In 2008, the Supreme Court issued a 5-4 decision, holding that the Second Amendment protects the rights of individuals to possess and carry weapons in case of confrontation. In 2010, the Supreme Court further affirmed that this right was extended to protect against incursions from state and local governments. In the 8 years since, the Supreme Court has not issued a decision fundamentally addressing the scope of these protections.

In the intervening 8 years, the lower courts have not stood still on the Second Amendment. Quite the opposite, the various circuit courts of appeals have taken an assortment of challenges to gun control measures across the country, using the broad precedents set by the Supreme Court as a starting point. This has led to disagreements between the circuit courts as to the strength of this right.

In the 9th circuit, there have been two significant cases recently which have asked the question of the right not just to own a gun, but to carry it outside the home. In a 2015 case, San Diego County required that in order to obtain a concealed carry license, applicants must show “good cause,” showing that the applicant was in harm’s way. A 3 judge panel initially struck down this requirement as unconstitutional in 2016. The case was then appealed for an en banc hearing before all 11 judges on the 9th Circuit Court of Appeals.

The en banc appeal held that there was no right to carry a concealed firearm, and they cited a long legislative history of restrictions and bans on concealed carry in the United States since the 1840s. The court held that “the history of the Second Amendment also indicates that the right to bear arms applies outside the home” but rejected the idea of a specific right to concealed carry, saying “the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.” If there is a right to carry a firearm, but not a specific right to concealed carry, this could be read as the assertion of a right to open carry.

However, the court specifically decided not to address the issue of open carry. The majority punted on the issue in saying, “there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here.” The 7 judge majority determined that the lack of a right to concealed carry was sufficient enough to uphold the requirements for concealed carry licenses. The remaining 4 judges dissented. They argued that these restrictions on concealed carry should not be viewed in isolation, and when viewed together with the state-wide ban on open-carry in California, this can be seen as an infringement on the right to bear arms. The litigants attempted to appeal to the Supreme Court, but were denied a writ of certiorari, keeping the en banc decision in place.

In 2018, Young v Hawaii—a case challenging Hawaii’s restrictions on open carry—came before the 9th circuit court. The litigant was denied a license to open carry on the basis that he had not sufficiently shown “reason to fear injury to the applicant’s person or property” as the law required. In a 2-1 decision, the 3 judge panel ruled that this violated his Second Amendment right to bear arms.

It is likely that this case may be appealed to be heard by the 9th circuit en banc, as Peruta v San Diego was. The en banc court would be forced to address the issue which they specifically neglected to previously address. The previous precedent set in Peruta v San Diego would seem to support the majority’s decision, but there is no guarantee, as a hypothetical en banc appeal may make the decision between Hawaii’s requirements for a license as opposed to an outright ban.

Regardless of an en banc decision, this case satisfies two important criteria for granting a writ of certiorari to be reviewed by the Supreme Court. This case addresses a wide issue that would have substantial precedential value, and it would right a confusion and disagreement between the various circuit courts, many of which have ruled on the issue of carrying in public. It is for these reasons that this case could potentially be appealed to the Supreme Court in the next few years, with the possibility of Brett Kavanaugh on the Court by then.

Eric Wagner

Eric is a New York native and a Sophomore at Stony Brook University, where he studies economics and political science. He is a libertarian, and is currently the Vice President of his university’s College Republicans. Previously, Eric has interned at his town government, and he intends to pursue a degree in law.

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