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Army Vet Plans to Appeal Ninth Circuit Ruling Against Gun Carry

Stephen Gutowski - Washington Free Beacon  | Published on 3/31/2021

The veteran behind the challenge to Hawaii's restrictive open-carry law plans to petition the Supreme Court to hear his case after losing in the Ninth Circuit, his lawyer told the Washington Free Beacon on Wednesday. 

"We're planning on filing for a writ of certiorari," Alan Beck, the lawyer for native-Hawaiian veteran George Young, said. "We're not letting this lie."

Young argues Hawaii is effectively banning open carry in the state by refusing to issue any permits to civilians regardless of their background or skill level. A federal judge sided with him in 2018 and struck down the law, but on Wednesday the Ninth Circuit threw out his challenge in a 7-to-4 vote. The court said, in part, the Second Amendment does not extend to the open carry of guns. 

"There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment," the majority said in the ruling.

The Ninth Circuit previously ruled concealed gun carry is not protected by the Second Amendment in a case against California's restrictive laws. Beck said the two cases set a clear marker that the Ninth Circuit does not believe the Second Amendment protects any gun-carry right. He said the court's decision was "disappointing" but argued it may actually push the Supreme Court to take up a gun-carry case sooner than it otherwise might have.

"The Ninth Circuit just became the first court of appeals to expressly state that the Second Amendment right does not apply to armed self-defense outside the home," Beck told the Free Beacon. "Therefore, it is expressly split with the Seventh Circuit, the D.C. Court of Appeals. That opens up the possibility of Supreme Court review." 

Gun advocates have been loading up new cases in the federal court system since the appointment of Justice Amy Coney Barrett in October. Experts predicted her "text, history, and tradition" approach to deciding gun cases could revolutionize the way federal courts consider strict gun laws and result in more of them being struck down. The Court, however, has yet to take up a gun case since her confirmation.

Jake Charles, executive director of Duke University's Center for Firearms Law, said the new ruling from the Ninth Circuit is likely to spur a Supreme Court review. While he does not believe the Ninth Circuit's ruling is meant to be read as broadly as Beck does, Charles said it provides further contrast among the lower courts on the issue. He pointed to Corlett, a case challenging New York's restrictive concealed-carry law that the court will consider taking up on Friday, as a case the Supreme Court may be more eager to hear after Wednesday's ruling.

"I do think that having the public carry issue teed up in Corlett at the same time Young was decided probably does increase the chances that we see a grant in Corlett," Charles said. "Much of it hinges on what kind of case the justices want to take to start establishing some more guidance for lower court cases."

Young, who initially brought his case without any assistance from a lawyer, may soon get his day before the Supreme Court. The retiree has said he mainly wants to be able to carry a gun to fend off aggressive wildlife when he goes fishing. His willingness to carry the issue to the Supreme Court is born out of a desire to restore gun rights to Hawaiians but also a personal promise he made to his late daughter when he first began his fight.

"It was my last promise to her," Young told the Free Beacon in 2018. "She said, ‘Well, you've got to fight the state,' and I said, ‘Okay, here we go.'"