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I recently discovered that if you walk around New York City while carrying a colonial-era musket, you get a lot of questions.

You gonna shoot some redcoats?

Wheres your well-regulated militia?

What the hell, man?

Questions aside, a musket can come in handy. When I arrive at my local coffee shop at the same time as another customer, he tells me: You go first. Im not arguing with someone holding that thing.

Why am I carrying around a 1795 firearm? Well, its because Im deep into Project Constitution. Ive pledged to live by the US constitution as strictly and literally as possible. I want to see what its like to be the ultimate originalist.

I got the idea after the US supreme courts latest controversial term. As you might know, its the most conservative court in decades. It overturned Roe v Wade, saying that the constitution does not guarantee a right to abortion. It bolstered gun rights and took power away from the Environmental Protection Agency.

This is, in large part, because several justices adhere to a philosophy called originalism in some form or another. The main gist of originalism is that we should follow the original meaning of the constitution as it was understood when it was first implemented in 1789 (or, if the decision involves one of the constitutions amendments, whenever that was ratified).

So I figured: what if we took this to its logical endpoint?

To be fair, there are many versions of originalism, and no originalist would go as far as I do. Originalists argue that the constitution doesnt require you to opt for muskets over modern guns. Instead, a good originalist takes the centuries-old principles of the constitution and applies them to the current day, using history and tradition as a guide. So the right to privacy, originally meant to stop the constable banging on your door, now applies to your smartphone.

Fair enough. But it seems to me and many other observers that the courts originalists can be pretty stingy when it comes to updating, especially if it involves womens rights, gay rights or environmental regulations. One of the dangers of originalism is that the people who practise it can easily get too frozen in history, and I think thats what some members of the court did this term, says Glenn Smith, a constitutional law professor at California Western School of Law. Theyve let their hidebound sense of history overcome a reasonable originalist approach.

More than that, originalism can be wildly inconsistent. Sometimes a certain constitutional right is interpreted as narrowly as possible Clarence Thomas, the most hardcore originalist on the current supreme court, doesnt believe the liberty recognised in the 14th amendment can expand to include gay marriage, since the drafters never conceived of gay marriage. Other times, a right can be stretched to the breaking point. Most originalists say the right to bear arms covers muskets as well as AR-15 semi-automatic rifles, even though they are arguably vastly different.

So what if I try to be consistent? What if I always apply the narrowest interpretation, avoiding the hubris of assuming I know what the countrys founding fathers would have thought? What if I adhere to the strictest version of what was written in 1789 or, in the case of the later amendments, what was written in 1791 or the 1870s? After all, I want to be prepared in case originalism gets even more extreme.

My Month of Living Constitutionally led me on a weird, enlightening and often deeply awkward journey. I handed out pamphlets, I fetched my own water, I annoyed my wife.

Here is the tale.

As a journalist, Ive always been grateful to the founding fathers for the right to free speech. But Ive learned the 18th-century idea of free speech was startlingly different from todays both in how we communicate and in what is allowed.

First, theres the method I use to express free speech: Twitter. Fortunately for the founding fathers, theirs was a world of paper and ink. It seems to me Twitter is like the AR-15 of speech. Its another animal altogether. To be safe, I decide to stick to the 18th-century version of Twitter: pamphlets.

I order a quill pen and parchment paper, and scratch out a dozen analogue tweets, one on each piece of yellowed paper.

I go to midtown Manhattan to hand out my mini-pamphlets. Its harder than I thought. Most people skilfully avoid my gaze, looking at the pavement, the skyline, anywhere but my face.

Finally, I approach a woman waiting for the light to turn green and read her my tweet out loud: I find it egotistical that we capitalize the word I but not he or she or they.

Yeah, she says. I guess thats interesting.

Do you want to take my pamphlet?

No, I do not.

As mixed as the reaction is, it still feels better than the Twitter cesspool. Just seeing people face to face has a healthy effect.

Now I should mention one other thing: to get fully into the founding fathers mindset I was wearing an Alexander Hamilton costume. This is not constitutionally mandated. But Ive found that there are advantages to dressing the part. The outer often affects the inner. With my tricorn hat, I somehow felt more dignified (even though I was mistaken for both a pirate and Napoleon but, oddly, not Hamilton).

Back in constitutional times, there was another big first amendment difference: the content of speech was much more restricted. Governmental limitations of expressive freedom were commonplace, law professor Jud Campbell wrote in the Yale Law Journal in 2017. Blasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation.

It wasnt quite Stalins Russia, but it wasnt a free-for-all. You could be arrested for insulting God or trashing the president. Whats more, according to influential originalist judge Robert Bork, the first amendment only referred to prior restraint, meaning that the government couldnt stop you from buying a printing press. But it could punish you afterwards for what you published.

This will be fun, I think. I get to be a puritanical censor to my kids and blame it on the constitution. When my son drops his iPhone and says: Goddammit! I reply: That is unprotected speech. Say Gosh darn it!

Then I go on Twitter (I know, Im a hypocrite) and open an account under the name OriginalDude89.

I reply to people calling President Biden or Republican senator Lindsey Graham traitors. You realise your seditious comments are not protected by the first amendment, at least as it was conceived of by the founders, right? You could be prosecuted if this were the 1790s. Please remove.

One responds: LMFAO whatever dude!

The 14th amendment, which guarantees equal protection, is beloved by liberals, who believe it extends to gay rights and womens rights, among others. Most liberals adhere to a philosophy called the living constitution the idea that rights and meanings in the constitution evolve to fit the times.

Uber-originalists have a much narrower view. The 14th amendment was ratified after the civil war, in 1868, and should therefore only apply to the rights as understood in 1868. It was passed to guarantee rights to Black men, recently freed from slavery. Antonin Scalia, the famously conservative justice who served until his death in 2016, argued that the constitution didnt say anything about gender-based discrimination.

In 1868, women couldnt vote, and in many states couldnt hold certain jobs. This is going to be tricky.

For instance, just five years after the ratification of the 14th amendment, the supreme court upheld Illinois decision to deny a law licence to a woman based on her gender. I email the lawyer who works with my book publisher.

Dear Michelle:

For the duration of this experiment, Im afraid I cant deal with you on legal matters related to my books and articles. Nothing personal!

Id be happy to deal with any male colleagues of yours in the meantime.

Thank you.

I feel like a huge dick pressing send.

Likewise, in 1868 married women in many states couldnt sign contracts. My wife Julie is president of an events business, and prepares and signs several contracts a day.

I tell her that, from the point of view of the constitutions drafters, this activity isnt protected. I might have to take over.

Great! she says, moving from her desk to the couch and picking up a magazine. Ill be over here if you have questions.

Thus commence several hours of me trying to navigate confusing and irritating paperwork. I have to ask Julie so many questions about cancellation policies and pricing that she eventually fires me.

This isnt helping me, she says.

In addition to sexism, I have to address racism. The original 1789 constitution contained notoriously racist parts that slave-holding states insisted be included. For instance, enslaved Black people only counted as three-fifths of a person for the purposes of calculating congressional representation.

Luckily I dont have to follow that particular egregious rule. It was overturned by three post-civil war amendments.

But of course that doesnt mean the 14th amendments promise of equal protection immediately got rid of constitutionally permitted racism. For instance, Black men could vote, but in many states they could not marry a white woman.

As legal scholar Elie Mystal writes in Allow Me to Retort: A Black Guys Guide to the Constitution: The people who ratified the 14th amendment hated Black people marrying white people Either our understanding of the 14th amendment evolved to include a rejection of racist anti-miscegenation laws, or it didnt. If the 14th amendment doesnt evolve, Alabama could force people to submit pure-blood certifications from Ancestry.com before issuing marriage licenses.

It was not until 1967 that the supreme court ruling lifted intermarriage bans nationwide. Thankfully, today even the most ardent originalist would say interracial marriage is protected. But since Im being strict as possible about hewing to the original vision, I guess I shouldnt. Which is a horrible thing to contemplate.

I call up my sister. She is married to a man from Peru with mixed Latin and indigenous heritage. I explain that her marriage, from an 1868 viewpoint, would probably have been seen as an interracial marriage, which would have been banned in some states.

So American history has a lot of racist assholes not a huge surprise, she says. You know I want to be supportive, but this is crazy.

Agreed.

I guess I could send you back your wedding gift, she suggests.

That could work Ill hold on to the wine glasses I gave her till the project ends.

Actually I think I wont send them, she adds. You can come and pick them up if you want.

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At least the pamphlet escapade had some redeeming value. This was just plain terrible.

Its time to return to the second amendment. Originalists argue that 2A didnt just apply to muskets. Scalia wrote in a 2008 opinion that the amendments central component was about individual self-defence the amendment applies to bearable arms not in existence at the time of the founding. So it can be stretched to include todays weapons.

Ironically, when it comes to guns, some liberals argue we need to hew more closely to the original worldview. They say muskets and AR-15s are just too different. One shoots four rounds a minute, the other can shoot dozens. Liberals argue its like taking a law written for bicycles and applying it to an 18-wheeler truck. The fact that we use the same word to describe them is almost an etymological coincidence, says Peter Shamshiri, co-host of 5-4, a podcast about the supreme court.

To avoid hubris, Im going to stick with muskets and exercise my 2A rights by getting one. Ive never owned a gun, though I was on the rifle team at my summer camp, so I guess thats something.

I call up a Texas store called Collectors Firearms. I have my eye on a model 1795 flintlock musket. Its crazy expensive $2,000 but the cheapest one I could find. A salesman named Nico answers the phone. I tell him Im interested, but I want to make sure it works.

Yes, it should fire. But since its an antique, we dont recommend shooting it.

Why not?

There is a chance of catastrophic failure.

That doesnt sound great. But what does it actually mean? Basically, Nico explains, it could explode in my face.

Well, nothing ventured, nothing gained. I give him my credit card number.

Three days later, the musket arrives. Its 5ft almost as tall as my wife. I know it was once a deadly weapon it may have even killed someone but Im struck by how elegant it is: dark wood, intricate metal fixings. Its also heavy. Im amazed the revolutionary soldiers were able to carry these all day. And though Im not a gun guy, I also have to acknowledge that this object helped the Americans win the revolution. Im surprised by my desire to keep this historic relic even after my project ends.

So how do I shoot it? I watch a bunch of YouTube videos. Its quite a process. Take out a cartridge (paper tube filled with lead ball and powder). Bite off top. Spit. Open pan. Pour some powder in the pan. Pour rest of powder, along with ball and paper into gun barrel. Take out ramrod. Push ball down. Return ramrod. Cock. Aim. Fire.

I think Ill need to cancel my dinner plans.

But first, Ill need the lead balls and old-style black gunpowder. (Im told not to use modern gunpowder under any circumstances.) I call a Minnesota-based company that sells vintage ammo. I get 25 balls. But the gunpowder? Well, the problem is, the factory is out of commission right now. Its being rebuilt from their latest mishap.

Note to self: dont get a job at a vintage gunpowder factory.

So for the time being, I have to be satisfied with just carrying my unloaded musket around. Which I do. I realise my experience would have been vastly different if I werent a white man. But I find walking around by turns exhilarating and stressful. Exhilarating because on some animal level I feel safer, more powerful. Which is insane, because it isnt even loaded. And stressful because, well, what if I run into someone with a gun from this century?

I have a team of constitutional advisers, and I ask one of them what he thinks of my musket. He points out that a strict originalist interpretation of the second amendment could favour the musket. But it could go the exact opposite direction: it could encourage citizens to buy the latest military gear from Lockheed Martin.

A lot of the rhetoric from the right about the second amendment is about the potential to resist government, says Shamshiri. If thats true, even semi-automatic guns arent enough. You wont be able to face down an invading air force and tanks with just guns. That interpretation serves as an argument for access to military-grade weaponry, he says. The point is, theres no concrete originalist interpretation. It can be taken in different directions.

I dont have the budget for a Stinger surface-to-air missile.

Ive been hoping to use Project Constitution in my perpetual battle with my kids over screen time. And I think I found my secret weapon: good old amendment 14.

The amendment says that no state shall deprive any person of, among other things, liberty. But what is liberty? Well, a 1923 supreme court ruling defined liberty as, among other things, the orderly pursuit of happiness by free men.

So the constitution enshrines our right to pursue happiness. But it only enshrines ways to achieve happiness that were approved of when the 14th amendment was ratified in 1868.

I knock on my sons door. The bad news is, no electronics for the duration of my constitution project. The good news is, I got you this.

I hold up a cup-and-ball that Id bought online a 19th-century wooden toy where you try to get a ball on a string into a cup.

Also, no Netflix, since such entertainment is not protected by the original intent of the first amendment, I say. In the 18th century, some states banned all theatrical performances because of their morally corrupting influence, Jud Campbell wrote in the Yale Law Journal.

My son ignores me.

Which allows me to explore another part of the constitution the eighth amendments ban on cruel and unusual punishment.

How can I punish my son in a non-cruel, non-unusual way? Well, let me look to history and tradition. Up until the 1820s, the pillory the wooden contraption with holes for the head and hands was a frequent way to shame criminals.

According to extreme originalism, if a punishment was common during the founding era, its not cruel or unusual today. For instance, Scalia said the death penalty is constitutional partly because it was common when the eighth amendment was ratified in 1791.

Now I know the eighth amendment is meant for government not personal use, but Im kind of on a roll. I do a Google search for pillory and find theres quite a lively subculture of people who enjoy pillories. Many of the photos of models in stockades wouldnt pass 18th-century obscenity laws. The cheapest pillory I find is $50 and made of cardboard.

OK, hands and head in, I say when it arrives a few days later.

My son shakes his head.

Just do it for my project, I say.

Fine.

He stays there for 30 seconds, then tears out of it like the Hulk. But he does later spend a few minutes with the cup-and-ball, so thats something.

I spent my month frantically trying to abide by other original principles. The constitution talks about the right to assemble, but does that extend to Zoom meetings? Im not so sure. So I meet colleagues in person.

The constitution says the government cannot do searches and seizures without reason. But they only talked about searches of physical spaces. So are my computer files protected? Maybe the government could seize thousands of documents from my computer without violating the constitution. (Not that I have any secrets about foreign nations nuclear capabilities.) The only solution I can think of is to print out all of the laptops documents, keep the pages and delete the digital files. Which was a massive waste of time and black ink cartridges. I gave up after 200 pages.

The constitution also says that no soldiers shall be quartered in my house without my consent. I put an ad on Craigslist offering a free room to a member of the military if and only if I decide theyre cool after an interview. The only response is from an architecture student from Turkey.

So how do I feel? First, I feel grateful that I dont live in 1789. Despite the recent erosion of our civil liberties, it still feels freer than it was in the powdered-wig era. Im also a fan of modern plumbing.

Second, I know that originalists might say that I lived by an unfairly exaggerated version of originalism. And thats probably true. But at the end of this, Im not totally anti-originalist. Originalism comes in many flavours. Im just opposed to the way some are practising it now.

Originalism came to the fore in the 1980s as a way to stop what the conservatives saw as the liberal supreme courts overreach. They worried the court which approved of affirmative action and the right to abortion was untethered and just willy-nilly making rulings that aligned with their politics. The liberals were legislating from the bench.

So originalism was the proposed solution. Judges should put aside their views and objectively focus on the words of the text. As the conservative Federalist Society puts it: Originalists analyze the text and evidence first, then conclude what result logically follows. As opposed to the living constitutionalist camp that decides on a correct result and then use the text and precedent to support their initial assumption.

Read the rest here:
Party like its 1789! My weird, enlightening month living strictly by the US constitution - The Guardian

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Texas Attorney General Ken Paxton isnt just running for a third term while under indictment for securities fraudhes running from process servers too.

On Monday morning, according to an affidavit filed in federal court, Paxton and his wife, state Sen. Angela Paxton, embarked on a Coen Brothers-esque escape from a man who was attempting to hand the AG a subpoena to appear in federal court. Paxton had been named in a class-action lawsuit filed by reproductive rights groups in the state, who are seeking an injunction to block prosecutors from using a 2021 law to target groups that help Texans obtain abortions in other states.

According to the affidavit, the process server, Ernesto Herrera, parked outside the Paxtons home, knocked on the door, and saw both the attorney general and his wife come to the door. But upon seeing Herrera, the AG backed away and let his wife handle the interaction. Herrera identified himself as a process server trying to deliver important legal documents to Mr. Paxton. She told him that the AG was on the phone and then in a hurry to leave, after which Herrera handed her his business card, and then returned to his car to wait.

Not long after, the affidavit stated, Paxtons driver pulled up in a Chevy Tahoe, and the AG began walking out to the vehicle. Then Herrera called out his name. As soon as he heard me call his name out, he turned around and RAN back inside the house through the same door in the garage. A few minutes after that, Paxtons wife ventured out and started the couples truck, which was also parked in the driveway. Then the attorney general RAN from the door inside the garage towards the rear door behind the driver side. Herrera attempted to serve the documents, again identifying himself, and eventually left them on the ground outside the vehicle.

Paxton responded angrily to the Texas Tribunes write-up of the incident on Tuesday morning, framing the encounter as a precautionary maneuver at a time when elected officials are being subjected to violent threats.

All across the country, conservatives have faced threats to their safetymany threats that received scant coverage or condemnation from the mainstream media, he tweeted. Its clear that the media wants to drum up another controversy involving my work as Attorney General, so theyre attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family. In a subsequent statement, Paxton invoked the Second Amendment and said that the server was lucky the situation didnt necessitate force.

But if it was concern for the safety and well-being of his family that compelled Paxton to flee from a suspicious man with a manila envelope, its not really clear why his wife dealt with him. If anyone is familiar with what its like to be subpoenaed, its the scandal-plagued attorney general of Texas.

Paxtons panicked extraction is a fitting addendum to the lawsuit he has been named in, and the broader legal environment of fear and surveillance that he has helped cultivate.

Texas is a state that, with Paxtons explicit backing, investigates the parents of trans kids for child abuse. Its a state where, again with Paxtons support, ordinary citizens have been deputized to collect bounties on fellow citizens seeking abortions. And its a state where investigators searching for evidence of voter fraud peep through bathroom windows.

Several of the reproductive rights groups who are suing Paxton have already been targeted by powerful anti-abortion groups and elected officials seeking to depose them and collect information on their donors, part of what my colleague Pema Levy characterized as the dystopianrise of vigilante enforcement to reverse progress and entrench physical and psychological control over women, LGBTQ people, and people of color.

The groups targeted by Paxtons legal regime really are operating in a climate of fear and intimidation thats been imposed on them by the state, but you dont see them cavalierly talking about using the Second Amendment against a process server. In this case, its the person most committed to eroding the privacy of others whos complaining loudest about his own.

See more here:
Don't Try Serving Ken Paxton With a Subpoena, Unless You Want to Get Shot Mother Jones - Mother Jones

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By Rod Miller, columnist

You cant swing a dead cat in the State of Wyoming without hitting a Second Amendment zealot or three. They are everywhere, and theyre not shy about proclaiming their 2A allegiance by wearing Molon Labe t-shirts and Shall Not Be Infringed tattoos.

Ive often been mystified as to why so many folks grasp onto the Second Amendment as a source of self-identity. Sure, guns are cool and everything, but why pass over the first article in our Bill of Rights to focus on the one about guns as the crown jewel in our Constitution?

Why arent there just as many First Amendment free press nuts as there are gun nuts?

It might be because the Second Amendment is so approachable and participation is easy. All you need to do is buy a gun, carry it around, spout off about it, andvoila! You are immediately a Second Amendment zealot.

The First Amendment requires a bit more skin in the game, however. Free speech is hard and often dangerous work. Informing the citizenry involves operating in the world of language, of truth, of facts. Gun ownership doesnt demand a lot of intellectual rigor. A free press does.

Wyoming lost a card-carrying, sold out, fire-breathing First Amendment zealot the other day with the untimely passing of Jim Angell.

Jim spent his career in the First Amendment trenches. He was a frontline fighter for an informed citizenry. He was a free press champion of the first order. Jim believed, as did the Apostle John, that the truth shall set you free.

He also held firmly to the belief that the truth wont kill you, but the lies just might.

Jim was of the old-school Who, What, Where, When, Why, How style of journalism, and invested years in sifting true facts from the chaff of bullshit. And he presented what he found using the Kings English as it should be used active verbs, good grammar, proper punctuation and impeccable sentence structure.

He embodied Sen. Ransom Stoddards adage in The Man Who Shot Liberty Valance that, An honest newspaper is the best textbook.

The zeal with which he defended and practiced the First Amendment often put to shame those Meal Team Six types who delude themselves into believing that wearing an AR-15 to Starbucks fulfills the Second Amendment.

I met Jim shortly after we both moved to Cheyenne, and he was the second customer through the door when I opened a bookstore, Joe Pages, downtown. Jim had formed an acoustic band, Jammin Easy, and their first gig was playing in the store. It became evident to everyone after just a short time that another one of Jim Angells passions was writing songs with corny lyrics..

Jim and I bumped into each other over the years and, more or less, stayed in touch as people often do. But I got drawn into Jims orbit when I was invited to write a column for Cowboy State Daily. And its a pretty demanding orbit.

Jim was instrumental in launching Cowboy State Daily a few years ago. After a career in ink-n-paper journalism, Angell helped establish a digital media foothold in Wyoming that is giving print journalism a run for its money.

It was like he picked up a brand new guitar and wanted to see how it would sound in front of a crowd of people. He wanted to see if he could wring the truth out of it, and make people dance.

Im saddened by Jims passing, as are so many of his fellow Wyoming citizens. But, like them, I consider myself enriched for knowing him, and for enjoying the benefit of his influence on journalism in the Cowboy State.

Jim will lead tonights jam session in The Great Beyond Coffeehouse, backed up by Hunter Thompson, H.L. Mencken, Ed Murrow and Ambrose Bierce. Hell sing the song he just wrote, the one with lyrics that make the audience groan.

And tomorrows front page of the Afterlife Times-Courier will have Jim Angells fingerprints all over it. Active verbs. Good grammar. Correct Spelling. Short, sharp sentences. The Truth.

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Continue reading here:
Rod Miller: The Passing of a First Amendment Zealot - Cowboy State Daily

Itestified before Congress Joint Economic Committeelast month in a hearing focused on the economic toll of gun violence.

Of course, theres no doubt that gun violence imposes a tremendous cost on society, both financially and in far less readily calculable ways. How does one measure, for example, the mental and emotional toll of being shot?

As I explained to the committee, however, lawful gun owners are not largely to blame for these costs, despite many insinuations to the contrary by gun control advocates. Most lawful gun owners never will harm themselves or others and never will add a single dollar to the overall bill for gun violence.

Meanwhile, lawful gun ownership provides significant but often underacknowledged protective benefits, enabling peaceable citizens to defend themselves and others far more effectively than if they were unarmed.

Almost every major study on the issue has found that Americans use their firearms in self-defense between500,000 and 3 milliontimes annually, according to the most recent report on the subject by the Centers for Disease Control and Prevention.

For this reason, The Daily Signal each month publishes an article highlighting some of the previous months many news stories on defensive gun use that you may have missedor that might not have made it to the national spotlight in the first place. (Read other accountsherefrom 2019, 2020, 2021, and so far in 2022.)

The examples below represent only a small portion of the news stories on defensive gun use that we found in July. You may explore more by using The Heritage Foundations interactiveDefensive Gun Use Database.(The Daily Signal is Heritages multimedia news organization.)

As these examples underscore, lawful gun owners save lives and protect livelihoods. They routinely interrupt criminal activity and stop bad situations from becoming even worse. Significant evidence indicates that the threat of armed resistance deters many criminals from committing crimes in the first place.

And in this way, lawfully armed civilians help reduce the costs imposed on society by criminal actors.

Lawful gun owners are not a significant part of the problem of gun violence. The evidence shows, however, that they are part of the solution.

This piece originally appeared in The Daily Signal

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These 11 Defensive Gun Uses Show Protective Benefits of Second Amendment - Heritage.org

Judge Diarmuid O'Scannlain, joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson, dissented, arguing that the Ninth Circuit should have resolved the question itself:

I respectfully dissent from our failure to resolve the straightforward legal issues presented by this case. The Supreme Court has vacated the judgment of this Court and remanded this case to us "for further consideration in light of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022)." But today, we decline to give further consideration to the question presented to us and we decline even to deal with it.

This case presents the following question: in light of the Supreme Court's decision in Bruen, does Hawaii's "may-issue" permitting scheme violate the Second Amendment right of a responsible law-abiding citizen to carry a firearm for self-defense outside of the home? Bruen held unconstitutional a "may-issue" permitting scheme for public carry of handguns, much like the law challenged in this case. So, after Bruen, the question before us is simple. Nevertheless, our Court today declines to answer it. In refusing to do so, our Court delays the resolution of this case, wastes judicial resources, and fails to provide guidance to the lower courts of our Circuit. As a judge of this Court, I feel obliged to offer such guidance, even if a majority of my colleagues does not.

George Young wishes to carry a firearm 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." The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. 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."

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 use those firearms only while "actually engaged" in hunting or target shooting.

Ten years ago, on June 12, 2012, Young filed this suit . In 2018, a three-judge panel of our Court reversed the district court's dismissal of Young's Second Amendment claim against the County, holding that he "has indeed stated a claim that section 134-9's limitations on the issuance of open carry licenses violate the Second Amendment." In 2021, sitting en banc, we reached a conclusion different from that of the three-judge panel. Following its decision in Bruen, the Supreme Court granted Young's petition, vacated our en banc decision, and remanded the case to us for further consideration in light of its opinion.

The Supreme Court in Bruen explicitly overruled the lower courts' two-step test which would apply means-end scrutiny to the Second Amendment. Because "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," we are "bound by the later and controlling authority" of the Supreme Court, and therefore we must "reject the prior circuit opinion[s] as having been effectively overruled." As the Supreme Court just instructed us, "the standard for applying the Second Amendment is as follows: When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

In a Second Amendment case, we must "assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." However, although "[h]istorical analysis can be difficult" and, at times, it requires "nuanced judgments about which evidence to consult and how to interpret it," the analysis in this case is simple under the binding precedent set forth in Bruen. In Bruen, the Court considered the constitutionality of "proper-cause" statutes such as that enacted by Hawaii. Accordingly, the Supreme Court parsed the text of the Second Amendment and evaluated at great length "whether 'historical precedent' from before, during, and after the founding evinces a comparable tradition of regulation" to "proper-cause" laws. After thorough review, the Court concluded that neither text nor historical precedent support "proper-cause" language restrictions.

As with the petitioners in Bruen, Young is an "ordinary, law-abiding, adult citizen[ ]," and is therefore unequivocally "part of 'the people' whom the Second Amendment protects." As the Court observed in Bruen, "handguns are weapons 'in common use' today for self-defense." And the plain text of the Second Amendment contemplates not just the "keeping" of arms in the home, but also the "bear[ing] of arms" beyond it. Therefore, as with the petitioners in Bruen, "[t]he Second Amendment's plain text thus presumptively guarantees" to Young "a right to 'bear' arms in public for self-defense."

Because "the Constitution presumptively protects" Young's right to carry arms in public for self-defense, Hawaii "must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Put differently: since the Second Amendment guarantees to the people "a general right to public carry," the constitutionality of section 134-9 hinges on whether there was at the time of the ratification of the Second Amendment or the Fourteenth Amendment "a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense." The government has the burden to show such a tradition.

But Hawaii cannot meet its burden, because, as the Supreme Court held in Bruen, there was no such tradition. Nor was there a "historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." Historical restrictions on public carry may have "limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms." But such valid historical exceptions are quite the opposite of section 134-9, which flips the presumption by limiting public carry licenses to "an exceptional case."

A law-abiding citizen need not demonstrate a special need to exercise his or her right to carry arms in public for self-defense. But like the New York law at issue in Bruen, section 134-9 requires ordinary citizens like Young to demonstrate an exceptional reason to obtain a public carry permit. Thus, section 134-9 violates the Fourteenth Amendment by "prevent[ing] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." Bruen admits of no other conclusion.

The Second Amendment "'elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense." The Supreme Court has thus admonished the lower courts that this right "demands our unqualified deference." But "may-issue" permitting schemes violate this Second Amendment right. Like all such schemes, Hawaii's "may-issue" permitting law, section 134-9, infringes the right of Young, a law-abiding responsible citizen, to carry a handgun in public for the purpose of self-defense. Young has indeed stated a claim that section 134-9 violates the Fourteenth Amendment by depriving him of the right protected by the Second Amendment.

Our Court should say so. We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand.

Instead of remanding without explanation or justification, we should reverse the district court in an opinion holding that Young has stated a claim upon which relief may be granted, that section 134-9 is unconstitutional, and that the case must proceed accordingly in district court. If we issued such an opinion, we would ensure that Bruen is applied uniformly in our Circuit in future cases. And in this case, we would save the parties and the district court the time and expense of continuing to litigate issues that we could resolve easily.

Today we shy away from our obligations to answer the straightforward legal questions presented on appeal and to provide guidance to the lower courts in our Circuit. And in doing so, we waste judicial resources by sending the parties back to square one at the district court. The parties have waited a decade to resolve this litigation, and Young has waited over ten years to exercise his constitutional right to carry a handgun in public for self-defense. Because we opt not to decide this simple case, we force Young to wait even longer.

Someday, Young will finally be vindicated. Someday, our Court must issue an opinion that respects the rights enshrined in the Second Amendment.

More:
Ninth Circuit Sends the Hawaii Concealed Carry Challenge Back Down to District Court - Reason