What Does the Court’s Public Weapons Ban Mean for Montana?


The Ninth Circuit Court of Appeals ruled yesterday that there is no constitutional right to carry firearms in public, relegating the Second Amendment of the United States Constitution to something you’re allowed to do in the privacy of your own home. The ruling, in a 127-page opinion, struck down an earlier ruling by the court that a Hawaiian police chief had violated the Second Amendment for requiring citizens requesting a public weapons permit (for open carry or concealed carry) to show they needed it for their job.


Judge Jay Bybee – appointed by George W. Bush – said in his majority opinion, “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.”

The arguments of the majority judges appealed to various historic caveats in which Second Amendment liberties were infringed, justifying their decision based upon the exception to American legal jurisprudence, rather than the rule. Oddly enough, the seven-judge majority also appealed to laws dating back to 1348 in which the King of England forbade citizens from carrying weapons before the King’s justices.

For those interested, there was a revolution in America in 1776 that settled forever the right of Americans to keep and bear arms. But the Ninth Circuit judges were unimpressed with the Constitution, and appealing to 14th Century English laws was as irrelevant as appealing to Shariah. Nonetheless, their ruling is binding over the 8 states which the court oversees and sets legal precedent in all the other 42 states.

The Ninth Circuit has jurisdiction over Montana, as well as Washington, Oregon, California, Nevada, New Mexico, Alaska, and Hawaii (see map below).

But don’t worry. The Ninth Circuit says the government has the responsibility – not individuals – to protect people in public spaces.

Bybee wrote, “The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces.” They seem to be doing a fine job of it, with a total absence of mass shootings, muggings, kidnapping, and rape occuring in American streets (sarcasm is implied here).

The judge went on, “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.’”

The judges did not say, neither did they provide evidence to assert, that prohibiting “certain weapons” somehow forestalls domestic violence or how “domestic tranquility” is obtained by limiting personal liberties. One would surmise, if states begin to make laws in tandem with the court’s ruling, that our domestic life in America will be substantially less tranquil.

The U.S. Constitution states…

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

A militia, by its very definition, excludes uniformed and publicly-supported standing militaries and explicitly refers to the rights of individual Citizens (as all the amendments of the Constitution do). The leftist argument that private gun ownership is not implied – or explicitly stated – in the Second Amendment is underscored by the reality that the Bill of Rights specifies the rights of “the People” and not the federal government.

The court ruling effectively ends the Second Amendment and its primary purpose – the security of a free state – and relegates gun ownership and carry to private property. Effectively, this would be the same as ruling the First Amendment right to the free exercise of religion must be observed in a church house or the right to free speech much be exercised in a newspaper. But it’s the Ninth Circuit, so give them time to get around to it.


According to Montana Shooting Sports Association president, Gary Marbut, it’s not time to panic just yet.

Taking a measured approach to the ruling, Marbut told MSSA supporters in an email, “Yes, it’s a convoluted decision, and the basic legal rationale by the prevailing judges is basically ‘Because we say so.’  Nevertheless, we are subject to that in all the states under the umbrella of the Ninth Circuit.”

There’s a silverl lining for Montanans, however. Marbut went on…

Still, it has no direct impact on Montana.  It will have more impact on states that impose gun control, when that gun control is challenged on Second Amendment grounds.  Montana doesn’t impose gun control, so no case is likely to arise in Montana where this decision would be relevant.  That’s not to say it can’t happen here, just that it’s unlikely.  Legal cases that might arise in Montana would most likely be decided in state courts, not federal courts, and be decided based on the Montana Constitution.

Of course, this doesn’t mean that Montana won’t be affected by the ruling at all. It’s just unlikely at this juncture that we will see immediate ramifications for our state from the ruling, which may very well be overturned by the U.S. Supreme Court, largely thanks to the conservative appointments by President Donald J. Trump.

The Ninth Circuit Court of Appeals is the most over-turned court in the United States, and by far and away the most liberal. Whether or not the Supreme Court will hear the case is entirely unknown, but gun advocates are optimistic in both the possibility they will hear and that the potential outcome will be positive.

Nonetheless, the Ninth Circuit ruling emphasizes the importance of good gun laws on the statewide level. With this ruling in place, the only thing protecting Montanans’ rights to keep and bear arms is state law, which has been repeatedly solidified bit-by-bit each legislative session thanks to the MSSA and pro-gun voters who have sent the right people to Helena to craft laws.

Alan Beck, the San Diego based attorney representing the Hawaiian who sued over the infringement of his civil liberties, told the press, “The Ninth Circuit’s opinion, which finds the Second Amendment right does not apply outside the home at all, contradicts the decisions of every federal circuit court in the country that has ruled on this issue.”

He added, “We will be seeking Supreme Court review in order to overturn the Ninth Circuit’s erroneous decision.”


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  1. Sadly, the writer of this article claims this rule is binding. What an ignorant fool!
    Marbury v. Madison (1803) ~ “A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President. Nothing in the Constitution gave the Court this specific power.
    According to the map, It’s Arizona, not New Mexico that’s included in the 9th Circuit’s territory. The map also shows Idaho which isn’t mentioned. …somebody needs more coffee and a better editor!


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