9th Circuit Rules That Open Carry Is A Constitutional Right - Where It Goes From Here

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Why This Ruling - If It Stands - Will Expand Concealed Carry And Gun Rights In General

A few hours ago, a three judge panel issued a ruling overturning Hawaii's ban on the open carry of handguns for self defense.  You can download the ruling here.  The ruling was a split 2-1 decision.  "We do not take lightly the problem of gun violence," Judge Diarmuid O'Scannlain wrote in Tuesday's majority ruling. "But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense."

So, how will a ruling that affirms the right to open carry end up expanding the right to concealed carry?  Well, many legal experts in the 2nd Amendment community have held that open carry is protected, but concealed carry may not be.  They point out that laws forbidding concealed carry were on the books and enforced when the 2nd Amendment was passed.  However, we should not see this as a defeat.  Indeed, the road to nationwide concealed carry may very well go through the right to open carry.  The reason is simple:  If there is a right to carry, it is clear that government may prohibit concealed carry and allow open carry - or they may allow open carry and concealed carry - or they may prohibit open carry and allow concealed carry in its' place.  What they cannot do is ban all forms of carry.

It is virtually certain that the two states in the 9th Circuit that currently deny the right to carry (California and Hawaii) will choose to allow citizens to obtain concealed carry permits rather than allow open carry that will result in a huge number of calls to police.  Concealed carry simply causes less disruption and is therefore what they will likely chose.

Where The Case Goes From Here

It is a certainty that Hawaii will appeal this ruling to the entire 9th Circuit (En Banc):

If we win - if the 9th circuit denies En Banc, or if the entire court affirms this ruling - Hawaii will face a huge amount of pressure from other states not to appeal the ruling.  This was the case in the other two cases where federal appeals courts upheld the right to carry (D.C. and Illinois.)  The anti-gun crowd knows full well that they would likely lose at the Supreme Court.  Therefore, I would not expect an appeal should we win the next battle in this case.  The effect of a win before the entire 9th Circuit would be limited to the two "may issue" states in the 9th Circuit - California and Hawaii.

In the much more likely event that we lose before the the entire court, this case will - without question - be appealed to the Supreme Court.  So far, SCOTUS has declined to hear any carry cases - but this time may very well be different.

Currently, we have two definite votes of the four votes needed for the high court to accept a carry case Justices Gorsuch and Thomas.  If confirmed Justice Brett Kavanaugh be a third definite vote.  That means only one more vote is needed to get this case before the court - this is a definite possibility.  Furthermore, two liberal, anti-gun rights justices are older than Justice Scalia was when he passed away - so Pres. Trump may very well make another, pro-gun rights appointment before the appeal is decided.

Should the case make it to SCOTUS, much more than the right to carry is likely to be affirmed.  As I wrote recently, the next gun rights case will likely result in the high court deciding what level of protection or scrutiny lower court must apply to the 2nd Amendment right.  This would bring down most of the restrictive gun laws in states like New York and California.  Even with only a 5-4 conservative majority, the result would likely be a third huge Supreme Court win for gun rights. 

One thing is sure, this is a case we all need to watch!