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It’s been a good couple of weeks for the Second Amendment, at least in the Ninth Circuit Court of Appeals.  Just one week after affirming an injunction blocking California’s ban on standard capacity magazines, a panel of the Ninth Circuit has ruled that the Second Amendment protects an individual right to openly carry firearms in public in the case of Young v. State of Hawaii.

Here is what you need to know:

  • Plaintiff claimed his Second Amendment rights were violated when the County of Hawaii’s Chief of Police denied his application to carry a handgun.  Specifically, plaintiff alleged that the County violated the Second Amendment by enforcing Hawaii’s limitation “on the open carry of firearms to those ‘engaged in the protection of life and property’ and on the concealed carry of firearms to those who can demonstrate an ‘exceptional case.’”
  • A divided three-judge panel, in a decision written by Judge Diarmuid O’Scannlain, agreed with Young and deemed Hawaii’s licensing statute unconstitutional because it limited the right to carry a firearm openly to those “engaged in the protection of life and property.”
  • The decision is noteworthy, not simply for its holding, but also for its lengthy historical analysis of the right to “bear arms” which led the majority of judges to the conclusion that the “right to bear arms must include, at least, the right to carry a firearm openly for self-defense.”
  • The recognition of the right to “openly” carry a firearm is significant because in a prior decision, the Ninth Circuit, sitting en banc in Peruta v. California, concluded that “the Second Amendment does not protect, in any degree, the carrying of concealed firearms by members of the general public.”

The County of Hawaii is likely to Petition the Ninth Circuit for a rehearing en banc, but must do so by August 7.  If a petition for a rehearing en banc is filed and granted, the case would be reheard by an eleven judge panel and the decision could be overturned.  The losing party could file a petition for a writ of certiorari (request for leave to appeal) to the U.S. Supreme Court within ninety days of the Ninth Circuit’s final decision in this case.  There has been widespread media speculation that, in light of President Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court, the time is near for the U.S. Supreme Court to grant certiorari in a case addressing the scope of the individual right to keep and bear arms, and this case could potentially present such an opportunity.

A copy of panel’s decision is available here.

IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations, we advise you that any tax advice contained in this communication is not intended to be used for, and cannot be used for, the purpose of avoiding penalties under the United States federal tax laws.

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