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  • Victory in the 9th Circuit!

Victory in the 9th Circuit!

In a huge decision authored by Judge O'Scannlain, a split panel of the Court of Appeals for the Ninth Circuit has ruled that Hawaii's ban on open carry outside the home in that state violates the Second Amendment under any level of scrutiny. The decision, Young v. Hawaii, can be found here. The decision is very scholarly, carefully reasoned and a powerful statement that the Second Amendment is not a "second-class" right or a constitutional "orphan."

The Young court expressly agreed with the D.C. Circuit's holding in Wrenn that the Second Amendment applies outside the home no less than it applies inside the home. The opinion also held that every law-abiding citizen enjoys this right of self-defense outside the home, not merely those who can show a special need. As the court stated, "[a]n individual right that does not apply to the ordinary citizen would be a contradiction in terms; its existence instead would wax and wane with the whims of the ruling majority." While the court did not directly purport to go into conflict with the Woollard case, which sustained the "good and substantial reason" requirement for carry permits imposed by Maryland law, the court's reasoning that that the Second Amendment applies to every law-abiding citizen directly contradicts the entire premise on which Maryland law ls based.

The court also ruled that the Hawaii statute that technically allowed for concealed carry with a permit was not an adequate substitute because counsel for Hawaii admitted in open court that Hawaii never grants such permits. The court thus concluded that Hawaii has effectively and completely banned carry outside the home and that such a ban was categorically unconstitutional. This is very big ruling, akin to the Seventh Circuit's decision in Moore v. Madigan that Illinois could not ban public carry. It remains to be seen whether Hawaii will seek en banc review by the 9th Circuit or, failing that, Supreme Court review. The decision certainly sharpens the split in the circuits. The court's analysis is a wonderful contribution to this area of law that is sure to influence future cases. We will bring you updates as they occur.

What does this mean for Maryland? Directly, not much, as Maryland sits in the Fourth Circuit which has already sustained Maryland's "good and substantial reason" against a facial challenge in Woollard. However, Woollard has been directly challenged in a pending district court case which was filed specifically to seek to have Woollard overturned by the Supreme Court. That case is still pending. The powerful opinion in Young will help formulating the arguments to present to the Supreme Court in that case as well as cases pending elsewhere, any one of which might land in the Supreme Court. These cases seek to take advantage of the split in the circuits created by the D.C. Circuit's decision in Wrenn, where the court struck down as unconstitutional DC's "good reason" requirement for carry permits. The wheels of the law grind slowly.


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