Ninth Circuit Court’s Peruta decision to make Hawaii a shall-issue concealed carry state

It seems the Ninth Circuit court’s Peruta decision will make Hawaii a shall-issue concealed carry state, as the ramifications of the February Peruta v. San Diego County decision continue to work their way through the lower courts. The District Court in Hawaii had previously rejected Christopher Baker’s complaint against state agencies that denied him a concealed carry license in Baker v. Kealoha. But following the Peruta decision, the Ninth Circuit court ordered the lower court to reexamine the case and hold “further proceedings consistent with Peruta.”

Christopher Baker had filed suit to legally carry, either openly or concealed, firearms in public. The District Court denied him, “concluding in part that Baker was not likely to establish that Hawaii’s restrictions on carrying firearms in public were unconstitutional under the Second Amendment, and therefore, Baker was not likely to succeed.” However, the Ninth Circuit disagreed when they ruled the Second Amendment does confer a right to bear arms outside the home in Peruta, and remanded the case back to the lower court. The Ninth Circuit said:

"we concluded that the Second Amendment provides a responsible, law-abiding citizen with a right to carry an operable handgun outside the home for the purpose of self-defense. In light of our holding in Peruta, the district court made an error of law when it concluded that the Hawaii statutes did not implicate protected Second Amendment activity. Accordingly, we vacate the district court’s decision denying Baker’s motion for a preliminary injunction and remand for further proceedings consistent with Peruta."

There are still formalities that must occur before Hawaii’s law is removed, but it appears it is only a matter of time before Hawaii will become the latest state to recognize that the Second Amendment allows lawful carry of firearms outside of the home. Court time is not necessarily speedy. As Eugene Volokh, of The Volokh Conspiracy, wrote in the Washington Post:

"[T]he writing is on the wall. Of course, if the Ninth Circuit agrees to rehear Peruta en banc and then reverses it, or if the U.S. Supreme Court agrees to hear Peruta and then reverses it, then the foundation for the Baker decision will be reversed, too. And if the defendants in Baker petition the Ninth Circuit for rehearing or the U.S. Supreme Court for certiorari (and get a stay of the Ninth Circuit’s judgment in the meantime), then the Baker decision won’t have to be implemented until all those proceedings are over. So there’s still a ways to go, I suspect, before Hawaii goes “shall-issue,” so that any law-abiding adult can get a license to carry concealed."

However, as Brenner Brief had reported previously, the Ninth Circuit ruled the right to keep and bear arms is, in and of itself, a sufficient cause for bearing arms for self-defense both inside and outside of the home. Judge O’Scannlain’s majority opinion emphasized “the right to bear arms includes the right to carry an operable arm outside the home for the lawful purpose of self-defense.” The courts said the Second Amendment must be read as including “the right to carry weapons outside the home” because “the risk of armed confrontation” is in no way limited to one’s home.

The Peruta decision is based on several Supreme Court decisions, primarily D.C v. Heller and McDonald v. Chicago. The Supreme Court ruled in Heller, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” As this author has previously written, the ruling says “for lawful purposes” – plural – “such as self-defense within the home”, meaning self-defense within the home is one of several lawful purposes. The Court explicitly mentions several other lawful purposes in Heller that do not logically restrict the Second Amendment to the home, including hunting, resisting tyranny from government, repelling an invasion, and suppressing an insurrection. Heller also reaffirms the court’s prior definition of “bear arms” in Muscarello v. United States that “surely a most familiar meaning is, as the Constitution’s Second Amendment indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” McDonald held that the Second Amendment rights applied to the states via the Due Process clause of the Fourteenth Amendment. Based on these decisions, the Ninth Circuit found: “people are more sensibly said to ‘bear Arms’ in nondomestic settings… self-defense, recognized since ancient times as a ‘basic right’, is the central component of the Second Amendment… consequently, that right restricted not only the Federal government but under the Fourteenth Amendment, also the states.”

If the lower court sends Baker back to the Ninth Circuit, or if it ends up before the Supreme Court, it seems likely either court will rule based on the precedent set in these landmark cases. The lower court may simply reverse its decision based on the Ninth Circuit’s Peruta decision. It seems inevitable though that Hawaii will eventually have to concede the point and rule in favor of allowing lawful carry of firearms in public.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

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This article also appears on The Brenner Brief. (Original publication April 16, 2014).