Severely Conservative Judge Giveth Olde-Timye Historye Lesson, Ruleth Hawai'i May Kicketh NRA In Ballocks
Yesterday's Ninth Circuit decision upholding Hawai'i's right to regulate guns in public places is not for you. Because if you're reading this, you probably support rational gun laws already.
Which is not to say that Young v. State of Hawai'i doesn't matter. Indeed, if the Supreme Court upholds it, it will likely be the most important gun decision in a decade. But we really need to understand this as conservatives talking to each other about how to come to grips with the crazies in their own ranks. Because we cannot continue to live with a mass shooting every single day because five judges think the Second Amendment is a suicide pact. And on some level, conservatives know that.
Which is why Judge Jay Bybee, author of the infamous 2002 "torture memo" in which he opined that "enhanced interrogation techniques" inflicting pain equivalent to that suffered during organ failure were very legal and very cool, just authored an opinion saying that the government has the right to ban public carrying of firearms in their entirety.
And it's why the opinion begins with 70 pages of history of gun laws, going back more than 700 years.
Sir John Knight was accused of "going armed, to the terror of the public" and charged under the Statute of Northampton and the common law crime of "affray." Sir John Knight's Case (1686), 87 Eng. Rep. 75–76 (K.B.). According to one report, the crown alleged that Knight went armed in public, and more specifically, that he "went into the church of St. Michael . . . in the time of divine service, with a gun, to terrify the King's subjects." Id. at 76. A second report states that he went into a church "with pistols," Rex v. Sir John Knight (1686), 90 Eng. Rep. 330, 330 (K.B.), while an unofficial report states that he was "goeing with a blunderbus in the streets, to the terrifyeing his majesties subjects," 1 Narcissus Luttrell, A Brief Historical Relation of State Affairs, September 1678 to April 1714, at 380 (Oxford Univ. Press 1857).
A blunderbus! How terrifyeing!
Do you care about Ye Olde English gun laws from 700 years ago? No, you do not, because you're a normal person who believes that governments are supposed to enact laws for the benefit of people actually alive today. You've probably never gotten aroused reading The Federalist Papers either, because you're not a rightwing Supreme Court justice who's been grinding up on the Founding Fathers since you hit puberty. Again, this opinion is not for you. It's for Justices Kavanaugh and Gorsuch, who have an unrelenting hard-on for the supposedly timeless wisdom of a handful of men who were very much products of their own time.
I, too, wish that we didn't have to rely on appeals to Alexander Hamilton's better nature to convince these Justices that thousands of gun deaths every year were not simply a part of the Founders' plan.
But 2016. But her emails. But this is the reality of America today.
And if an exhaustive history of English and colonial law is what it takes to convince five justices to agree that the state has the right to regulate concealed and open carry of guns in the public square, then I'm all for it. Edward II issued an order in 1308 "prohibiting any 'knight, esquire, or other' from going 'armed at Croydon or elsewhere before the king's coronation'"? Tell me more, baby! In 1686 the New Jersey colony "passed 'An Act against wearing Swords, &c.' in response to the 'great complaint by the inhabitants of [the] Province, that several persons [were] wearing swords, daggers, pistols, dirks, stilladoes, skeines, or any other unusual or unlawful weapons'"? Fascinating!
We are all originalists now, and we'd better get used to it.
Similarly, we'd best wrap our minds around the need to make a federalist argument to satisfy that particular conservative erogenous zone. Here, too, Judge Bybee is all in, noting that American is not like other countries (it's better!) because "American federalism contemplated distinct roles for the federal government and the states, and it was the states that had responsibility for maintaining the public peace."
The Constitution does not impose the Statute of Northampton on the states. But the Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces. 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."
Are our sainted sheriffs' departments and local lawmen to be usurped by armed hooligans deputized by the federal judiciary? Judge Bybee thinks the fuck not! And he hopes Justices Kavanaugh, Roberts, and Gorsuch can be persuaded to go along for the ride.
"The distinction between hearth and home and the public square is reinforced in the U.S. Constitution in another way: it is peculiarly the duty of the states to defend the public square," he writes.
You can read that as Bybee trying to draw a line between traditional Republicans, who argue that the Second Amendment confers a private right for individuals to keep firearms to defend their own homes, and wackos like Rep. Lauren Boebert who fantasize about whipping out her Glock and shooting criminals on the streets of DC. His point is that states have the authority and the obligation to police the public square, and citizens have no Second Amendment right to turn a Walmart into the OK Corral.
The facts of this particular case are a little bit muddy. Hawai'i denied an open carry permit to an applicant who refused to even dummy up some nonsense about having a need to carry cash or something which would require him to wander around armed. Because he asserted little more than a general need to defend himself, the permit was denied. And then he sued pro se, which resulted in the issue being clumsily framed so that the entire law was challenged, not just his particular denial of the permit or the subjective procedure employed by his local government. He might have had a better claim if he argued that the requirement that the applicant be of "good moral character" violated his due process rights. But he didn't, and that left room for Judge Bybee and the majority of the Ninth Circuit to reach this frankly radical holding.
After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai'i's restrictions on the open carrying of firearms reflect longstanding prohibitions, and therefore, the conduct they regulate is outside the historical scope of the Second Amendment. Accordingly, Hawai'i's firearms-carry scheme is lawful. We affirm the judgment of the district court.
You don't have to squint to see that as a blessing for almost any regulation of firearms in public. And if the protracted history lesson and incantation of conservative magic words is what it takes to get there with Justices Gorsuch and Kavanaugh, then GOD BLESS.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.