Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii

Abstract

The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2106 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Keywords: second amendment, ninth circuit, firearms, guns, public carry, open carry, concealed carry, statute of Horthampton, England, colonies