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Young V. Hawaii.Pdf No. 20-1639 In the Supreme Court of the United States GEORGE K. YOUNG, JR. Petitioner, v. STATE OF HAWAII, ET AL., Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF OF THE STATES OF LOUISIANA, ARIZONA, MONTANA, AND EIGHTEEN OTHER STATES AS AMICI CURIAE IN SUPPORT OF CERTIORARI JEFF LANDRY Attorney General ELIZABETH B. MURRILL* Solicitor General *Counsel of Record JOSIAH M. KOLLMEYER Assistant Solicitor General Louisiana Dept. of Justice 1885 N. Third St. Baton Rouge, LA 70804 (225) 326-6766 [email protected] ADDITIONAL COUNSEL LISTED ON NEXT PAGE AND SIGNATURE PAGE AUSTIN KNUDSEN MARK BRNOVICH Attorney General Attorney General DAVID M.S. DEWHIRST BRUNN W. ROYSDEN III Solicitor General MICHAEL S. CATLETT Office of the Montana ANTHONY R. NAPOLITANO Attorney General Assistant Attorneys General 215 N Sanders Arizona Attorney General’s Office Helena, MT 59601 2005 N. Central Ave. (406) 444-4145 Phoenix, AZ 85004 [email protected] (602) 542-5025 [email protected] i TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................... iii INTERESTS OF AMICI CURIAE ..............................1 SUMMARY OF THE ARGUMENT ............................3 ARGUMENT ...............................................................4 I. THE NINTH CIRCUIT MISUNDERSTOOD THE SCOPE OF THE SECOND AMENDMENT RIGHT. .............................................................4 A. The Second Amendment Guarantees the Fundamental Right of Self- Defense. ....................................................4 B. Second Amendment Protections Extend Outside the Home. ......................5 II. THE NINTH CIRCUIT’S EN BANC DECISION DEEPENS A MAJOR CIRCUIT SPLIT AND INCREASES CONFUSION ABOUT HOW TO APPLY HELLER. ...............................................8 III. THE HAWAII STATUTE IS UNCONSTITUTIONAL UNDER STRICT SCRUTINY, INTERMEDIATE SCRUTINY, OR A TEST BASED ON TEXT, HISTORY, AND TRADITION. .................................................... 13 A. Hawaii’s statute fails strict and intermediate scrutiny because it functions as a virtual ban on carrying firearms outside the home. .................... 14 B. The Hawaii statute cannot survive when examined in light of the text, history, and tradition of the Second Amendment. ........................................... 16 ii CONCLUSION .......................................................... 19 iii TABLE OF AUTHORITIES CASES Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) ............................................. 5 Cf. Staub v. City of Baxley, 355 U.S. 313 (1958) ............................................... 10 District of Columbia v. Heller, 554 U.S. 570 (2008) ........................................ passim Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ............................. 1, 15 Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) ................................. 12 Mai v. United States, 974 F.3d 1082 (9th Cir. 2020) ................................. 5 Mance v. Sessions, 896 F.3d 390 (5th Cir. 2018) ................................... 4 McDonald v. City of Chicago, 561 U.S. 742 (2010) ........................................ passim Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) ............. 6, 7, 8, 12 New York State Rifle & Pistol Association v. Corlett (No. 20-843, cert. granted 04/26/2021) ............. 9, 10 iv Nordyke v. King, 319 F.3d 1185, 1196 (9th Cir. 2003) ....................... 6 Nordyke v. King, 563 F.3d 439 (9th Cir. 2009) ................................... 7 Parker v. D.C., 478 F.3d 370 (D.C. Cir. 2007) ................................. 6 Payton v. New York, 445 U.S. 573 (1980) ............................................... 17 Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016) ................................... 9 Silveira v. Lockyer, 328 F.3d 567 (9th Cir. 2003) ................................... 6 Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) ....................... 8, 13, 14 State v. Reid, 1 Ala. 612 (1840) ................................................... 14 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) ......................... 13, 15 Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) ....................... 7, 8, 12 Young v. Hawaii, 992 F.3d 765 (9th Cir. 2020) ............................... 4, 7 v STATUTES D.C. Code § 22-4506(a)-(b) ......................................... 8 Hawaii Rev. Stat. § 134-9 .......................13, 15, 16, 18 CONSTITUTIONAL PROVISIONS U.S. Const. amend. II ........................................ passim U.S. Const. amend. XIV ................................... 4, 5, 18 OTHER AUTHORITIES AKHIL AMAR, THE BILL OF RIGHTS 47 (1998) ............. 7 CRIME PREVENTION RESEARCH CENTER, Concealed Carry Permit Holders Across the United States (July 16, 2015), available at https://crimeresearch.org/wp- content/uploads/2015/07/2015-Report-from-the- Crime-Prevention-Research-Center-Final.pdf; .... 15 EUGENE VOLOKH, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1463 (2009).......................................... 17 JOHN R. LOTT, Concealed Carry Permit Holders Across the United States (July 18, 2017), available at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3004915. ............................................ 15 William Baude, Initial thoughts on the constitutional right to concealed carry in NY Rifle and Pistol Association v. Corlett, and a possible trip to Hawaii, 29 April 2021, vi https://www.summarycommajudgment.com/blog/in itial-thoughts-concealed-carry .............................. 10 1 INTERESTS OF AMICI CURIAE1 Amici are the States of Louisiana, Arizona, Montana, Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming. One of the highest responsibilities of a State is to safeguard the rights of its citizens, including the right “to keep and bear arms” under the Second Amendment. Law-abiding citizens keep firearms for self-protection—both inside and outside of their homes. Amici seek to ensure that their residents will not be deprived of their Second Amendment freedoms. While possessing a gun in one’s home is a necessary first step, “[t]he right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.” Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011). Citizens of amici states have an interest—indeed, a constitutional right—not merely in owning guns, but in being able to carry them outside the home, for both training and defensive purposes. Amici also have an interest in the clarity of Second Amendment law. Even after the Supreme Court’s landmark decisions in District of Columbia v. 1 The parties received timely notice and have consented to the filing of this amicus brief. No counsel for a party authored this brief in whole or in part. No person other than amici has made any monetary contributions intended to fund the preparation or submission of this brief. 2 Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), lower courts have applied inconsistent standards in Second Amendment challenges to state firearm restrictions. Inconsistent decisions by the lower federal courts have left States uncertain as to the precise boundary between permissible and impermissible restrictions. These inconsistencies have also prevented citizens of amici States from exercising their right to carry and bear arms across State lines. The Ninth Circuit’s en banc decision has only made this uncertainty worse by failing to engage with the argument that Hawaii’s licensing scheme effectively amounts to a ban on carrying weapons—not merely a regulation. Amici desire to curtail illegal and harmful gun activity without running afoul of the Second Amendment or burdening lawful gun owners. Clear precedent from this Court is necessary to achieve that goal. 3 SUMMARY OF THE ARGUMENT The plain text of the Second Amendment protects the right to bear arms, not just to keep them. Yet Hawaii’s firearm carrying regulatory regime functions as an outright ban on the right to carry guns outside the home for most people. It therefore violates the Second Amendment. The Ninth Circuit, however, upheld Hawaii’s law against George Young’s Second Amendment challenge to it. In doing so, the court’s en banc opinion revealed acute misunderstandings about the right to bear arms. First, the Second Amendment protects the People’s right of self-defense. Second, this right extends outside of the home. Because both premises flow naturally from the text of the Second Amendment, this Court should grant certiorari to review the Ninth Circuit’s erroneous ruling and ensure the sanctity of the Second Amendment. But the Ninth Circuit’s opinion wasn’t just wrong—it deepened a growing circuit split on an important constitutional issue. The First, Seventh, and D.C. circuits have all held that the Second Amendment extends outside the home. The Second, Third, and Fourth circuits, meanwhile, have reached conclusions inconsistent with that principle even if they have not—as the Ninth Circuit did—expressly rejected it. This Court should grant certiorari to resolve this major circuit split. Finally, on the merits, it is abundantly clear that Hawaii’s ban on carrying firearms
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