On March 24th, 2021, the 9th US Circuit Court of Appeals reversed an earlier ruling and upheld the effective ban on the open carry of firearms in the state of Hawaii. Coming in the wake of multiple high-profile mass shootings around the country, the case of Young v. Hawaii is likely to be a contentious development in the ongoing gun debate. To briefly recap, back in 2011, George Young, a resident of Hawaii County, unsuccessfully applied for a carry permit twice citing a need for self-defense. Young filed suit, arguing that Hawaii’s law was inconsistent with the Second Amendment.
On Lawyer 2 Lawyer, host Craig Williams is joined by Eric Ruben, an assistant professor of Law at SMU Dedman School of Law and a Brennan Center fellow to discuss the debate surrounding open carry laws, the history of Young v. Hawaii, this recent federal court ruling, and open carry vs. public safety.
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Open Carry Laws, Public Safety, and Young v. Hawaii
Intro: “Even if the Second Amendment right is impinged that does not mean that the government cannot regulate. The government just has to show good enough reason to be able to do so, and that could be and that frequently is preventing unnecessary deaths and injuries.”
Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news, and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
- Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named “May it Please the Court” and have two books out titled, “How to Get Sued” and “The Sled.”
On March 24, 2021, the Ninth Circuit U.S. Court of Appeals reversed an earlier ruling, and upheld the effective ban on the open carry of firearms in the State of Hawaii coming in the wake of multiple high-profile mass shootings around the country. The case of Young versus Hawaii is likely to be a contentious development in the ongoing gun debate. To briefly recap, back in 2011, George Young, a resident of Hawaii County unsuccessfully applied for a carry permit twice citing a need for self-defense. When denied, Young filed suit arguing that Hawaii’s law was inconsistent with the Second Amendment.
Today on Lawyer 2 Lawyer, we will discuss the debate surrounding open carry laws, the history of Young versus Hawaii, and this recent Federal Court ruling. Today’s guest is Eric Ruben, an assistant professor of law at Southern Methodist University Dedman School of Law. In Brennan Center fellow, Professor Rubens scholarly interests span criminal law, constitutional law, legal ethics, legal empirics, and legal history. Currently, he’s researching issues involving self-defense, and the right to keep and bear arms, and teaches a seminar on the Second Amendment. Prior to joining the faculty at SMU, Professor Ruben was a fellow at the Brennan Center and an adjunct professor at NYU School of Law where he taught a course on weapons regulation. He also worked as a criminal defense attorney at Morvillo Abramowitz.
- Craig Williams:°Welcome to the show, Eric.
Eric Ruben:°Thank you for having me
- Craig Williams:°Well, we’re here to talk about Young versus Hawaii, the Second Amendment, and a whole host of recent decisions, maybe even a little bit of New York State Rifle. So, can you give us a little bit background on what happened with Young versus Hawaii?
Eric Ruben:°Sure. So, this case it’s really a remarkable set of opinions that came out, but by way of Backgrounds, the case is about the regulation of the open carrying of handguns in the state of Hawaii, and by open carry, I mean carrying handguns in a way that the handguns are visible to others. The converse would be too concealed carry the handgun. Under Hawaii Law, a person can obtain a license to carry a handgun openly, and they have to obtain a license if they want to carry a handgun openly, but in order to get that license, they have to show sufficient urgency or need for the license. And what that means in Hawaii, and in other places that have similar regimes, is that, the person has to show some threat to their person that is beyond just a generalizable fear of being attacked. And George Young challenged this restriction in Hawaii, and the case went all the way up to an en banc Panel of the Ninth Circuit, which ultimately, upheld the law.
- Craig Williams:°So Eric, how does the colonial history of Hawaii play into Young versus Hawaii?
Eric Ruben:°So, obviously Hawaii wasn’t one of the original 13 States. It was a colony before it became a State, and before Hawaii became a State, it had strict regulations of firearms. And there was a question, to what extent that colonial history with respect to Hawaii’s firearm regulations should have relevance to understanding the scope of the Second Amendment, right, as it applies to Hawaii.
- Craig Williams:°Right. Well, they’re still under the Constitution that’s what they agreed to and where we are now.
Eric Ruben:°That’s right. And so, the core in Young in this Ninth Circuit opinion noted that various colonial firearm restrictions in Hawaii, and also in other States were relevant to the interpretation of the Second Amendment for that very reason that even though they weren’t yet States of the United States, they still were bound by the U.S. Constitution
- Craig Williams:°And how did the founding fathers play into it, when we have John Adams, Thomas Jefferson who carried weapons for their self-protection? How does our own history, and in the Second Amendment relate to this?
Eric Ruben:°Yeah. Well, it’s interesting that there it’s frequently noted by gun-rights advocates that there are certain statements by founding fathers about the need to carry guns in public. Frequently those statements are taken out of context. So, for instance, you might hear quotes from George Washington about the need to carry guns when he was on military expeditions, or quotes from Thomas Jefferson; and there was one letter that he sent to his nephew for instance, when he said, that the most important form of exercise that his nephew should pursue is the gun, and noted that nephew should always carry a gun with him on his walks, and not books. he said, and that is taken as a demonstration of the founding fathers were in favor of a broad right to bear arms. But in this particular case, that history wasn’t at the center of the analysis Court did frequently because it tends to get taken out of context, that history of anecdotes of founding fathers carrying guns in one capacity or another has not been the driving force in terms of the Second Amendment analysis.
- Craig Williams:°Well, there is a pretty complicated Second Amendment to kind of dissect. It has a number of clauses, it’s a well-regulated militia necessary for the security of a free state. The right of people to their both keep and bear arms, interesting concepts from the standpoint of the dissent in this Ninth Circuit en banc case where they just really ripped a new one about the right to bear arms.
Eric Ruben:°Yeah, That’s one of the interesting things in a dialogue between the majority, and the dissent in this opinion. Both did historical analysis, both could be framed as originalist opinions, trying to understand the original public meaning of the Second Amendment, and one of the things that the dissent points out is that, the Second Amendment protects a right to keep and bear arms. Both of those verbs are there, and in the dissents’ view, the right to keep arms, and the right to bear arms should be construed as co-equal, coextensive, protected just as much, and this was a major point of disagreement between the majority, and the dissent. The majority viewed the right to bear arms as having a different scope; the right to carry guns is having a different scope than the right to keep arms within the home.
- Craig Williams:°All right, how do you parse the word, bear as it relates to arms?
Does it relate at all to the militia? Does it relate at all to necessary to the security of a free State? In other words, is it tied to something like, a National Guard? Is it tied to the militia as it was formed with the revolutionary war Army? How does that fit into it?
Eric Ruben:°It’s a great question, and it’s a question that is still being debated. It’s important to put all of this into the context of where the Second Amendment has come over the past decade 12 years or so. In the 2008 case, the District of Columbia v. Heller, the Supreme Court essentially separated that first half of the Second Amendment; that half the part about the militia from the second half, the right to keep and bear arms, and reoriented or oriented the Second Amendment not around service in a militia, but rather, around private self-defense. So, in that interpretation, the keeping and bearing of arms in the Second Amendment as it was interpreted by the Supreme Court in Heller, is not so much about militia service as it’s about private self-defense. Now as it were, Heller did not deal with the question of the scope of the Second Amendment outside the home, it was a case about keeping arms in the home. So, there is still some debate, and some argument about whether or not when it comes to the question that Heller didn’t decide, the right to bear arms, whether that could still have a military connotation. The most of the courts to consider this are sticking with the self-defense centered Second Amendment as it was interpreted by Heller.
- Craig Williams:°When you talk about bearing arms, and whether it’s bearing arms inside a home, or outside a home, how does the social aspect of what’s been going on lately play into this? I mean, we’ve had what 11 mass shooting since beginning of the year, and schools barely back in session yet. Thankfully, I don’t know of any that have happened in schools yet, but that’s largely because there hasn’t been school.
Eric Ruben:°Yeah, well and this is where there’s an interesting policy conversation that’s been going on; it’s been going on over the past 10 years, and it’s certainly heightened over the past year, where you saw demonstrations of open carrying at State houses in Michigan, and in other places. Critics of the practice of open carry point out how the visible presence of a firearm can alter behavior, it can either increase violent behaviors or it could suppress behavior like speech of other people, and because of the fact that, a lot of Americans who aren’t carrying guns openly might be shocked or scared by the presence of somebody or a stranger carrying a gun openly, the NRA actually in 2014 had written an open letter condemning open carry protesters in Texas, and stating even that, the open carry is downright weird. Those are the words that the NRA used at the time in 2014. Now, the NRA quickly walked that back, and now supports a robust open carry right. But that just demonstrates the fact that, there has been a recognition that there’s something different about open carry of guns in today’s society than concealed carry, and the open carry movement to try to normalize this behavior has continued to be more and more controversial especially as you mentioned given recent events.
- Craig Williams:°Right. How do we distinguish somebody who carries AK-47 slung over their back from the right to open carry compared to somebody who’s going to walk into a grocery store, and shoot it up? How do you tell the difference?
Eric Ruben:°It’s hard to do, and this is one of the criticisms that police have when asked about open carry and there are some examples in recent years for instance, of people not being able to differentiate somebody openly carrying with ill-intent from somebody openly carrying without that ill-intent. So, for example in Colorado Springs back in 2015, a concerned resident dialed 911 because a man was casually walking down the street with a rifle, and the 911 operator responded that, “Well, you have a right to do this in Colorado.” Well, that person ended up shooting several people. Shooting and killing several people, and there are other similar anecdotes like this where there’s some confusion about the intent of a person who’s openly carrying a firearm, a long gun. So, in Dallas where I am for instance in 2016, there was a shooting of police officers, and law enforcement afterwards said, that they were struggling to distinguish between people who were legally carrying guns openly, and the gun man they were trying to find, and apprehend.
- Craig Williams:°Yeah, it seems almost impossible to be able to tell the difference.
Eric Ruben:°Yeah. It certainly presents challenges for the police to the extent that this is normalized. I mean, it’s not just for the police, it’s also for people who just see a stranger with a gun. So, there are examples for instance in Virginia, in Charlottesville, Virginia a few years ago where, people dropped their groceries in a grocery store, and ran out of the store because somebody was walking through the store with a rifle slung across his back.
- Craig Williams:°I admit that might be my reaction in this day and age.
Eric Ruben:°And the frequent responses while I’m just exercising my Second Amendment rights. I’m actually exercising my rights to do this.
- Craig Williams:°Yeah, and I’m exercising my First Amendment rights to walk out not that that really applies. Well, you can you teach this subject, you lecture on this subject. Where do you come out on the Second Amendment? What does it mean? I mean, is Young correct, or we going to see the Supreme Court correct this? Where does it sit?
Eric Ruben:°Well, where this is going to go is very much an open question, especially given the changing composition of the Supreme Court. Over the past few years, there’s been a lot of speculation about, “Why the Court has been rejecting so many Second Amendment cases?” And in fact, after Heller and it’s a companion case, McDonald which was decided two years later, incorporated the Second Amendment to apply again State and local governments, there have been over a hundred fifty petitions to the Supreme Court that have been rejected, and a lot of the speculation with respect to that, had to do with where former Justice Anthony°Kennedy might come out on a Second Amendment. And so, when Anthony°Kennedy stepped down and was replaced by now, Justice Kavanaugh, there was a sense that the Second Amendment was going to get more attention at the Supreme Court, and particular its understanding was going to expand as compared to how it’s been interpreted by the Lower Courts. There still haven’t been any big Second Amendment cases decided on the merits at the Supreme Court since the recent turnover of justices, but there surely is an expectation that more cases are going to go up. Personally, I have a hard time seeing the Supreme Court taking the same view of the history as the majority did in this Young case just based on some of their past precedent, but it’s hard to know for sure. It’s like reading tea leaves.
- Craig Williams:°It’s always a guess. Well, let’s talk about the regulation of guns. You know, certainly in the Second Amendment it’s mentioned that it’s supposed to be well-regulated whether you fall into a militia or not. What aspect of gun regulations are currently allowed, and what can we expect to see coming down the road from the current administration?
Eric Ruben:°Well, the vast majority of Second Amendment challenges over the past decade have in fact failed. In other words, Courts are upholding challenge laws. So, even though Heller when it came out in 2008, led to fears or hopes, depending on what side of the issue someone is on, that gun laws were going to fall like dominoes, that hasn’t actually happened in practice. So, in terms of what laws are allowed, the vast majority of the sorts of regulations that generally get discussed have been viewed as permissible by the lower Courts in the face of Second Amendment challenges. So, this would extend to things that are there talked about like, background checks, or restrictions on so-called assault weapons, and large capacity magazines have been overwhelmingly upheld. and even concealed carry restrictions on carrying firearms concealed in public have largely been over upheld with an exception out of the DC circuit. So, most of the gun regulation that tends to get discussed is not prohibited in the face of Second Amendment challenges. Politics, it turns out, play a much bigger role in stopping gun regulations from getting passed.
- Craig Williams:°Certainly, we’ve seen the examples of the NRA lobbyist cited up and down about, the types of control that exists in Congress over that; it seems like the Biden administration may be proposing some type of assault weapon ban. Again, there was one in effect in the past. Where do you see that headed?
Eric Ruben:°Most likely to a filibuster? So, there are a number of bills that are pending right now or that have been proposed that range from expanding background checks. There’s HR8, which was debated in the Senate Judiciary Committee last week. There’s a bill that is trying to close the boyfriend and stalker loopholes to the Violence Against Women Act in particular, if you’re convicted of a misdemeanor crime of domestic violence, and you are the spouse of the victim, then you are prohibited from having firearms, but that restriction doesn’t extend the boyfriends and stalker. So, there are a lot of bills and ideas that are getting discussed like this including the assault weapon ban, that you discussed. It seems like the one that’s most likely to get some traction if any, in the current Congress would be the notion of expanding background checks. The Manchin-Toomey legislation that has been proposed a few times, which is a bipartisan bill has come close to passage and perhaps, that’s going to get taken up again.
- Craig Williams:°I want to flip back for a second to the actual wording of the Second Amendment; there’s a part of it that I frankly don’t understand how it relates to the amendment itself, and that’s the very middle part. “Being necessary to the security of a free State.” What does that mean?
Eric Ruben:°It is a question that experts and scholars of the Second Amendment disagree about and debate, what does it mean to have a well-regulated militia being necessary to the security of the free State?” If you look back to the framing era when the Second Amendment was proposed, the overwhelming concern of the framers at the time was on the power of a tyrannical national government overtaking the States, and disbanding the militias, and creating the sort of regime that the Americans had just escaped after the American revolution, and that view, the idea here is that, a free State, the security of a free State is guaranteed by making sure that a militia is capable of operating in the national defense.
- Craig Williams:°So, we can have a National Guard quartered in our each individual State?
Eric Ruben:°Right, and that’s one of the main interpretations, and through the 1900’s, the Second Amendment was interpreted by and large as a militia-related, right, and for instance, in a 1930s case, United States v. Miller; the Supreme Court held that Assad’s sawed-off shotgun is not an arm protected by the Second Amendment because it has no relation to the well-regulated militia, which is necessary for the security of a free State. That of course, that understanding of course, has been called into question now by District Columbia v. Heller.
- Craig Williams:°Does the phrase, “well-regulated” apply to people or does it only apply to the militia? In other words, is that the basis why there’s so much regulation of citizens or how does that work?
Eric Ruben:°To be sure, after the Heller decision, there’s been less discussion about how the words of the first half of the amendment actually, should be used to interpret what was called, the operative clause. The right to keep and bear arms shall not be infringed. How does the first half actually influence the understanding of the second, and Heller held that that first half, the well-regulated militia part, neither limits nor expands the scope of the operative clause. In essence, it cut off all of that language from the meaning of the Second Amendment, which then reoriented around private self-defense. So, the big question that I think you’re getting at here Craig is, whether or not there’s a role for bringing back, bringing that, the first half of the amendment back into play as a tool for interpreting, limiting, or expanding the Second Amendment right.
- Craig Williams:°Exactly.
Eric Ruben:°And that unfortunately, as of now if that’s something that people want to do, that has been largely foreclosed by the Heller decision.
- Craig Williams:°It would seem so. So, it seems that people have the right to keep and bear arms and people have the right to keep arms in their home, and bear arms to some degree out in public subject to some regulation. How are we going to protect the citizens of the country who don’t want to get shot by the people that are crazy enough to shoot others?
Eric Ruben:°This is really part of the debate about, what is the appropriate extent, and strength of the Second Amendment right, and it’s something that wasn’t decided by Heller. Now, even before Heller, the United States was awash with firearms, and by some measures, there are 400 million or more firearms in the United States, and in private hands, and those numbers were very high even before Heller. The question now after Heller is, to what extent the Second Amendment still allows the sorts of regulations that we would have been able to pass before Heller, and by and large after that decision in 2008, most firearm restrictions have been upheld. The bigger question is just one of political will. To what extent can you get through the politics, the gun politics the tend to stop even very popular regulations like, expanded background checks from getting implemented in the first place.
- Craig Williams:°What right do people have in life, liberty, and the pursuit of happiness, you know, the beginning of the Constitution; how does that weigh against the rights of the Bill of Rights? I mean in particular, the Second Amendment. I mean, I have a right to freedom of travel. I have a right to go to businesses, and so forth, and travel around without fear in pursuit of happiness. Certainly not in pursuit of happiness is somebody’s behind me with a gun.
Eric Ruben:°Yeah. So, is one of the big debates right now. Is how to balance the Second Amendment right against the other rights that we cherish as Americans. So, for instance; the right to free speech, the right to protest, to assemble. To what extent did those rights trump the right to bear arms or vice versa, and as you mentioned the right to life, or some of the more abstract rights to just pursue life in a way without fear of gun violence. Now, of course, there are two sides to this debate whenever it happens because the gun carrier will say that, “the gun is enhancing his or her ability to live peacefully.” And on the other hand, the person who chooses not to carry a gun, and would prefer their there be fewer guns in public says, the opposite. So, balancing these interests on both sides is by and large, what the Courts have been doing over the past 10 years, and generally, they’re finding that the interest, the public interest in stopping armed violence is sufficient to overcome the Second Amendment interest that is burdened by the given regulation at issue, and that really extends to all the sorts of regulations more or less that we tend to talk about.
- Craig Williams:°And where in the Constitution are they drawing from in order to establish the right of people to be free from violence? Is it the right to assemble, and so forth? Is that just simply one of the innate rights that exist in the Constitution under the penumbra?
Eric Ruben:°Right. Well, that could be the interpretation with respect to the right to live peaceably. The way that this tends to play out in Second Amendment jurisprudence, is that when a Court is faced with a Second Amendment challenge to a law, say a background check law, the Court will first evaluate to what extent the Second Amendment right is impinged. After doing that, it does something that the courts tend to do in First Amendment cases and other sorts of cases, which is, apply tiered scrutiny to whatever the restriction is. So, asking for instance, under intermediate scrutiny, whether or not the public interest and background checks is sufficiently related or the public interest in preventing an armed mayhem or violence is sufficiently related to the Background Check Law, so as to pass muster because even if the Second Amendment right is impinged, that does not mean that the government cannot regulate. The government just has to show a good enough reason to be able to do so, and that could be and that frequently is, preventing unnecessary deaths and injuries.
- Craig Williams:°Your public safety argument.
Eric Ruben:°The public safety argument, there you go.
- Craig Williams:°Right.
Eric Ruben:°It’s compelling, they say.
- Craig Williams:°Well, for me it is. I think I would rather not be one of the ones that live on the other end of the barrel. Having been served in the military, I think I understand what that means. But it’s a good debate. Well Eric, it looks like we just about reached the end of our program. So, I’d like to take the opportunity to invite you to share your final thoughts as well as your contact information for our listeners to reach out to you.
Eric Ruben:°Sure. Well, I guess the final thoughts is that, what’s going to happen next year? Well, this Young case, you mentioned it’s made a big splash over the past week. The plaintiff in that case is going to have about a hundred and fifty days. I believe under the current Supreme Court rules to seek a Petition for Cert to see if the Supreme Court will intervene. There’s a steady flow of other Second Amendment cases. So, I think this is certainly an issue for everybody to watch, and I wouldn’t be surprised if in the next year or two, the Supreme Court decides to enter the fray, and decide on the meaning of the Second Amendment outside the home. I’m happy to share my contact information. You can feel free to email me at [email protected] and my Twitter handle is @ericmruben
- Craig Williams:°Great. Well, Eric as we wrap up, thank you very much. Professor Eric Rubens, a pleasure having you on the show.
Eric Ruben:°Thanks for having me.
- Craig Williams:°And for our listeners if you like what you heard today, please rate us on Apple podcasts, your favorite podcasting app.
You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. Remember, “When you want legal, think Lawyer 2 Lawyer.”
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