9th Circuit strikes down Hawaii’s open carry restrictions

A 9th U.S. Circuit Court of Appeals panel invalidated Hawaii's licensing system for open carry of firearms, ruling in a split decision Tuesday that citizens shouldn't need any more permission to carry a gun in public than they do to possess one on their own property.

Hawaii's firearm licensing regime generally required owners to keep their guns at home or their place of business, rather than carrying them around. Citizens who wished to carry a loaded weapon had to apply for a special license and prove they had an exceptional reason to do so.

In the underlying case, this was the second time George Young attempted unsuccessfully to get a license to carry his gun in public places because he couldn't satisfy the state's statute requiring him to prove that he has "reason to fear injury."

Young sued the state, claiming his Second Amendment rights had been infringed. U.S. District Judge Helen W. Gillmor granted Hawaii's motion to dismiss. A 9th Circuit panel overturned that decision and remanded the case. Young v. State of Hawaii et al,. 2018 DJDAR 7182 (9th Cir. July 24, 2018).

Judge Diarmuid F. O'Scannlain wrote in the opinion that prior Second Amendment cases in the circuit have avoided the question of open carry, while this case addresses it directly. "It is apparent from the face of the text that the Amendment protects the right not only to 'keep' but also to 'bear' arms," he wrote. "The latter verb is central to Young's challenge."

O'Scannlain pointed to a seminal U.S. Supreme Court gun control ruling, District of Columbia v. Heller, 554 U.S. 570 (2008). The judge wrote that Heller specifically identified "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as presumptively lawful.

"Why bother clarifying the definition of sensitive public places if the Second Amendment did not apply, at all, to any public place?" he asked.

O'Scannlain wrote that his line of argument does not extend to concealed carry of firearms, contending that conduct "categorically falls outside such protection" and therefore can be regulated.

The judge added that Hawaii's regime led to a particularly restrictive outcome, where almost nobody could carry firearms in public.

"Counsel for the county acknowledged as much at oral argument, stating that, to his knowledge, no one other than a security guard -- or someone similarly employed -- had ever been issued an open carry license," he wrote.

O'Scannlain also wrote a 2014 opinion in which he invalidated California's concealed carry licensing regime. That ruling was ultimately overturned en banc in 2016. Peruta v. County of San Diego, 824 E3d 919 (9th Cir. 2016).

Judge Sandra S. Ikuta joined O'Scannlain's Tuesday opinion.

Judge Richard R. Clifton wrote in the dissent that he had a different interpretation of Heller.

"While explicitly declining to elaborate on specific regulations, the Supreme Court in Heller expressly noted that the right secured by the Second Amendment is 'not unlimited' and that there were 'longstanding prohibitions' that were 'presumptively lawful.'"

Clifton added that a circuit split already exists over the issue and the Supreme Court will likely weigh in. He contended that the majority cherry-picked historical examples that fit their view.

"A more balanced historical analysis reveals that states have long regulated and limited public carry of firearms and, indeed, have frequently limited public carry to individuals with specific self-defense needs," Clifton wrote.

The judge contended that licensing regimes like Hawaii's are protected in multiple ways. He said longstanding regulatory schemes should be considered presumptively lawful but the panel didn't need to reach that conclusion to find that Hawaii's system was defensible.

"Even if they are not presumptively lawful, the widespread and longstanding nature of such schemes supports the conclusion that a general right to publicly carry firearms is not part of the core of the Second Amendment," Clifton added.

D. Kaena Horowitz, deputy corporation counsel for the County of Hawaii, wrote that the jurisdiction was considering its options, including whether to seek en banc review.

"The Young decision is unfortunate as it invalidates Hawai`i law designed to protect the safety and wellbeing of the people of Hawai`i," he wrote in an email. "Carrying firearms in public clearly poses a significant danger to the safety of our community and greatly increases the risk that police officers confront."

Attorney General Russell Suzuki pledged to keep working with the county on the litigation, in an emailed statement.

"We are disappointed in the decision that would undermine Hawaii's strong gun control law and our commitment to protect the public," he wrote. "But we note that Judge Clifton filed a well-reasoned dissent supporting the constitutionality of this law."