Case Summary
Hawaii’s open carry permitting scheme is so restrictive that it constitutes a de facto ban. While the law does not technically prohibit all open carriage of firearms in public, almost no law-abiding American in the state of Hawaii can exercise the right, since state-issued open carry permits are so difficult to obtain. Only four of them were issued from 2000 to 2020.
Both in private and in public, the People have a natural, constitutionally protected right to keep and bear arms. This right is infringed by states that claim to allow public carry—either openly or concealed—while making it virtually impossible in practice; and by courts that restrict the right “to bear” to one’s own home and nowhere else.
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Case History
Under Hawaii law, residents who want to carry firearms in public openly must prove “the urgency or the need” to do so, and must be “engaged in the protection of life and property,” as well as meeting a government standard of “good moral character.” Under these circumstances, the local chief of police “may grant” the requested permit. The result is a licensing scheme that effectively bans open carry for most Hawaiians.
In 2011, George Young made two applications for this license, intending to carry for the purpose of self-defense. After his applications were denied, Young sued Hawaii in June 2012, claiming the licensing law violated the Second Amendment. When the district court ruled in favor of Hawaii, Young appealed to the Ninth Circuit.
In a surprising July 2018 decision, a panel of the Ninth Circuit initially found that the right to carry a firearm for self-defense outside of the home was protected by the Second Amendment, and that Hawaii’s law was unconstitutional.
Hawaii then moved for rehearing en banc, seeking to have the en banc Ninth Circuit overturn the panel’s uncharacteristic decision.
On March 24, 2021, the Ninth Circuit did exactly that. The court engaged in serious distortions of history—comparing open carriers to terrorizing criminals, and suggesting that the mere presence of arms in the public square was a challenge to government authority. Based on such reasoning, the Circuit found that Hawaii’s open carry licensing scheme “stands well within our traditions,” and upheld it.
Taken together with other Circuit precedent (the 2016 Peruta v. County of San Diego decision), this holding effectively means that no public carriage of a firearm is protected by the Second Amendment within the Ninth Circuit. In his dissent, Judge O’Scannlain summarized the majority opinion succinctly:
“The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms.’ . . . 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.”
George Young has appealed to the Supreme Court, and the Center to Keep and Bear Arms is filing an amicus curiae brief in support of his petition for certiorari.
