v. Miller, (16) the Supreme Court concluded the Second Amendment confers some operative individual right to firearm ownership, but this right extends only to use or possession of a firearm that has "some reasonable relationship to the preservation or efficiency of a well regulated militia." (17) Following the Miller decision, federal courts reviewed firearm regulations under either rational basis review, the most deferential standard to states, or intermediate scrutiny--requiring a substantial, reasonable relationship between the challenged statute and an important government interest. (18)

In District of Columbia v. Heller ,19 the Supreme Court upended the collective right interpretation and held that the Second Amendment grants individuals the right to keep and bear arms for self-defense within the confines of their homes. (20) Heller did not dictate what standard of review should be applied when determining whether firearm regulations violate an individual's Second Amendment right, further dividing the lower courts on the issue. (21) Instead, the Court employed a two-step reasoning process in deciding the Second Amendment issue, focusing on whether the individual has a fundamental right to possess a firearm in the home for self-defense use; and whether the challenged regulation severely impeded this right and thus could not survive under any level of scrutiny. (22) The Court, however, did not address the scope of Second Amendment protection outside the home. (23) The lack of Supreme Court precedent led some jurisdictions to consider public carry as a core part of the Second Amendment, while other jurisdictions did not. (24) This split has led to discrepancies in the applicable scrutiny, resulting in interjurisdictional variations regarding what comprises a constitutionally valid statute. (25)

In the ten years since Heller, federal courts have employed Heller's two-step inquiry in upholding regulations if the challenged law burdens conduct that falls within the core of the Second Amendment and it passes muster under the appropriate level of scrutiny. (26) On rare occasion, federal courts have broadly interpreted the fundamental right to bear arms under strict scrutiny. (27) Most often, federal courts--including the Ninth Circuit--take a narrow approach in reading the Second Amendment, viewing regulatory schemes as substantially related to furthering the important government interest of protecting public safety; thus, the schemes are ultimately reviewed under intermediate scrutiny, and are often deemed constitutionally valid. (28) In an effort to "brighten the line," the Ninth Circuit adopted a sliding scale approach to address Second Amendment challenges--which is its own interpretation of this two-step analysis. (29) According to the Ninth Circuit, a severe restriction that completely destroys a fundamental right is unconstitutional under any level of scrutiny. (30) A law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny. (31) Otherwise, a challenged law that does not implicate a core Second Amendment right, or does not place a severe burden on that right, is awarded intermediate scrutiny. (32)

In Young v. Hawaii, the Ninth Circuit addressed whether the challenged statute violated the Second Amendment and employed Heller's two-step inquiry, consistent with the approach of other federal courts. (33) It reviewed first, whether the burdened conduct under section 134-9 was protected by the Second Amendment, and then decided the appropriate level of scrutiny to apply. (34) To determine whether open carry is burdened conduct within the scope of Second Amendment protection, the majority analyzed the constitutional text of the statute itself and reviewed its contextual judicial interpretations throughout history, guided by the Heller decision. (35) The Ninth Circuit relied heavily on the self-defense purpose of the Second Amendment emphasized in Heller and added that if "to keep" means to possess at one's home, then "to bear" must "protect at least some level of carrying in anticipation of conflict outside of the home [such that it] provides the necessary gap between 'keep' and 'bear' to avoid rendering the latter guarantee as mere surplusage." (36) Relying on this premise, the majority noted that any ban that entirely foreclosed an individual from exercising this right was inherently void. (37)

Following its determination that section 134-9 in fact did regulate conduct protected by the Second Amendment, the Ninth Circuit applied the sliding scale approach to determine the appropriate level of scrutiny. (38) Focusing on the open carry limitation narrowing those who are allowed to carry to those whose job entails protecting life or property in section 134-9, the majority reasoned the "typical, law-abiding citizen ... is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense." (39) For this reason, the majority held section 134-9 was so severely restrictive that it was constitutionally invalid, regardless of which review standard applied. (40)

The Ninth Circuit erred in categorizing public open carry as a core Second Amendment right; specifically, the Ninth Circuit failed to accurately interpret the Second Amendment, disregarded the historical survival of regulatory statutes, and improperly neglected to review section 134-9 under intermediate scrutiny. (41) The dissent properly emphasized the majority's missteps, highlighting the historical prevalence of licensing schemes--akin to Hawaii's challenged section 134-9--as supporting evidence to exclude public open carry from the Second Amendment's core protection, and arguing that intermediate scrutiny is the appropriate standard for section 134-9 to survive. (42)

While the Young majority correctly began by analyzing Heller's notion, that "to bear" arms has been interpreted to mean "to carry" arms, it miscalculated that "to bear" infers a public carry as well. (43) The majority's argument that "to keep" implies an inherent degree of the right to carry, so "to bear" must protect public carry, is nothing more than a non-sequitur fallacy. (44)

The historical analysis relied upon by the majority is selectively incomplete. (45) The dissent criticized the majority's narrow view, noting it hinged its view on evidence sourced primarily from the antebellum South and relied too heavily on the holding in Heller--that "good cause" licensing...