The 9th U.S. Circuit Court of Appeals says the Hawaii legal requirement for getting a license to carry a firearm in public violates the U.S. Constitution’s Second Amendment right to bear arms for self-defense.
A three-judge panel of the court handed down a 2-1 opinion Tuesday in the case of a Hilo man’s lawsuit against the state and the Hawaii Police Department. Hawaii-based Judge Richard Clifton was the minority and wrote a dissenting opinion.
George K. Young Jr. sued in 2012 after then-Hawaii Police Chief Harry Kubojiri twice rejected his application for a license to carry a firearm.
State firearm laws prohibit carrying a firearm in public except to transport it to and from places where it can be purchased and used legally, like a licensed firearm business or gun show, a target or hunting range and the police department for registration. Even then the firearm must be unloaded and in an enclosed container.
The chief of police of each county is tasked with handling firearm registrations and issuing firearm licenses. The law allows for the chief, in an exceptional case, to grant a license to carry a loaded revolver or pistol to an applicant who shows reason to fear injury to himself or his property.
Tuesday’s majority says the exceptional case requirement impinges on
the right of a responsible, law-abiding citizen to carry a firearm openly for self-defense outside of his home.
Writing for the majority, Judge Diarmuid F. O’Scannlain said, “We do not take lightly the problem of gun violence, which the state of Hawaii has understandably sought to fight.
“But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” O’Scannlain wrote.
Judge Sandra S. Ikuta was the third judge on the panel.
The majority also said they see nothing in their opinion that would prevent the state from regulating the right to bear arms, and that the Second Amendment leaves the state a variety of tools for combating gun violence, including measures to regulate handguns.
State Senate Judiciary Committee Chairman Brian Taniguchi said, “We gotta take a look at it and see what we can do.”
Young’s lawyer Alan Beck said, “At the end of the day, (state lawmakers) are going to have to change the law.”
He said laws in other jurisdictions include a training requirement for getting a license to carry a firearm in public.
Clifton wrote in his dissenting opinion that the judges in the 9th Circuit and in courts across the country have different positions over a citizen’s constitutional right to bear arms.
“I assume the Supreme Court will find it appropriate at some point to revisit the reach of the Second Amendment and to speak more precisely to the limits on the authority of state and local governments to impose restrictions on carrying guns in public.”
A panel consisting of all of the judges of the 9th Circuit ruled in 2016 that the Second Amendment does not allow people to carry concealed firearms in public. Tuesday’s opinion pertains to the right to carry firearms openly for self-defense.
Hawaii firearm laws make no distinction between concealed or open carry.
State Attorney General Russell Suzuki said in a written statement, “We are disappointed in the decision that would undermine Hawaii’s strong gun control law and our commitment to protect the public.”
He also said the state intends to consult with Hawaii County on further action. The statement does not say what further action is possible.
Tuesday’s opinion sends Young’s case back to Senior U.S. District Judge Helen Gillmor.
Beck said Young cannot get a license to carry until Gillmor orders the Hawaii police chief to issue him one. Gillmor also will have to decide damages. Young had sued for compensatory and punitive damages of at least $1 million each.
