FAUX HISTOIRE OF THE RIGHT TO BEAR ARMS: YOUNG v. HAWAII (9th Cir. 20
Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), purports to find that the right to bear arms is outside the historical scope of the Second Amendment, which protects that very right to bear arms. The actual text of the Second Amendment is AWOL in the Ninth Circuit’s holding that Hawaii may ban the carrying of firearms, whether openly or concealed. The court’s lengthy account of the history of prohibition on bearing arms is a faux histoire.
Young begins by tracing Hawaii’s ban on carrying a pistol to 1852, when Hawaii was a monarchy. Hawaii’s Constitution recognized no right to bear arms, and instead the law declared that only persons in government were “authorized to bear arms.” When the monarchy was overthrown and a republic created, a law was enacted allowing anyone to carry a pistol by paying a license fee. The court simply ignores that period and highlights restrictions imposed after annexation by the United States. And it disregards how the “good cause” exemption, which allowed carrying without a license, was enforced.
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The Ninth Circuit in Young paints a faux histoire of the right to bear arms. It relies on medieval decrees that would have been anathema to the Founders, deletes key passage from historical sources, leaps over crucial stages of American history such as the coming of the Revolution and of Reconstruction, and otherwise distorts the past to demonstrate that the right to bear arms is actually beyond the historical scope of the right to bear arms.
