Judges Erase And Bear Arms From Second Amendment

Paul BedardMarch 26, 20214min
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Even before the ink dries on a controversial new gun-control decision by the San Francisco-based 9th District Court of Appeals, firearms advocates are preparing to push it to the U.S. Supreme Court because it appears to rewrite the Second Amendment.

In deciding Young v. State of Hawaii, the split court Wednesday decided that openly carrying a handgun is not constitutionally protected outside an owner’s house, a very limited opinion that challenges several states that allow open and concealed carry.

And combined with a 2016 decision on concealed carry weapons, now states in the district can bar citizens from having a weapon with them when they leave home.

Judge Jay Bybee, writing for the majority, cited historical examples where colonists thought having a gun in public was a danger.

Hawaii has very strict carry laws, essentially limiting permits to those in law enforcement. That compares to some states that have no laws on carrying a weapon, concealed or openly.

In his dissent, Judge Diarmuid O’Scannlain said the court’s opinion essentially erased part of the Second Amendment that allows citizens to “bear” arms, which he translated to mean outside the house.

“Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear — i.e., to carry — that same firearm for self-defense in any other place,” he wrote.

The case comes at a time when Washington is eyeing new gun-control measures following the shooting deaths in Boulder, Colorado, this week.

Miller noted that the last big gun case the Supreme Court handled was the landmark Heller decision. She said that decision “gives individuals the right to own a gun. It did not address laws that limit carrying the gun outside the home nor what kind of guns could be outlawed.”

Both sides in the new case said Heller favors them, but she wrote, “Since what we call ‘open carry’ was the standard way to carry guns in the 18th century, it’s clear that the type of bearing arms to which they were referring. You won’t find any depictions of Thomas Jefferson with a pistol in a holster under his cloak from those times. So that would make this open carry case one that would be easier to address by the Supreme Court.”

Author : Paul Bedard

Source : Washington Examiner : Judges erase ‘and bear arms’ from Second Amendment