The Yale Law Journal

Ninth Circuit Cites Volumes 123 & 125

Tracy Nelson
24 Jul 2018

In Young v. Hawaii, the Ninth Circuit considered the applicability of the Second Amendment to the right to carry a loaded firearm in public for self-defense. No. 12-17808, 2018 WL 3542985 (9th Cir. July 24, 2018). The Plaintiff brought claims against the County of Hawaii and the State of Hawaii after his application to carry a handgun was denied because he failed to satisfy Hawaii’s licensing requirements. The district court dismissed the claims, finding that the Second Amendment “establishes only a narrow individual right to keep an operable handgun at home for self-defense.” Id. at *3.  Writing for the majority, Judge O’Scannlain reviewed the text, as well as both founding-era and modern legal thought. The opinion ultimately “reject[ed] a cramped reading of the Second Amendment that renders to ‘keep’ and to ‘bear’ unequal guarantees” and found that the Second Amendment protects a right to carry a firearm in public for self defense. Id. at *20. 

The opinion cited Jonathan Meltzer’s Note Open Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 Yale L.J. 1486 (2014), to support the notion that the originalist conception of the Second Amendment was more generous than the English right at the time. Meltzer’s Note argues “a faithful reading of Heller requires constitutionally protected open carry.” Id. at 1486.

Both the majority opinion and the dissent cited Eric M. Ruben & Saul Cornell’s  Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L.J.F. 121 (2015). Ruben & Cornell’s piece offers a historical perspective on gun regulation case law in the antebellum south and argues that it “did not represent a national consensus about the meaning of the right to bear arms, and should not be relied upon to strike down public carry regulations today.” Id. at 124 The majority opinion quoted the piece to support the idea early state firearms regulations only sought to regulate the disruptive carry of weapons, not the carrying of weapons for self-defense. Judge Clifton’s dissenting opinion cited Ruben & Cornell’s piece to suggest that the majority opinion disproportionately focuses on cases from the Antebellum South that do not accurately reflect the entirety of American legal history.