Hawaii gun advocates were dealt a blow Wednesday by a federal court ruling that upheld state laws regulating the open carry of firearms in public.

The decision stems from a 2012 case of a Big Island man who had been repeatedly denied an open carry permit. The majority of an 11-member panel of judges from the U.S. Court of Appeals for the 9th Circuit ruled in favor of the state in the man’s latest legal challenge.

The 127-page majority decision, written by Judge Jay Bybee, is the most recent federal court ruling to declare that the right to bear arms, enshrined in the Second Amendment, is not absolute. The ruling comes at a time when other circuits are ruling differently, and also lands as the country experienced two mass shootings in the past few weeks — in Boulder, Colorado, and Atlanta, Georgia.

“Today’s ruling, joined by respected appellate judges across the ideological spectrum, is the latest reminder that arguments against reasonable, life-saving gun laws rarely hold up in the courtroom,” Eric Tirschwell, managing director of Everytown Law, a gun safety group that took part in the case, said in a statement.

Ironically, the ruling came as a new report showed a 63% increase in firearm applications in Hawaii last year.

A federal appeals court decision upheld Hawaii’s ban on openly carrying a weapon without a permit. Marina Riker/Civil Beat/2018

In 2011, George Young, a Hilo resident, tried to get concealed and open carry licenses from the county.

State law requires that an applicant be 21 years old and a U.S. citizen. However, the law also requires applicants to demonstrate that they need a firearm on their person because they fear injury to themselves or their property.

The decision on whether or not to grant a license falls to each county’s police chief. Young’s applications were denied by Hawaii County Police Chief Paul Ferreira.

Alan Beck, a prominent gun rights attorney who represents Young, said Young lives in a remote area of the state where police response times may be slow. He wanted a gun to protect himself.

Young sued the state and county in federal court for violations of his Second Amendment rights. The court ruled in favor of the government, and Beck took the case to the 9th Circuit.

In 2018, a three-member panel ruled in favor of Young, finding that Hawaii’s licensing laws are unconstitutional. The state appealed, and Wednesday’s ruling is the latest development in the case.

“Today’s en banc opinion properly upheld the constitutionality of our State’s longstanding law allowing persons to carry firearms openly in public when licensed to do so,” Hawaii Attorney General Clare Connors said in a written statement. “The Second Amendment does not provide a blanket right to carry firearms in public. Instead, it allows States to enact common sense regulations like those we have in Hawaii.”  

Beck said he plans to appeal the case further to the U.S. Supreme Court. He says the 9th Circuit decision has caused a split among how the federal circuits interpret gun laws. That alone, he says, should be reason for the nation’s highest court to take up the case.

“The Second Amendment can’t mean one thing in California, in Texas it means something else, and then in Tennessee something different entirely,” Beck said.

States Have Right To Regulate

The 9th Circuit opinion suggests that it’s up to local governments to determine who gets to carry a weapon in public.

The court traces the legal precedence for regulating weapons in public spaces all the way back to royal edicts issued by English monarchs in the 1200s and 1300s and links those with regulations of arms during the American colonial period.

The court cites an 1852 law passed during the reign of Kamehameha III that regulated the carrying of swords, knives, pistols and “slung-shots” in public.

“Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces,” Bybee wrote in the court opinion.

As an example, Bybee pointed to rules in colonial laws that require individuals to carry their firearms to church.

“When the government imposes such a duty it assumes that it has the power to regulate the public carrying of weapons; whether it forbids them or commands them, the government is regulating the practice of public carrying,” the opinion stated.

The court drew a distinction between the right to protect oneself in the home, versus out in public. That has drawn criticism from local gun rights activists.

“It’s kind of contradictory to the intent of the Second Amendment,” Andrew Namiki-Roberts, associate director of the Hawaii Firearms Coalition, said. “It was obviously meant to allow people to defend themselves in the communities they live in … at home and at work.”

In a dissenting opinion, Judge Diarmuid O’Scannlain called the ruling extreme.

The 9th Circuit’s opinion comes in the wake of two shootings on the mainland that have reawakened calls for gun control. Above, a sign at a 2018 gun control rally at the Hawaii Capitol. Anthony Quintano/Civil Beat/2018

“We now become the first and only court of appeals to hold that the public carry falls entirely outside the scope of the (Second) Amendment’s protections,” O’Scannlain wrote, adding that the ruling reduces the right to bear arms “to a mere inkblot.”

O’Scannlain added that gun control is still a serious problem in the U.S., but that Hawaii’s law prohibiting the open carry of handguns shouldn’t stand.

The court’s ruling was welcome news to gun control groups, like the Giffords Law Center to Prevent Gun Violence.

“The originalist justices of the U.S. Supreme Court should take note: history supports gun regulations like Hawaii’s, and history is on the side of the millions of Americans demanding action with gun violence rising nationwide,” Hannah Shearer, litigation director of the center, said in a press release.

National Conversation

A 21-year-old male suspect is facing 10 counts of murder after shooting into a crowd at a store in Colorado. Meanwhile, another man is also facing murder charges after killing eight, mostly Asian women, at massage parlors in Atlanta.

The shootings have reignited the national conversation around gun violence and ethnic hate crimes in the U.S. President Joe Biden on Tuesday called on Congress to close background check loopholes and ban assault rifles.

But amid that national conversation, Hawaii residents seem more interested in owning a firearm.

The state processed more than 26,000 firearm permit applications in 2020, a 63% increase from the year before. It’s a record high total, according to the AG’s office. 

Those permits covered more than 53,000 registered firearms, a 35% increase from 2019.

Of the applications processed in 2020, about 96% were approved, 1.4% were approved but later voided after applicants failed to pick up their permits within the specified time period and a record high proportion of 2.8% were denied due to disqualifying factors, according to a press release.

Namiki-Roberts, from the Hawaii gun rights group, believes those numbers could be higher if the state was quicker at processing applications. He chalks up the increase to fears of the Biden administration pushing for tighter gun laws and the civil unrest from last summer.

But it’s fear of an increasingly armed society that Bybee, the federal judge, warned against in the court opinion. Knives and daggers haven’t changed much over the last several hundred years, but handguns have.

“It remains as true today as it was centuries ago, that the mere presence of such weapons presents a terror to the public and that widespread carrying of handguns would strongly suggest that state and local governments have lost control of our public areas,” the judge wrote.

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