I don’t know what’s more disorienting, the idea of Republicans’ least favorite circuit coming up big on gun rights or the idea of hip holsters possibly soon becoming haute couture in Beverly Hills.
What makes this decision even more noteworthy is the fact that the Ninth Circuit ruled not long ago that the Second Amendment does not protect concealed carry. As things stand momentarily on the left coast (emphasis: momentarily), you can’t lawfully have a gun on your belt underneath your jacket if the state forbids it — but take the jacket off and you’re cool.
Here’s the opinion, which does a deeeeeep originalist dive on 19th-century views of open carry that history buffs will enjoy. The heart of the matter, from the majority:
Plain and simple: If, as the Supremes held in Heller, the heart of the Second Amendment is the right of self-defense, then obviously the right extends beyond one’s own front door. You’re as vulnerable on the street as you are at home, if not more so.
…But wait. That logic also applies to concealed carry, which the Ninth Circuit has already decided doesn’t fall within the scope of the Second Amendment. How does today’s majority reconcile that decision? It doesn’t, really. Essentially the court holds that *some* form of carry is required by the right to bear arms. If the state wants to say no to concealed, it must say yes to open:
You can understand why a state might forbid concealed carry while tolerating open. Open carry alerts those around you to the fact that you have a weapon, which may have a deterrent effect both ways. If you have bad intentions, it’s harder for you to ambush anyone. And if someone around you has bad intentions, he may think twice when he sees your gun. But you can also understand why a state might forbid open carry while tolerating concealed. Open carry is destined to intimidate some passersby. Arguably that’ll lead to more social discord than hiding one’s weapon from plain sight would. According to today’s decision, though, the latter option is foreclosed to the states. You can allow open carry or you can allow both, but you can’t have concealed carry alone as your regime.
The reason I emphasized up top that this is only momentarily the law is because of who wrote the opinion. It’s Diarmuid O’Scannlain, an eminent conservative judge and Reagan appointee — who coincidentally also wrote the first Ninth Circuit decision on concealed carry in 2014. O’Scannlain held for a 2-1 majority that the Second Amendment does guarantee the right of concealed carry. But he was overturned two years later by the full court, sitting en banc. That is to say, O’Scannlain’s views on gun rights are already known to lean farther towards individual liberty than most of the rest of the Ninth Circuit is comfortable with. It’s not a sure thing that they’ll overturn him on this one: The en banc court in the concealed carry ruling specifically refused to weigh in on open carry, suggesting that they may see a germane constitutional distinction between the two. If you had to wager, though, you’d bet that the Ninth Circuit will, in the end, be the Ninth Circuit and flip O’Scannlain’s ruling on open carry as well. If you’re holding out hope for a favorable outcome, you’re better off pinning those hopes on Neil Gorsuch and Brett Kavanaugh(?) than on the left coast’s court.