The Liberal-Leaning Ninth Circuit Court of Appeals Affirms Right to Self-Defense

By Dave Dolbee published on in General

Rub your eyes now, because you are not going to believe what you are about to read. Two different panels of the Ninth Circuit Court of Appeals have written opinions that, when taken together, equate to a roadmap for the right to “keep and bear arms” with the right to open or constitutional carry for self-defense.

Brown handled .38 in a light tan Galco holster

This .38 carries well in a Galco holster. The .38 Special is a realistic minimum for concealed carry.

Magazine Bans

Last week, a divided court affirmed a trial court’s injunction blocking the state of California’s confiscation of so-called “large capacity” magazines. The court made two important statements. The first was that the Second Amendment protected ownership of weapons that have a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” The second key statement to the ruling statted “the ammunition for a weapon is similar to the magazine for a weapon.” That meant the state of California’s ban on magazines over 10 rounds was invalid under protections granted by the Second Amendment.

This new ruling, combined with Heller’s clear statement that the Second Amendment protects weapons in “common use” for “lawful purposes,” clearly prohibits lawmakers from proclaiming firearms such as AR-15s to be assault weapons in an effort to diminish their protection under the constitution.

Constitutional Carry

The second case was decided yesterday. A different panel of judges (in a 2-1 decision) struck down the state of Hawaii’s ban on openly carrying weapons outside the home. While this is an important victory, it is also a shift in the court’s thinking. The Ninth Circuit had previously ruled that the Second Amendment did not “preserve or protect a right of a member of the general public to carry concealed firearms in public.” I am not sure if the court has simply come to a better understanding or the confirmation of Associate Justice Gorsuch and nomination of Kavanagh to the Supreme Court has simply forced them to wave the flag of surrender.

The Ninth Circuit is made of Western states such as California, Hawaii, Oregon, Washington, and a few more. Whichever way the court ruled, the decision is likely to be challenged and escalated to the Supreme Court.

The author of the majority opinion, Judge Diarmuid O’Scannlain, used a comprehensive analysis of early-American and post-Civil War gun rights debates (including the racist history of Reconstruction-era carry limitations on black Americans) and concluded that while the Second Amendment may not protect a right to concealed carry, it most definitely protects a right to carry.

The practical effect of the decision, especially combined with other case law, demonstrates that the state has a choice: protect a right to concealed carry, protect a right to open carry, or protect both. But if you block a citizen’s right to carry entirely (or limit the right to a “small and insulated subset of law-abiding citizens”), you violate those citizens’ right to “bear” arms.

How do you think the latest rulings from the Ninth Circuit Court of Appeals will affect gun legislation attempts by lawmakers in other jurisdictions? Share your answer in the comment section.

SLRule

Growing up in Pennsylvania’s game-rich Allegany region, Dave Dolbee was introduced to whitetail hunting at a young age. At age 19 he bought his first bow while serving in the U.S. Navy, and began bowhunting after returning from Operation Desert Shield/Desert Storm. Dave was a sponsored Pro Staff Shooter for several top archery companies during the 1990s and an Olympic hopeful holding up to 16 archery records at one point. During Dave’s writing career, he has written for several smaller publications as well as many major content providers such as Guns & Ammo, Shooting Times, Outdoor Life, Petersen’s Hunting, Rifle Shooter, Petersen’s Bowhunting, Bowhunter, Game & Fish magazines, Handguns, F.O.P Fraternal Order of Police, Archery Business, SHOT Business, OutdoorRoadmap.com, TheGearExpert.com and others. Dave is currently a staff writer for Cheaper Than Dirt!

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Comments (48)

  • Dallas E Rush

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    I agree the right to carry and the magazine capacity should not be limited two ten rounds. There are so many people that try to limit others right to carry open or own a weapon that has more then ten rounds. Thank you the the 9th Circuit court…

    Reply

  • Jaro

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    Dudes, the US Supreme court is a PRIVATE organization, and so obviously are ALL the lower courts TODAY. Just check it on manta.com . They administer PUBLIC POLICY of the federal DEMOCRACY.
    What you can do is to return to the REPUBLIC, by becoming a WHITE CITIZEN.

    42 USC 1981 https://www.law.cornell.edu/uscode/text/42/1981

    “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,”.

    And you can follow me on Facebook:
    https://www.facebook.com/jaro.kole.7

    Reply

  • Richard Beasley

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    Don’t be complacent and naive about this 9th decision. There is a lot more behind the scene of their decision. A few short weeks ago they were advocating a ban, today its legal to carry and own a gun? Really now. Maybe they want illegal Aliens to have guns legally! Maybe they want civil uprising as soon as possible so they can squash the action and then take our guns away in the name of gaining civil obedience once again. I don’t know but it is not as simple as underscoring our rights out of the 9th. They have trampled our rights for generations.

    Reply

  • Adam

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    The people at large are not “a well regulated militia”. Therefore these rulings are predicated on a falsehood. The motivation behind this is purely political and aimed at further dividing the American people. When the states reassert their rights to form and maintain true state militias then we will finally be able to put the 2nd amendment debate to rest.

    Reply

  • Razor

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    Pete … Unfortunately, I agree with you 100%! You pretty much stated everything my “spidey senses” were saying to me as I read this article. We should all know better by now than to believe that anything that seems to be rightful and Constitutional coming from our government willingly does not come without a curve. We need to remain vigilant as I believe the chips have just been slide to the center of the table.

    Reply

    • G

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      Agreed … why this and why now?

      Reply

  • Larry Hasbro

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    As long as D3MORATS AND LIBERALS remain clueless as to resolve the problem if gun violence they only have one option to continue getting voted into 8ffice by gullible LIBERALS to to find a escape goat and that’s us few.
    DEMORATS ANDLIBERALS ARE THE RUINATION OF OUR GREAT COUNTRY FOR EVERY TRUE AMERICAN CITIZEN
    TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020 TRUMP2020
    VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE REPUBLICAN VOTE

    Reply

  • Ross Bonny

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    I fail to understand the logic behind it being legal to open carry but not to carry concealed. That is law-making by judges. I don’t find anything in the 2nd amendment about concealed or open carry.

    Reply

    • Dave Dolbee

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      The court actually said the state had three choices, open carry, concealed carry, or both.

      Reply

    • Jose

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      With all the changes I’m wondering how it will effect the regular person and if the courts rule that open carry is constitutional (as it states in the constitution0 why is there still a process for permit. the law need to be clean and clear. Open carry is constitutional as covered without the need of further permission, needed.

      Reply

    • Jerry

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      In many States now, open carry is legal without a permit.

      Reply

    • Jerry

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      The court may have been drawing on history. Back in the day when there were very few restrictions on carrying arms in public (Native Americans and freed slaves prohibited) it seemed dishonest for anyone wanting to carry concealed. Made folks wonder who you wanted to get the drop on. Everyone that carried then, carried openly (side arms and long guns). Some jurisdiction did prohibit concealed carry, as one of the earliest gun control laws on the books.

      Reply

  • Pete in Alaska

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    The comments noted here and on other sites is not unexpected. Given the current state of the upper courts and the makeup of their benches, even the 9th would find it difficult to stand against the Constitutional Current. Both of these decisions are wins for the 2nd A.

    However, make no mistake. This battle isn’t over yet or won. The current decisions by the 9th will see challenges brought to the Halls of the Supreme Court. What the 9th May have done by putting forth these two decisions is to have finally opened the door to what might be termed as unrestricted warfare on the Constitution and Bill of Rights. Not only will the anti-2nd Amendment supporters find this a direct threat to their agendas, so will Supporters of States Rights and of course the Socialist Liberal National Democratic movement in general will perceive these decisions as directly aimed at them and will twist them to their own use in any way they can regardless of facts or reality.

    The 9th’s decisions may serve to bring unification to these factions that has been difficult for them to forge and maintain. The two-edged sword seems to have been fully un-sheathed with these edicts from the 9th.

    Do not yet celebrate this as victory or take your eyes off of the Socialist Liberal opposition as these decisions are more likely to widen the battle than rein it in.

    These decisions by the Liberal 9th Circuit Court are indeed historic and from this commenters POV very welcome.

    One would like to think that the 9th has changed it’s Liberal course in midstream because they believe it to be the right direction for the Republic and the Constitution. I’m suggesting it may be more calculating and manipulative then being that simple. These decisions will force states to reconsider those laws which they have enacted and may be considered unconstitutional, anti-2A, and severely restrictive and in light of these new decisions may be struck down. In effect the 9th has removed the gloves, declared unrestricted open civil warfare, and seems to have washed their hands of further involvement in the hope that they have further muddied the waters.

    Do I hope I am wrong an that this has been a good sign of common sense law? You bet I do.

    Am I willing to accept this out of hand an as is given the source? No, I am not.

    Beware them who oppose you when they arrive to your door with smiles, bearing gifts.

    Reply

    • Karl

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      Good luck if you’re in New York State.Let’s be blunt:New York City is a hostile foreign country-not merely another state. Too bad we haven’t been able so far to remove Cuomo and his minions.The New York State Republican Party is a prime cause[they didn’t support Astorino in the last election]as well as the complacent firearms owners].Will everyone remember this in the November elections??In the meanwhile I’m open to referrals tor rural land in some other state.

      Reply

    • Razor

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      Pete … Unfortunately, I agree with you 100%! You pretty much stated everything my “spidey senses” were saying to me as I read this article. We should all know better by now than to believe that anything that seems to be rightful and Constitutional coming from our government willingly does not come without a curve. We need to remain vigilant as I believe the chips have just been slide to the center of the table.

      Reply

    • Val E. Forge

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      Pete in Alaska:

      I too must agree with your vert astute observations. Your last sentence succinctly sends and important message. The Trojans were right and this thing is starting to look like a horse.

      Reply

  • John McNiel

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    That must mean that the politicians and their body guards can now use large mags, etc. Oops – I forgot. Gun laws don’t apply to politicians.

    Reply

  • Billca

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    It’s good news until Hawaii demands an en banc hearing. Then we’ll see if the 9th Circus is moving right.

    Meanwhile, if it stands, expect states to erect barriers or “standards” to increase costs or create technical violations. An extreme example: requiring at least a Level II retention holster — in bright pink or “safety yellow” –when worn in public. Morel likely, they’ll make up some kind of annual “inspection” régime that requires a certificate to be sent in and an inspection card carried. (Instant gun registry.)

    They will try. It’s up to us to demand they follow the constitution.

    Reply

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