FAUX HISTOIRE OF THE RIGHT TO BEAR ARMS: YOUNG v. HAWAII (9th Cir. 2021)

36 Pages Posted:

Date Written: July 13, 2021

Abstract

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), purports to find that the right to bear arms is outside the historical scope of the Second Amendment, which protects that very right to bear arms. The actual text of the Second Amendment is AWOL in the Ninth Circuit’s holding that Hawaii may ban the carrying of firearms, whether openly or concealed. The court’s lengthy account of the history of prohibition on bearing arms is a faux histoire.

Young begins by tracing Hawaii’s ban on carrying a pistol to 1852, when Hawaii was a monarchy. Hawaii’s Constitution recognized no right to bear arms, and instead the law declared that only persons in government were “authorized to bear arms.” When the monarchy was overthrown and a republic created, a law was enacted allowing anyone to carry a pistol by paying a license fee. The court simply ignores that period and highlights restrictions imposed after annexation by the United States. And it disregards how the “good cause” exemption, which allowed carrying without a license, was enforced.

Next Young finds precedent for the carry ban in the decrees of medieval English kings, who prohibited subjects from “going armed.” However, the context concerned knights in armor fighting and creating turmoil, not lowly peasants carrying a bow or dagger for self-defense. At any rate, our Founders would have held in disdain the idea that they needed “the king’s license” to bear arms. The court also misrepresents various English statutes, such as the prohibition on going armed to rob, murder, and kidnap, terms that the court snips out to claim that the law simply banned the carrying of concealed weapons.

The Statute of Northampton of 1328, with its convoluted language on coming armed before the King’s Justices or going or riding armed, is held up by Young as the holy grail to justify carry bans. But the court butchers the definitive holding in Rex v. Sir John Knight (1686), reflected in treaties thereafter, that the Statute only applied if a person went armed with evil intent in a manner to terrorize the subjects. And it underrates the scope of the Declaration of Rights of 1689, protecting the right of Protestants to “have Arms for their Defence.”

Young’s “history” goes further downhill when it crosses the Atlantic. Carry bans in the American colonies were somehow seen as normal because the backwater East New Jersey had a temporary carry restriction and the other colonies required settlers to carry arms to church and other public places. The court skips over the history of the British attempts to disarm the Americans, the demands that the proposed Constitution have a bill of rights, and public discussion leading to the ratification of the Second Amendment.

Instead, the court jumps to antebellum laws that prohibited going armed offensively to the terror of the people, which were irrelevant to the peaceable carrying of arms. It muddies the waters about nineteenth-century judicial decisions, which generally upheld the right to bear arms except for an outlier Texas case from 1871. The antebellum slave codes and judicial decisions upholding them, based on the premise that slaves and even free persons of color had no right to bear arms because they were not citizens, warrants no notice in Young. And it is silent on the purpose of the Fourteenth Amendment to overturn black code provisions requiring African Americans to obtain a carry license that could be issued or denied in the discretion of the government.

The Ninth Circuit in Young paints a faux histoire of the right to bear arms. It relies on medieval decrees that would have been anathema to the Founders, deletes key passage from historical sources, leaps over crucial stages of American history such as the coming of the Revolution and of Reconstruction, and otherwise distorts the past to demonstrate that the right to bear arms is actually beyond the historical scope of the right to bear arms.

Keywords: Second Amendment, right to bear arms, Hawaiian firearm laws, constitutional history

Suggested Citation

Halbrook, Stephen P., FAUX HISTOIRE OF THE RIGHT TO BEAR ARMS: YOUNG v. HAWAII (9th Cir. 2021) (July 13, 2021). Available at SSRN: https://ssrn.com/abstract=

Stephen P. Halbrook (Contact Author)

Independent Institute ( email )

100 Swan Way
Oakland, CA 94621
United States

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