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

17 Pages Posted: 1 Apr 2021 Last revised: 13 May 2021

See all articles by David B. Kopel

David B. Kopel

Independence Institute; Denver University - Sturm College of Law; Cato Institute

George A. Mocsary

University of Wyoming College of Law

Date Written: May 13, 2021


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

Suggested Citation

Kopel, David B. and Kopel, David B. and Mocsary, George A., Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii (May 13, 2021). 2021 U. Ill. L. Rev. Online 172 (May 13, 2021)., Available at SSRN: or

David B. Kopel

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George A. Mocsary (Contact Author)

University of Wyoming College of Law ( email )

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