Federal Court Says Hawaii Must Allow Open Carry of Guns

9th Circuit says open-carry ban 'violated the core of the Second Amendment and was void under any level of scrutiny'

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July 24, 2018

A panel of judges from the Ninth Circuit court of appeals ruled on Tuesday that Hawaii's effective ban on the open carry of guns is unconstitutional.

In a 2-1 ruling, the court found that the Second Amendment protects the right to openly carry a firearm in public for the purpose of self-defense. Judge Diarmuid F. O'Scannlain was joined by Judge Sandra S. Ikuta in the majority while Judge Richard R. Clifton dissented. The majority reversed the lower court ruling that upheld Hawaii's effective ban on all forms of gun carry in the state.

"For better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense," Judge O'Scannlain wrote for the majority. "We would thus flout the Constitution if we were to hold that, 'in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.' While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, 'the enshrinement of constitutional rights necessarily takes certain policy choices off the table.'"

Hawaii has long had some of the most restrictive gun-carry laws in the country. It currently employs a "may issue" gun-carry law, in which state officials may deny permits to applicants even if they've passed a background check and training requirements.

According to documents obtained by the Washington Free Beacon, Hawaii did not issue a single gun-carry permit to any civilians in 2017. The same was true in 2016. They are the only state in the country to not issue a single gun-carry permit in either year.

George Young, a native Hawaiian and Vietnam veteran, was denied a gun-carry permit in 2011 and filed a lawsuit against the state. Young had to act as his own lawyer because he couldn't find a lawyer in the state willing to work on his behalf. After his first two attempts at legal action failed, Alan Beck, a California-based lawyer with ties to Hawaii, offered to help him with his suit on a pro bono basis.

"Today the Ninth Circuit secured the Second Amendment right to carry firearms outside the home," Beck told the Washington Free Beacon. "We are very pleased by the Ninth Circuit's opinion and are committed to litigating this case further."

Beck credited the retired infantryman's determination for Tuesday's outcome and described Young as being "overjoyed" and "ecstatic" at the ruling.

The ruling did not find that all forms of gun carry are protected, though. The court said concealed carry "categorically falls outside Second Amendment protection" but that "the Second Amendment encompasses a right to carry a firearm openly in public for self-defense." It said, in the end, the language of the Second Amendment asserts at least some right to carry firearms outside the home.

"Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation," said Judge O’Scannlain. "A right to 'keep" arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to 'keep' arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. Understanding 'bear' to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between 'keep' and 'bear' to avoid rendering the latter guarantee as mere surplusage."

The court said the Supreme Court's interpretation of the Second Amendment pointed to a right to carry firearms outside the home.

"In short, the text of the Amendment, as interpreted by Heller and McDonald, points toward the conclusion that 'bear' implies a right to carry firearms publicly for self-defense," the court said. It went on to say Hawaii's gun carry ban "violated the core of the Second Amendment and was void under any level of scrutiny."

The gun rights community was pleased with the ruling.

"The Second Amendment Foundation has always said that you have to allow some form of carry for self-defense," Alan Gottlieb, the gun-rights group's founder, told the Free Beacon. "If you ban concealed carry you must allow open carry or vice versa. You can't ban both and have no carry under the Second Amendment."

Hawaii said it was considering its options.

"We are disappointed in the decision that would undermine Hawaii’s strong gun control law and our commitment to protect the public," Hawaii attorney general Russell Suzuki said in a statement. "But we note that Judge Clifton filed a well-reasoned dissent supporting the constitutionality of this law. We intend to consult with Hawai‘i County and work with them on further action."

The Ninth Circuit panel ordered the case be sent back down to a lower court. Hawaii has the option to request the full Ninth Circuit review of the case but the state has not yet indicated what it plans to do.

UPDATE 8:23 P.M.: This post has been updated with comment from Hawaii's attorney general.