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Young v. State

United States Court of Appeals, Ninth Circuit

July 24, 2018

George K. Young, Jr., Plaintiff-Appellant,
v.
State of Hawaii; Neil Abercrombie, in his capacity as Governor of the State of Hawaii; David Mark Louie I, Esquire, in his capacity as State Attorney General; County of Hawaii, as a sub-agency of the State of Hawaii; William P. Kenoi, in his capacity as Mayor of the County of Hawaii; Hilo County Police Department, as a sub-agency of the County of Hawaii; Harry S. Kubojiri, in his capacity as Chief of Police; John Does, 1- 25; Jane Does, 1-25; Doe Corporations, 1-5; Doe Entities, 1-5, Defendants-Appellees.

          Argued and Submitted February 12, 2018 Honolulu, Hawaii

          Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, Senior District Judge, Presiding D.C. No. 1:12-cv-00336-HG-BMK

          Alan A. Beck (argued), Law Offices of Alan Beck, San Diego, California; Stephen D. Stamboulieh, Stamboulieh Law PLL, Madison, Mississippi; for Plaintiff-Appellant.

          D. Kaena Horowitz (argued), County of Hawaii Deputy Corporation Counsel; Laureen L. Martin, County of Hawaii Assistant Corporation Counsel; Office of the Corporation Counsel, Hilo, Hawaii; for Defendants-Appellees County of Hawaii, William P. Kenoi, and Harry S. Kubojiri.

          Kimberly Tsumoto Guidry, First Deputy Solicitor General; Robert Tadao Nakatsuji, Deputy Solicitor General; Department of the Attorney General, Honolulu, Hawaii; for Defendant-Appellee and Amicus Curiae State of Hawaii.

          No appearance for Defendants-Appellees Neil Abercrombie and David Mark Louie I.

          Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY [*]

         Civil Rights

         The panel reversed the district court's dismissal of claims brought against the County of Hawaii, dismissed plaintiff's appeal as to the State of Hawaii, and remanded, in plaintiff's 42 U.S.C. § 1983 action alleging that the denial of his application for a handgun license violated his Second Amendment right to carry a loaded firearm in public for self-defense.

         The County of Hawaii's Chief of Police denied plaintiff's application to carry a handgun because he failed to satisfy Hawaii's licensing requirements, as set forth in section 134-9 of the Hawaii Revised Statutes. Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." H.R.S. §§ 134-23, 134-24, 134-25. The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. Plaintiff alleged that the County violated the Second Amendment by enforcing against him the State's limitations in section 134-9 on the open carry of firearms to those "engaged in the protection of life and property" and on the concealed carry of firearms to those who can demonstrate an "exceptional case."

         The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection, see Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) (en banc), it was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. Analyzing the text of the Second Amendment and reviewing the relevant history, including founding-era treatises and nineteenth century case law, the panel stated that it was unpersuaded by the County's and the State's argument that the Second Amendment only has force within the home. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. The panel held that because Hawaii law restricted plaintiff in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment.

         In determining the appropriate level of scrutiny to apply to section 134-9, the panel first held that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment. The panel stated that restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii's limitation on the open carry of firearms to those "engaged in the protection of life and property" violated the core of the Second Amendment and was void under any level of scrutiny.

         Dissenting, Judge Clifton stated the majority opinion disregarded the fact that states and territories in a variety of regions have long allowed for extensive regulations of and limitations on the public carry of firearms. Judge Clifton wrote that such regulations are presumptively lawful under District of Columbia v. Heller, 554 U.S. 570 (2008), and do not undercut the core of the Second Amendment. In addition, Judge Clifton stated that the majority opinion misconceived the intermediate scrutiny test, assumed without support in the record that Hawaii's statute operates as a complete ban, and substituted its own judgment about the efficacy of less restrictive regulatory schemes.

          OPINION

          O'SCANNLAIN, CIRCUIT JUDGE:

         We must decide whether the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.

         I

         A

         George Young wishes to carry a firearm publicly for personal self-defense in the State of Hawaii. He twice in 2011 applied for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii's Chief of Police, Harry Kubojiri, because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes ("H.R.S.").

         Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." H.R.S. §§ 134-23, 134-24, 134-25. The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. H.R.S. § 134-9. Respecting concealed carry, section 134-9 provides that "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police . . . may grant a license to an applicant . . . to carry a pistol or revolver and ammunition therefor concealed on the person." The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is "in the actual performance of his duties or within the area of his assignment." Police Dep't of Cty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct. 22, 1997).

         Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27, and may only use those firearms while "actually engaged" in hunting or target shooting, H.R.S. § 134-5.

         B

         On June 12, 2012, Young filed this suit pro se under 42 U.S.C. § 1983 against the State of Hawaii, its then-Governor, Neil Abercrombie, and its then-Attorney General, David Louie (collectively "the State"), as well as the County of Hawaii, its then-Mayor, William Kenoi, the Hilo County Police Department, and its then-Chief of Police, Harry Kubojiri (collectively "the County"). Primarily alleging that denying his application for a handgun license violates his Second Amendment right to carry a loaded firearm in public for self-defense, Young requested, among other things, injunctive and declaratory relief from the enforcement of section 134-9's licensing requirements.

         The State filed a motion to dismiss Young's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the County filed a motion to dismiss the claims under Rule 12(b)(6). The district court granted both. As for the State of Hawaii, the district court found Young's action to be barred by sovereign immunity. Young's action against the State officials-while not barred by sovereign immunity under Ex Parte Young, 209 U.S. 123 (1908)-was dismissed because the district court found their general oversight of the enforcement of Hawaii's laws "insufficient to establish a nexus between [such] officials and the alleged violation of [Young's] civil rights."

         Dismissing Young's action against the County on the merits, the district court found that section 134-9 "does not implicate activity protected by the Second Amendment," because that Amendment "establishes only a narrow individual right to keep an operable handgun at home for self-defense." In the alternative, the district court indicated that it would uphold section 134-9's open and concealed carry limitations under intermediate scrutiny. As the court reasoned, the State's "substantial interest in safeguarding the public from the inherent dangers of firearms" was reasonably furthered by policies that "enable[] officials to effectively differentiate between individuals who need to carry a gun for self-defense and those who do not."

         Young timely appealed.[1]

         II

         A

         Young's argument is straightforward: he asserts that the County has violated the Second Amendment by enforcing against him the State's limitations in section 134-9 on the open carry of firearms to those "engaged in the protection of life and property"[2] and on the concealed carry of firearms to those who can demonstrate an "exceptional case."[3]

         1

         The County and the State respond that Young's claim is foreclosed by our en banc decision in Peruta v. County of San Diego (Peruta II), 824 F.3d 919 (2016) (en banc), which overturned a three-judge panel's decision striking down a concealed carry licensing regime, see Peruta v. County of San Diego (Peruta I), 742 F.3d 1144 (9th Cir. 2014).

         In Peruta II, we considered a challenge to San Diego's limitations on the concealed carry of handguns outside of the home. 824 F.3d at 924. California law generally prohibits carrying firearms in public, whether concealed or openly. See Cal. Penal Code §§ 25400, 25850, 26350. But San Diego County leaves open the opportunity to carry a concealed firearm upon the demonstration of "good cause." See Peruta II, 824 F.3d at 926. Rejecting Peruta's challenge, our en banc court held that "the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public." Id. at 939 (emphasis added). But, as even the dissent acknowledges, our court explicitly left unresolved the question of whether the Second Amendment encompasses a right to open carry. See id. ("There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here."). Young's claim therefore picks up where Peruta's left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense.

         2

         Our interpretation of the Second Amendment is guided by the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010). In Heller, the Court invalidated a District of Columbia ban on handgun possession in the home, holding that the Second Amendment guarantees an individual right to keep a handgun in one's home for self-defense, and rejecting a collective view of the right. See 554 U.S. at 635. Because the District of Columbia law had completely banned "the quintessential self-defense weapon" within the home, the Court saw no need to clarify further the scope of the right or the level of scrutiny it demands. See id. at 629. "Under any of the standards of scrutiny that [the Court has] applied to enumerated constitutional rights," such a severe deprivation must fail. Id. at 628-29.

         In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. 561 U.S. at 750. In determining whether the pre-existing right codified by the Second Amendment was "fundamental to our scheme of ordered liberty," the Court stressed the centrality of self-defense: "Self-defense is a basic right, recognized by many legal systems from ancient times to the present day . . . ." Id. at 767. Consequently, the Court held it "clear that this right is 'deeply rooted in this Nation's history and tradition, '" thus binding the States alongside the federal government. Id. at 768 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)); see also id. at 805-06 (Thomas, J., concurring in part and concurring in the judgment) (agreeing that the Second Amendment is "fully applicable to the States," but via the Fourteenth Amendment's Privileges or Immunities Clause).

         As was the case in Peruta II, we find ourselves navigating waters uncharted by Heller and McDonald: the degree to which the Second Amendment protects, or does not protect, the carrying of firearms outside of the home.

         B

         Our circuit, like others, employs a two-step approach to Second Amendment challenges. See Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014); see also United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). We first ask "whether the challenged law burdens conduct protected by the Second Amendment." Jackson, 746 F.3d at 960 (quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)). If so, we must "apply an appropriate level of scrutiny." Id. And because Heller makes clear that evaluating restrictions of Second Amendment rights under rational basis review is inappropriate, see 554 U.S. at 628 n.27, any means-end scrutiny applied must be some form of heightened scrutiny, such as intermediate or strict scrutiny. Of course, we remain ever mindful not to treat the Second Amendment any differently from other individual constitutional rights. It is not "a second-class right," McDonald, 561 U.S. at 780, nor a "constitutional orphan," Silvester v. Becerra, No. 17-342, 2018 WL 943032, at *8 (U.S. Feb. 20, 2018) (Thomas, J., dissenting from denial of certiorari).

         Heller and McDonald set the goalposts for our inquiry, which requires determining the scope of the Second Amendment with respect to public carry. We must discern the scope of the Amendment not as it appears to us now, but "with the scope [it was] understood to have when the people adopted [it]." Heller, 554 U.S. at 634-35. Our lodestars are "text and history," id. at 595, because they bear most strongly on what the right was understood to mean, at the time of enactment, to the public. Because "words and phrases were used in their normal and ordinary as distinguished from technical meaning," id. at 576 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)), our approach is not just a textual one, but also a contextual one. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at xxv (2012) ("Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words."). History and convention, therefore, illuminate our understanding of the text.

         We are not the first circuit to grapple with how far, and to what extent, the Second Amendment applies outside the home. Two circuits, looking closely at the text and history of the Amendment, have held that the Second Amendment indeed protects a general right to carry firearms in public for self-defense. See Wrenn v. District of Columbia, 864 F.3d 650, 665 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 936-37 (7th Cir. 2012).[4] Three others have simply assumed the Second Amendment applies outside the home, without delving into the historical nature of the right. See Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Kachalsky v. Cty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012).

         III

         A

         We start, as we must, with the text. The Second Amendment provides: "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." U.S. Const. amend. II. It is apparent from the face of the text that the Amendment protects the right not only to "keep" but also to "bear" arms. The latter verb is central to Young's challenge.

         Heller provides useful guidance. To "bear," the Court explained, means to "wear" or to "carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defense action in a case of conflict with another person." Heller, 554 U.S. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). And Heller explained that "bear arms" did not solely refer to carrying a weapon as part of a militia. Id. at 585. Rather, to "bear" an object means to carry it, and "[w]hen used with 'arms,' . . . the term has a meaning that refers to carrying for a particular purpose- confrontation." Id. at 584.

         The prospect of confrontation is, of course, not limited to one's dwelling. See Wrenn, 864 F.3d at 657 ("After all, the Amendment's core lawful purpose is self-defense, and the need for that might arise beyond as well as within the home." (internal quotations and citations omitted)); Moore, 702 F.3d at 941 ("[T]he interest in self-protection is as great outside as inside the home."). Thus, carrying firearms outside the home fits comfortably within Heller's definition of "bear."

         Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. A right to "keep" arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to "keep" arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms "implies a corresponding right to acquire and maintain proficiency in their use"). The addition of a separate right to "bear" arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. See Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880) ("[T]o bear arms implies something more than mere keeping."). Understanding "bear" to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between "keep" and "bear" to avoid rendering the latter guarantee as mere surplusage. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ("[I]t cannot be presumed that any clause in the constitution is intended to be without effect . . . .").

         Heller and McDonald suggest a similar understanding of "bear." Heller described the "inherent right of self-defense" as "most acute" within the home, implying that the right exists, perhaps less acutely, outside the home. 554 U.S. at 628.[5] McDonald similarly described the right as "most notabl[e]" within the home, implying the right exists, perhaps less notably, outside the home. 561 U.S. at 780. Heller also identified "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as presumptively lawful. 554 U.S. at 626. Why bother clarifying the definition of sensitive public places if the Second Amendment did not apply, at all, to any public place?[6]

         In short, the text of the Amendment, as interpreted by Heller and McDonald, points toward the conclusion that "bear" implies a right to carry firearms publicly for self-defense.[7]

         B

         We next consider the writings of "important founding-era legal scholars" to discern the original public understanding of the Second Amendment right, because, as Heller explains, "[t]hat sort of inquiry is a critical tool of constitutional interpretation." 554 U.S. at 605; see also Jackson, 746 F.3d at 960, 962-63.

         Several legal treatises that were in wide circulation throughout the founding era support our textual understanding of "bear arms." In an early American edition of Blackstone's Commentaries on the Laws of England- indeed, the "most important" edition, as Heller points out, see 554 U.S. at 594-St. George Tucker, a law professor at the College of William & Mary and former influential Antifederalist, insisted that the right to armed self-defense is the "first law of nature" and that "the right of the people to keep and bear arms" is the "true palladium of liberty." 1 St. George Tucker, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia app. n.D. at 300 (Phil., William Young Birch & Abraham Small 1803); see also McDonald, 561 U.S. at 769 (treating Tucker's notes on Blackstone as heavily instructive in interpreting the Second Amendment); Heller, 554 U.S. at 606 (same). And in advocating for the prerogative of the Judiciary to strike down unconstitutional statutes, Tucker wrote: "If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, . . . would be able to pronounce decidedly upon the constitutionality of these means." Tucker, supra, at 289; see also Michael P. O'Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of "Bearing Arms" for Self-Defense, 61 Am. U. L. Rev. 585, 637-38 (2012). Indeed, as Tucker explained, "[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side." Tucker, supra, vol. 5, app., n.B, at 19.

         Blackstone himself espoused a similarly sacred view on the right to bear arms for Englishmen, which was most notably codified in the 1689 English Declaration of Rights as the right of Protestants to "have Arms for their Defense suitable to their Conditions and as allowed by Law." Bill of Rights 1689, 1 W. & M., c. 2 (Eng.); see also Alden v. Maine, 527 U.S. 706, 715 (1999) (noting that Blackstone's works "constituted the preeminent authority on English law for the founding generation"). As Blackstone explained, the 1689 Declaration enshrined "the natural right of resistance and self-preservation" and "the right of having and using arms for self-preservation and defence." 1 William Blackstone, Commentaries *144.[8] It followed from Blackstone's premise that such a right, the predecessor to our Second Amendment, "was by the time of the founding understood to be an individual right protecting against both public and private violence." Heller, 554 U.S. at 594 (emphasis added); see also 2 William Blackstone, Commentaries on the Laws of England 441 (Edward Christian ed., 1795) ("[E]veryone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.").

         C

         Following Heller's historical imperative, we next move to nineteenth century judicial interpretations of the right to bear arms, whether as part of the Second Amendment or analogous state constitutional provisions. See 554 U.S. at 605 ("We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century."). As we will soon discover, many of the same nineteenth century cases marshalled in Heller to prove that the Second Amendment secures an individual right to self-defense reveal just as persuasively that the Second Amendment must encompass a right to carry a firearm openly outside the home.

         1

         We begin with Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), cited in Heller, 554 U.S. at 585 n. 9, a decision "especially significant both because it is nearest in time to the founding era and because the state court assumed (just as [Heller] does) that the constitutional provision at issue codified a preexisting right." Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1360 (2009). Interpreting Kentucky's Second Amendment analogue-providing that "the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned"-the state's highest court had no doubt that any law restricting the public carry of firearms would "import a restraint on the right of the citizens to bear arms." Bliss, 12 Ky. at 90-92. The court then invalidated a restriction on the concealed carry of weapons, despite the availability of open carry, reasoning that "whatever restrains the full and complete exercise of [the right to bear arms], though not an entire destruction of it, is forbidden by the explicit language of the constitution." See id. The Bliss court's strict approach to restraints on the concealed carry of firearms was an outlier in the Nineteenth Century, see Peruta II, 824 F.3d at 935- 36, and Kentucky did later amend its constitution to allow the legislature to "pass laws to prevent persons from carrying concealed arms," Ky. Const. art. XIII, § 25. Nonetheless, the Kentucky constitutional convention left untouched the premise in Bliss that the right to bear arms protects open carry.

         In Tennessee, the state's highest court offered its interpretation of the right to bear arms eleven years after Bliss. See Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833), cited in Heller, 554 U.S. at 585 n.9. After he was convicted of disturbing the peace by appearing armed in public, Simpson faulted the indictment for failing clearly to require proof of actual violence. Id. at 357-58. The high court agreed, because-even assuming that colonial law did not require proof of actual violence to punish colonists for walking with weapons-the Tennessee "constitution ha[d] completely abrogated it." Id. at 360. No such prohibition could survive the state constitution's grant of "an express power . . . secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature." Id. Absent an act of violence, then, Simpson's indictment for merely carrying firearms could allege no crime tolerable to the constitution of Tennessee. See id. at 360-62.

         The Alabama Supreme Court joined the chorus seven years later. See State v. Reid, 1 Ala. 612 (1840), cited in Heller, 554 U.S. at 629. Interpreting the Alabama "right to bear arms, in defense of []self and the State," the high court declared that an Alabamian must be permitted some means of carrying a weapon in public for self-defense. Id. at 615- 16. The court ultimately upheld a restriction on "the evil practice of carrying weapons secretly," citing the legislature's power "to enact laws in regard to the manner in which arms shall be borne. . . . as may be dictated by the safety of the people and the advancement of public morals." Id. at 616. But the court made clear where that power of the legislature ran dry:

We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.

See id. at 616-17.

         The Georgia Supreme Court embraced precisely that position six years later, making explicit what Reid intimated. See Nunn v. State, 1 Ga. 243 (1846), cited in Heller, 554 U.S. at 612, 626, 629. There, the Georgia high court considered a Second Amendment challenge to a statute creating a misdemeanor for carrying a pistol, either openly or concealed. Id. at 246. Starting off with a clear statement of the constitutional guarantee, the court explained: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree . . . ." Id. at 251 (emphasis omitted). And with those Second Amendment lines properly set, the court held that Georgia's statute went too far:

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void . . .

Id. (emphasis added). Critically, we must afford Nunn's understanding of the Second Amendment a good deal of weight, because, as Heller explains, "[i]ts opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause." 554 U.S. at 612; see also O'Shea, supra, at 627 ("No case, historic or recent, is discussed more prominently or positively in Heller than the Georgia Supreme Court's 1846 decision in Nunn v. State.").

         The Louisiana Supreme Court soon followed the course set by Alabama and Georgia. See State v. Chandler, 5 La. Ann. 489 (1850), cited in Heller, 554 U.S. at 613, 626. The high court first rejected Chandler's Second Amendment challenge to a Louisiana law prohibiting concealed carry, reasoning that the law was "absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons." Id. at 489-90. But, in precisely the same manner as the Nunn and Reid courts, the Chandler court drew the line which the legislature could not cross. As the court explained: "[The prohibition on concealed carry] interfered with no man's right to carry arms . . . 'in full open view,' which places men upon an equality. This is the right guaranteed by the Constitution of the United States . . . ." Id. at 490; see also Heller, 554 U.S. at 613 (citing favorably Chandler's holding that "citizens had a right to carry arms openly").

         Thus, each of these nineteenth century cases found instructive by Heller when settling the Second Amendment as an individual right to self-defense is just as instructive when evaluating the application of that right outside the home. While nineteenth century legislatures enjoyed latitude to regulate the "manner in which arms shall be borne," no legislature in these states could, "under the pretence of regulating," destroy the right to carry firearms in public altogether. See Reid, 1 Ala. at 616-17. Accordingly, even though our court has read these cases to exclude concealed carry from the Second Amendment's protections, see Peruta II, 824 F.3d at 933-36, the same cases command that the Second Amendment must encompass a right to open carry.[9]

         2

         We are well aware that there were judicial proponents of a more limited right to bear ...


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