Hawaii's open-carry ban is lawful, federal appeals court rules

Kenneth Garger
New York Post
Thu, 25 Mar 2021 00:46 UTC

© Kyodo News via Getty Images

The 9th US Circuit Court of Appeals ruled in favor of Hawaii's limits on carrying guns in public.

A panel of federal appeals court judges on Wednesday ruled in favor of Hawaii's strict limits on openly carrying firearms.

The ruling by the 11-judge panel on the 9th US Circuit Court of Appeals is a legal blow to Hawaii resident George Young, who is suing the state over his inability to get a license to carry a loaded gun in public for self-defense, the Associated Press reported.

Young had argued that his Second Amendment rights are being violated by the state's rejection to his license applications.

But the panel, "held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense," the news service reported.

"Accordingly, Hawaii's firearms-carry scheme is lawful."

Young, the panel ruled, did not show "the urgency or the need" to carry a gun in public.

"Instead, Young relied upon his general desire to carry a firearm for self-defense," the ruling noted.

Lead dissenter Judge Diarmuid F. O'Scannlain blasted the decision "as unprecedented as it is extreme."

"The Second Amendment to the United States Constitution guarantees 'the right of the people to keep and bear Arms,'" the jurist wrote. "Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one's home, it provides no right whatsoever to bear — i.e., to carry — that same firearm for self defense in any other place."

His lawyer, Alan Beck, said he will ask the Supreme Court to take up the case, the report said.

A lawyer for the state, Neal Katyal, had argued that Hawaii does not outright ban people from carrying loaded guns in public, saying those with a good cause can obtain them.

In 2020, all private citizens in the state who applied for carry licenses were denied, according to a report by the Hawaii attorney general's office.

Meanwhile, the state granted carry licenses to 123 private security firms employees who applied for them last year, the report said.

Wednesday's ruling does not change open-carry laws in other states under the 9th Circuit, which covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington.

Hawaii Attorney General Clare Connors said the Second Amendment allows states "to enact common sense regulations like those we have in Hawaii."

The ruling properly upholds the constitutionality of Hawaii's "longstanding law allowing persons to carry firearms openly in public when licensed to do so," she added.

Comment: More from Law & Crime:

A federal court denied a challenge to Hawaii's prohibition on the open carry of firearms in a lengthy and scholarly opinion released Wednesday — finding that Hawaiian law and practice both predate and supersede a broad application of the Second Amendment.

"Hawai'i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago — nearly fifty years before it became a U.S. territory and more than a century before it became a state," the opinion explains in language foreshadowing the method of inquiry and eventual ruling in favor of anti-gun regulation.

Sitting en banc, the U.S. Court of Appeals for the Ninth Circuit ruled 7-4 against George Young, who was twice denied an open carry permit in 2011. The massive, 215-page opinion was authored by George W. Bush-appointed Circuit Judge Jay Bybee. Two dissents were authored by a collection of judges appointed by former presidents Ronald Reagan, Bush, and Donald Trump.

The court spends nearly 50 pages discussing the time-honored regulation of weapons under the law. This section starts in Middle Age England and ends in the Post-Reconstruction United States.

The thorough (and admittedly non-exhaustive) historical inquiry, necessarily long and time-consuming, begins by invoking "a series of orders to local sheriffs that prohibited 'going armed' without the king's permission" which were promulgated by "King Edward I and his successor, King Edward II." The final laws cited in this section are two explicit prohibitions on the public carrying of firearms which were upheld by the Arkansas Supreme Court in 1876 and 1882.

The dissent by Reagan-appointed Senior Circuit Judge Diarmuid O'Scannlain bemoaned the court's grand historical survey — finding the reliance on those regulations "extreme and bizarre." He went on to argue that the court's use of those prohibitions "represents a gross misapplication of the textual and historical inquiries" demanded by the landmark Supreme Court case of D.C. v. Heller, which established the constitutional right of an individual to own a gun for self defense — sans militia membership — way back in 2008.