In our January 8, 2019 blog post “Look Out Below”, we discussed the Ninth Circuit Court of Appeals panel decision in Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018). In that case, a three-judge panel in the Ninth Circuit reversed a Hawaii good reason permitting scheme that effectively prohibited the average citizen from openly carrying firearms outside the home. The State of Hawaii petitioned the full Ninth Circuit Court of Appeals to reconsider the panel’s decision, and, not surprisingly, on February 8, 2019, the Ninth Circuit granted Hawaii’s petition for the full court to re-hear the case (known as en banc review). In view of the Ninth Circuit’s strongly anti-gun history, we expect the en banc court of appeals to side with Hawaii. If it does so, it will vacate the three-judge panel’s decision (which protected open carry in Hawaii on Second Amendment grounds) and reinstate the Hawaii trial court’s decision, which effectively banned open carry.
To some extent this is now a tempest in the Ninth Circuit’s teapot, because we expect the Supreme Court to decide, in New York State Rifle & Pistol Association v. City of New York, No. 18-280 (hereinafter “NYSRPA”), that good reason permitting schemes like the ones in New York and Hawaii are unconstitutional. The Supreme Court granted certiorari in NYSRPA on January 22, 2019, and that case is expected to be argued before the Supreme Court in the fall. Take a look at our January 8 and February 7, 2019 blog posts “Look Out Below” and “Supreme Court Update” for an in-depth analysis of the public carry issues raised in Young and NYSRPA.