This article was published by The McAlvany Intelligence Advisor on Monday, July 30, 2018:
With two pro-Second Amendment decisions coming from the notoriously progressive and anti-gun Ninth Circuit Court of Appeals in just the last two weeks, anti-gun liberals on that court have been painted into a corner. If they override by taking either or both rulings “en banc,” it gives the Supreme Court – about to be newly formatted in favor of the Constitution and the Second Amendment by Judge Brett Kavanaugh – a welcome chance finally to clarify and amplify its previous rulings in Heller and McDonald if their decision(s) are appealed.
If they leave in place both decisions, made by three-judge panels ruling on Second Amendment issues in California and Hawaii, the implications across the entire circuit would be momentous.The court hears appeals from lower courts in Alaska, Arizona, California, Idaho, Montana, Oregon and Washington. The court’s reputation as the most progressive circuit court in the country is duly earned, as it represents the heavily Democratic leaning of the court’s judges. With 16 judges having been appointed by Democrat presidents and just seven appointed by Republican presidents, it boasts one of the highest reversal rates on appeal to the Supreme Court.
Two weeks ago, a three-judge panel from the Ninth Circuit affirmed a lower court’s injunction that temporarily blocked a California law that not only banned so-called “large capacity” magazines but required their confiscation from owners who didn’t “voluntarily” surrender them.
Last week, a different three-judge panel from the Ninth Circuit declared that Hawaii County resident George Young had his rights violated when he was denied a permit to carry a gun in public for self-defense. The decision overturned a lower court’s ruling that the Second Amendment right only applies to firearms kept at home.
What’s ironic is that Young, a Chinese-Hawaiian Vietnam veteran living in Hilo, was allowed to carry as an infantryman for 21 years, and as a law enforcement office afterwards, followed by a period of employment by the Secret Service. But once he became an ordinary citizen, his right to carry evaporated. Said Young, upon learning of the favorable decision, “It’s about time … the world’s getting crazier. They’re making it legal to smoke marijuana, and they’re letting in a lot of illegal immigrants. It was just a matter of having [my sidearm] available if and when I need it.”
In the two-to-one ruling, Senior Circuit Judge Diamuid O’Scannlain wrote that “the right to bear arms must include, at the least, the right to carry a firearm openly for self-defense.” The ruling made clear that “the typical, law-abiding citizen” must have access to that right and not just to “a small and insulated subset” of citizens.
This ruling makes it clear that if a majority revisits these decisions and reverses them, the case will not only likely be appealed to the Supreme Court when it reopens in October, it lays the groundwork for a reversal and the opportunity for the Court to extend, expand, and amplify its rulings in Heller and McDonald. To reverse, the “en banc” ruling would have to declare that the Second Amendment doesn’t mean what it clearly states, or that it only applies to a few select individuals and not to the entire population at large.
If either of these three-judge panel’s rulings are considered by the whole court – “en banc” – in order to overturn them the majority must heavily misconstrue the plain meaning of the Second Amendment from an originalist point of view by holding either that the right only applies inside a citizen’s home, or it only applies to a favored few. As the National Rifle Association (NRA) editorialized, “the anti-gun wing of the Ninth Circuit has few maneuvers left to continue to deny the constitutional right of bear firearms in pubic. It would either have to be the first circuit [court] to declare there is not such right at all, or decide that a right the Constitution ascribes to “the people” applies only to a hand-selected few.”
David French, a constitutional attorney and senior fellow at the National Review Institute, explained the extraordinary implications:
If the [Supreme] Court takes [either case on appeal] it will have an opportunity to reset the gun-control debate. If it rules that weapons in common use for lawful purposes enjoy categorical constitutional protection [under the Second Amendment], then most assault-weapons bans and large-capacity-magazine bans would fall.
NationalReview.com: The Ninth Circuit Shows Us How to Protect Gun Rights
NationalReview.com: The Ninth Circuit Protects Gun Rights and Stops Confiscation
StarAdvertiser.com: Hilo veteran has pushed for gun rights for 6 years