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Young v Hawaii

04/01/2021 4:59 PM | Anonymous

Young v Hawaii  by Tom Reynolds

On Tuesday, we warned that the left’s never-ending effort to destroy the 2nd Amendment would force 2A defenders to learn more about the fine points of law than we ever wanted to learn. Today, we explore another fine point.

The “Heller and McDonald” Supreme Court (SCOTUS) decisions of over a decade ago would seem to have decided the issue of whether the Second Amendment protects an individual right to keep and bear arms for self-defense or if the right was intended only for state militias. SCOTUS ruled it was an individual right and did not require a militia.

Since that time, the left has tried to skirt around “Heller and McDonald” and attacked 2A in new and different ways. The crux of the gun grabbers new argument is that “Heller and McDonald” only protected the right to “keep and bear arms” in the home but not in public. Many left-wing lower courts have ignored “Heller and McDonald”. As Justice Clarence Thomas has charged, the courts have treated the Second Amendment as a second-class right. SCOTUS has not taken up any gun rights cases that would clarify the situation (and slap down the lower courts).

The Federal Ninth Circuit Court of Appeals covers the left coast and is one step below SCOTUS. It is also the circuit court most reversed by SCOTUS. It recently ruled against “Heller and McDonald” in the case of Young v Hawaii.

In 2011, Hawaii resident George Young twice applied to his county police department for a license to carry a loaded firearm in public. The Hawaii County Police Chief concluded that Young was ineligible for a license. Young then filed a claim against Hawaii County, the State of Hawaii, and various officials. The federal district court found that sovereign immunity barred Young’s action against the state and rejected the claims against the County on the merits. Young then appealed to the Ninth Circuit Court of Appeals where a 3-judge panel found for Young and held that Hawaii’s open-carry licensing statute was invalid because it burdened a core right to bear firearms outside of the home. Hawaii then appealed and the Ninth Circuit decided to hear the case en-banc (every judge on the circuit would hear the case rather than just the original 3‐judge panel).

Several Second Amendment groups and law professors submitted briefs discussing the original meaning of the Second Amendment and the historical practice of carrying firearms. They argued that contemporary understandings of the word “bear” was synonymous with “carry,” and that it was not limited to a military context. They also surveyed early colonial laws which showed that carrying was common and legal and discussed how individual Founders, such as John Adams and Thomas Jefferson, carried weapons for self-protection. Their conclusion from history was that arms were borne by common people for self‐defense, and the Second Amendment protects that right.

In March, 2021 the Ninth Circuit Court of Appeals handed down a ruling against Young and also limited Second Amendment rights. This ruling means that the state has the privilege of granting citizens the ability to carry firearms, not that citizens have the right to carry firearms.

Judge Diarmuid O’Scannlain, in his dissent, said: “The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms.’ U.S. Const. amend. II. Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self-defense in any other place.”

This ruling contradicts other rulings in other circuits. It does cover all of the Ninth Circuit’s states but it is not in effect in other circuits. However, left leaning judges in those other circuits might use it for “guidance” when they rule on similar 2A cases.

Young now has the option of trying to get SCOTUS to hear his appeal. It would seem that SCOTUS would take up the case since there is a contradiction between appeals courts that needs to be settled.

There are several lessons here for gun owners and 2A defenders:

For those that wish to rely on the courts instead of the legislature to protect 2A, it should be noted that Young’s lawyers, so far, were handling his case “pro bono” (no fee was charged.) Without their pro bono it would have cost hundreds of thousands of dollars to go this far in the court system – and it has not yet reached SCOTUS.

Money was no issue for Hawaii to fight this as they were on the “Taxpayer’s dime”.

It has been over 10 years since Young’s original application for a license was submitted. For ten years he has been denied his constitutional right and has had to undergo ten years of stress in court.

If SCOTUS decides to hear the case, the Supreme Court has several Trump appointees and a majority who seem likely to overturn the Ninth Circuit and uphold 2A. But will we see Democrats once again call for the nuclear option on the Senate filibuster and threaten to pack the Supreme Court full of anti-gun justices? Will we hear Senate Majority Leader Chuck Schumer again threaten SCOTUS with, “You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

“Heller” was decided about Washington D.C.’s laws but the left tried to bypass it by claiming that it only applied to D.C. and not states. “McDonald” subsequently said it applied to the states, too. So, now the left wants “Heller and McDonald” to only apply to gun ownership in homes and not in public. The left will never accept that we have the right to “keep and bear arms”. The Second Amendment seems to always be one court case away from being erased because that is one of the left’s “Holy Grails”.

A 2nd Amendment Defense Organization, defending the rights of New York State gun owners to keep and bear arms!

PO Box 165
East Aurora, NY 14052

SCOPE is a 501(c)4 non-profit organization.

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