9th Circuit: 2nd Amendment Protects Right to Carry Firearms in Public For Self-Defense

In a recent appellate court decision, the 9th Circuit weighed in on how much the Second Amendment protects, or does not protect, carrying of firearms outside of the home.

In Young v. Hawaii, an individual challenged the constitutionality of a Hawai'i law requiring gun owners to keep their firearms at either their place of business or at home. The law provides an exception. Residents can apply to carry a firearm, either concealed or openly, with the local chief of police. However, the applicants must demonstrate a need to protect “person or property.”

George Young wished to carry a firearm publicly for self-defense. He applied twice with the County of Hawai'i’s Chief of Police. The Chief denied his application twice.  In fact, no one other than a security guard had ever been issued an open carry license. After his second application was denied, Mr. Young challenged the constitutionality of the law.

In a lengthy majority opinion, which examined the history and language of the Second Amendment, the Court held the Constitutional right to “bear arms” necessarily “implies some level of public carry in case of confrontation.” Accordingly, the Court ruled that the Hawaiian law unnecessarily restricts Mr. Young’s right to carry a firearm openly.

The Court specifically noted that restricting open carry to those who job entails protecting life and/or property restricts open carry to a “small and insulated” subset of law-abiding citizens. For that reason, the Court stated that the Hawai'i law “violated the core of the Second Amendment.”  

Currently, there is a split among several federal courts on these issues. Accordingly, this case may move forward to the Supreme Court.

AB 1192 Ensures Retired Reserve Officers Can Carry High-Capacity Magazines/Assault Rifles

On July 7^th 2018, Governor Brown signed Assembly Bill 1192 into law. The legislation, sponsored by Assemblyman Tom Lackey, was actively supported by PORAC.  This new law corrects a problem created by Proposition 63. 

In 2013, the California Legislature passed Assembly Bill 703. That bill allowed “honorably separated Level 1 reserve peace officers” to carry concealed firearms on the same basis as “honorably retired full-time peace officers.” At the time AB 703 became effective, the California Penal Code allowed the possession of high-capacity magazines by currently sworn full-time and reserve peace officers. It also allowed the continued possession of high-capacity magazines by California residents who lawfully acquired them prior to the year 2000 and by retired peace officers who acquired them during the course of their active duty.

However, in 2016, Proposition 63 passed. It required all persons, with few exceptions, to “divest themselves of high-capacity magazines by July 1, 2017.” Proposition 63 carved out an  exemption for “honorably retired peace officers.” Due to a technical oversight, Proposition 63 did not exempt “honorably separated Level 1 reserve peace officers.”  Accordingly, numerous retired reserve police officers were being forced to dispose of any high-capacity magazines possessed by them on or prior to July 1, 2017.  AB 1192 fixes that technical oversight and allows retired reserve officers to continue possessing high capacity magazines.

Fourth Circuit Upholds Semi-Automatic Assault Weapons Ban

Recently, in Kolbe v. Hogan (2017) --- F.3d ---- , the 4th Circuit Court of Appeals upheld a Maryland law banning certain semi-automatic assault weapons and magazines in excess of ten rounds. The Court ruled that the 2nd Amendment did not apply to protect these weapons. The court decided they were, “weapons that are most useful in military service” as described in the United States Supreme Court decision of District of Columbia v. Heller (2008) 554 U.S. 570. The Court also ruled that even if the 2nd Amendment applied, the law would be constitutional. 

Maryland's law prohibits semi-automatic rifles with folding stocks, a grenade or flare launcher, or a flash suppressor. The law also prohibits rifles that utilize magazines that can hold more than ten rounds and rifles with a total length of less than 29 inches. The law also banned semi-automatic shotguns with a folding stock and shotguns with a revolving cylinder. 

Proponents of the law gave evidence regarding the history of the prohibited weapons as weapons designed for use by the military. The evidence paid special attention to the history of the AR-15. They also presented evidence which suggested that there is little difference in the automatic and semi-automatic versions of the banned weapons. This was the proponents' attempt to prove that the semi-automatic weapons can be more lethal in certain situations. 

Proponents of the law also argued that keeping magazines under ten rounds would aid victims in an active shooter situation. They reasoned that it would greatly increase the number of opportunities for victims to disable the shooter or escape. 

Those challenging the law argued that the prohibited weapons have a lawful use for self-defense, hunting and shooting competitions. The parties gave evidence that large capacity magazines are necessary for self-defense and the defense of loved ones. They argued that a person under the stress of an attack has a tendency to miss shots and tends to have difficulty reloading. Accordingly, challengers to the law argued that large capacity magazines are necessary for proper self-defense.  

Arguments were also made that the State did not have a legitimate purpose for the ban and were simply trying to ban specific weapons. Challengers pointed out that the law did not ban some semi-automatic weapons which could be modified to be similar to those banned by the law. They also pointed out that these weapons cause a small number of deaths each year. This was especially true when compared to yearly deaths caused by hand guns and other deadly weapons. 

Ultimately, in a split decision, the 4th Circuit sided with the proponents of the law. The Court found that the banned weapons and magazines were “weapons that are most useful in military service." The 4th Circuit held that such weapons are not protected by the 2nd Amendment under Heller. 

Additionally, the Court ruled that even if the 2nd Amendment applied, the law was constitutional. The court stated that this was because of the compelling state interests in public safety and the reduction of crime.