The Ninth Circuit On The Right To Bear Arms
BY Herschel Smith
3 years, 8 months ago
Americans have no right to carry guns in public, a divided en banc Ninth Circuit panel ruled Wednesday, reversing a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional.
“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, wrote for the majority of an 11-judge panel in a 127-page opinion.
Looking back on 700 years of legal history dating back to 14th century England, seven judges in the majority found “overwhelming evidence” that the law has never given people “an unfettered right to carry weapons in public spaces.”
The seven-judge majority traced legal texts and laws back to 1348 when the English parliament enacted the statute of Northampton, which banned carrying weapons in fairs or markets or before the King’s justices. It also cited multiple laws from colonial and pre-Civil War America in which states and colonies restricted the possession of weapons in public places.
“The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces,” Bybee wrote. “The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”
Writing for the dissent, Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, said the majority failed to properly interpret the U.S. Supreme Court’s 2008 decision in District of Columba v. Heller, which overturned Washington D.C.’s total ban on handguns and a requirement that rifles and shotguns be kept unloaded and disassembled or bound by a trigger-lock device.
“The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right,” O’Scannlain wrote.
What they failed to get is God’s laws. And so just like that, they declared God’s Holy Scriptures outmoded and irrelevant.
I’ll briefly make another observation. I consider citations of British laws irrelevant and even ridiculous. Judges who do that forget that we fought a war over the concept of rights, and forged a new covenant with the body politic based on winning that war.
I couldn’t possibly care any less about old British standards, morays or rules.
On March 24, 2021 at 11:01 pm, George 1 said:
How can you “bare arms” and not carry them?
On March 24, 2021 at 11:08 pm, MTHead said:
Nor could I at this point care what black robed tyrants say about my rights. As you pointed out long ago Herschel. They done broke that deal.
And as George Washington told justice Marshall about one of his decisions. “Then let the justice go enforce it!”
On March 25, 2021 at 12:58 am, TheAlaskan said:
Alaska is one of the States in the Ninth Circuit. We Alaskan’s are laughing really hard.
On March 25, 2021 at 1:46 am, Archer said:
[Insert IANAL warning.]
“The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces,” Bybee wrote.
And with that, the Ninth Circuit defied SCOTUS and declared the long-standing “no duty to protect” precedent dead.
Note the verbiage:
The government’s duty is no longer limited to defending the public at large; that duty is now to defend “persons who enter our public spaces”. “Persons”, according to precedent, means individuals.
And the government’s duty is no longer limited to arriving when they can and conducting an investigation after-the-fact; defending persons is now the government’s “primary responsibility”.
Ergo, the Ninth Circuit has declared the governments now have a duty to protect, and that duty applies to individuals, not society in general.
God forbid this happen, but in the future if you know anyone living in a Ninth Circuit state who is harmed or killed by criminal violence while in a public space, encourage them or their survivors to press a 7-, 8-, or 9-figure lawsuit against the state and local governments, politicians, and police departments for utterly failing in their “primary responsibility for defending persons who enter our public spaces”, which the Ninth Circuit just laid directly at their feet.
On March 25, 2021 at 8:32 am, Ned said:
Ever since the election debacle, TPTB are laughing their collective asses off at us. They are doubling down on every possible assault on the Bill of Rights.
On March 25, 2021 at 8:44 am, Bill Buppert said:
Exhibit A-Z is the 1934 NFA, 1938 FFA, 1939 US v. Miller, 1967 Mulford Act (CA), 1968 OCC & SSA and GCA, 1986 FOPA, Undetectable Firearms Act of 1988, Gun-Free School Zones Act (1990), Brady Act (1993), AWB (1994), on and on and on.
Every one of these infringements is legally stamped and approved by Federal government tentacled agencies and robed government employees.
Every one of these infringements is an abridgement of your de jour and de facto right to defend you and yours.
Every one of these would have been a sufficient causus belli for the festivities at Lexington Green on 19 April 1775 and every one of these is a violation of the intent and spirit of the Declaration of Independence for which the Constitution was the tombstone.
All of them.
This ruling is just another reinforcement of everything above.
On March 25, 2021 at 9:16 am, Bob in NC said:
Herschel -somewhat unrelated, but in the past you have asked for readers to post websites that have ammo in stock..https://botach.com/ammunition/
A good variety of name brand ammo and prices are reasonable for the times we live in.. though I still can’t find teh.30-.30 Win that I have been looking for.
On March 25, 2021 at 9:20 am, Michael (from Utah) said:
Jay Bybee….Jay Bybee. Oh, right. He’s one of the guys behind the Bush-era torture memos. He’s one lawyer who should have been disbarred and thrown in prison.
And now, he’s dispensing this kind of garbage? I can hardly say I’m surprised.
On March 25, 2021 at 10:33 am, ontoiran said:
didn’t the “courts” also say that the police have no obligation to protect anyone? how do they square that? what about when the government orders the police to stand down? of course we know that can NEVER happen HERE
On March 25, 2021 at 11:45 am, Free Montana said:
The very reason for the 2nd amendment was times like these.
On March 25, 2021 at 2:18 pm, Josey Wales said:
British standards? Didn’t Hussein the Immaculate toss the Churchill bust out then Trump replaced it and now comrade komissar Obiden (CCP) has tossed it again?
Bush appointment? Please clap for taco bowls and the Shrub clan who has been out to destroy the republic for almost 100 years.
On March 25, 2021 at 4:54 pm, Georgiaboy61 said:
@ Josey Wales
Re: “Bush appointment? Please clap for taco bowls and the Shrub clan who has been out to destroy the republic for almost 100 years.”
The Bushes are bought-and-paid-for globalists and to add to that, the Sunni Arabs own them thanks to their shared connections in the oil business and the petrodollar regime. Statist traitors to the republic come in both flavors, D or R, and they prove it.
It figures that Barack Obama – a.k.a. “Imam Obama” as I like to term him – would get rid of a bust of Sir Winston pronto. Why? Because Churchill was one who tried hard – very hard – to warm western civilization of the dangers of allowing the Mohammedans into our midst. Those warnings were delivered in the book, “The River War: An Account of the Reconquest of the Sudan” published in 1899. There is one particularly-famous quote from that work, reproduced at length below:
“How dreadful are the curses which Mohammedanism lays on its votaries! Besides the fanatical frenzy, which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy. The effects are apparent in many countries. Improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live. A degraded sensualism deprives this life of its grace and refinement; the next of its dignity and sanctity.”
“The fact that in Mohammedan law every woman must belong to some man as his absolute property—either as a child, a wife, or a concubine—must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men. Individual Moslems may show splendid qualities. Thousands become the brave and loyal soldiers of the Queen: all know how to die. But the influence of the religion paralyzes the social development of those who follow it. No stronger retrograde force exists in the world. Far from being moribund, Mohammedanism is a militant and proselytizing faith. It has already spread throughout Central Africa, raising fearless warriors at every step; and were it not that Christianity is sheltered in the strong arms of science—the science against which it had vainly struggled—the civilization of modern Europe might fall, as fell the civilization of ancient Rome.”
Of course, Barack Hussein Obama, being a practicing Sunni Muslim and hater of the West and Christianity – could not tolerate the bust of such a man in his office!
Churchill’s warnings remain as prescient today as they were over a century ago. What would the great man have said about the degree to which Great Britain and the United States of American, have fallen under the power of their once-mortal enemies in the Islamic world?
On March 25, 2021 at 6:47 pm, TheAlaskan said:
During the Parnell administration on July 9, 2010, Sean Parnell signed into law the Alaska Firearms Freedom Act, HB 186 declaring that certain firearms and accessories are exempt from federal regulation and made it unlawful for any state assets to go toward the enforcement of federal gun laws, an act of de facto nullification.
The ‘certain firearms and accessories’ refers to ARs and large capacity magazines.
Bring it.
On March 25, 2021 at 8:12 pm, Sisu said:
Herschel,
A refinement to your comment – penultimate para.: “… and forged a new covenant with the body politic based on winning that war.” I suggest “the body politic” (i.e., the People) “forged a new form of government.”
Which leads to my observation that the en banc panel needed to research history predating the Declaration of Independence in order to bury the implied premise that “rights” flow from “government” and nowhere else.
It appears a cute play on “originalist” arguments that trace the arbitrary history of gun rights in England that led the Founders to enshrine the “G-d- given” right to self defense (and no standing army) in the Constitution in the form of an absolute exclusion on the powers delegated to the government from the People regarding arms.
On March 26, 2021 at 7:58 am, F. T. said:
OK, now I am totally confused and bewidered. What EXACTLY does this mean for those living in the states under that Courts jurisdiction? Can they or can’t they carry concealed legally if they have a permit or what does it mean?
Whats it mean for the reat of the states and its citizens. I don’t see to many people who have NOT committed a crme or been identified as someone who cannot legallt have a firearm giving up guns that can cost them a lot of money and I know the Government won’b be buying back all the guns out there legally owned. I think its time the US Supreme Court took o the issue of the 2nd Amendment for once and for all and defined it very specifically. Of course if we gun owners come out on the losing end, I guess it will get really messy.