March 25, 2021

‘To Bear Arms’ Is Not a Right, Says Ninth Circuit

The court contradicts the Second Amendment and itself in a bizarre anti-gun ruling.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” —Second Amendment to the U.S. Constitution

“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” —Ninth Circuit Court of Appeals

Who are you going to believe, the Founders who wrote the Second Amendment or the lying despots seated on the Ninth Circuit?

The 7-4 en banc majority of the Ninth Circuit is apparently of the leftist school of thought that insists the Second Amendment is all about militias and not the people. In the original understanding of the Founders, however, the people are the militia, so these leftists are plainly wrong.

The judges added, “We can find no general right to carry arms into the public square for self-defense.” Instead, they insist, the Second Amendment applies only to the “defense of hearth and home.” They have reduced the word “bear” to utter meaninglessness.

Imagine this onerous restriction in light of any other constitutional right. “Congress shall make no law … abridging the freedom of speech [in the home].” Or even of faux constitutional rights like abortion or marriage. You can have an abortion, so long as the doctor comes to your home. You can marry a same-sex partner, but it doesn’t count once you leave your house.

The absurdity is self-evident. Yet that’s what passes for leftist logic when it comes to guns.

Moreover, the offending judges reach around the Constitution by appealing to 150-year-old Hawaii law. “In order to reach their conclusions,” notes gun writer Cam Edwards, “the judges in the majority decided that laws in place in Hawaii before it ever became a state take precedence over the clear and unambiguous language of the Second Amendment, which declares that the right of the people to both keep and bear arms shall not be infringed. According to the Ninth Circuit, those ‘longstanding traditions’ in Hawaii law matter more than the Constitution itself.”

That’s to say nothing of King Edward I, whom the judges also cite in going all the way back to English law in the Middle Ages. Didn’t we fight a war of independence from England in which the first shots were fired over an attempt at gun confiscation? Yes, yes we did.

This bizarre ruling also flies in the face not only of the Ninth Circuit’s own previous jurisprudence but of the Supreme Court’s important rulings in Heller and McDonald. Unfortunately, Heller largely focused on confirming that the Second Amendment is an individual right, while McDonald held that the Second Amendment is “incorporated” against the states. That narrow focus left the question of bearing arms outside the home a glaring example of the Supreme Court’s dereliction on the Second Amendment.

Perhaps that will change now that the Ninth Circuit has somewhat contradicted itself, as well as two other circuit courts. Three years ago, the Ninth struck down Hawaii’s “may issue” gun-permit regime. In Young v. Hawaii, Judge Diarmuid O'Scannlain, who dissented in this week’s case, wrote, “The Second Amendment does protect a right to carry a firearm in public for self-defense.”

The current majority nevertheless pointed to a 2016 ruling in which it “held that individuals do not have a Second Amendment right to carry concealed weapons in public.” Yet that ruling was itself an en banc decision overturning a previous ruling to the contrary.

The court, as O'Scannlain put it in his dissent, “has decided that the Second Amendment does not mean what it says.”

Obviously, it’s time for the Supreme Court to provide some clarity on an amendment that is abundantly clear to originalists but has been treated as a second-class right.

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