The Supreme Court ruled a decade ago — and for the first time — that the 2nd Amendment grants individuals the right to keep firearms in their homes for personal protection. It was the wrong decision; courts until then operated under the belief that the 2nd Amendment was framed with state militias in mind. But joined by four conservative colleagues, Justice Antonin Scalia found in the District of Columbia vs. Heller that the Constitution protects the right of individuals to keep and bear arms, albeit not without limits.
Now a three-judge panel of the U.S. 9th Circuit Court of Appeals has ruled in a case from Hawaii that the logic of the Heller decision also should apply to people who want to carry a firearm openly in public for self-protection. The panel’s decision is just as wrong as the Heller case it is built upon, and if it stands, it will make the nation a more dangerous place.
The heart of the decision is the belief that the 2nd Amendment, as interpreted in Heller, grants a right to keep (as in own) and to bear (as in carry) arms for self-protection in both the home and in public, where the danger of life-threatening interactions also exists. In other words, the need for self-protection, and thus for a firearm, doesn’t stop at the front door.
If there’s any good news here it’s that the judge who wrote the 2-1 majority opinion, Diarmuid O’Scannlain, came to a similar conclusion in Peruta vs. San Diego County four years ago. In that case, the majority held that the 2nd Amendment also conveys a right to carry a concealed weapon. But the 9th Circuit Court overturned that decision after an en banc hearing, and the Supreme Court later refused to hear the case. We hope that Hawaii officials will seek a broader appellate review, and that Young vs. Hawaii goes the same way as Peruta.
But there’s a risk here that the disagreements among lower courts over the issue might finally force the Supreme Court to accept another major 2nd Amendment case. Since the Heller case and a related decision out of Illinois in 2010, the nation’s top court has been loath to hear new challenges to gun regulations.
Judge Brett Kavanaugh, President Trump’s conservative nominee to replace the retiring and more centrist Justice Anthony M. Kennedy, embraces an expansive approach to the 2nd Amendment. While his confirmation would not necessarily mean a court more friendly to gun rights, it would probably mean that the court will consider more challenges to gun control laws, with Kavanaugh providing the fourth vote to grant a hearing (it takes five justices to reach a majority decision). And once the court decides to hear a case, anything can happen.