A three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled on July 24 that the Second Amendment guarantees Americans’ right to carry a gun for self-defense in public, overturning a Hawaii licensing rule that limited gun possession to the home.
The ruling, which comes one year after the Supreme Court declined to rule on the same question in Peruda vs. San Diego County, overturns a Hawaii court of appeals ruling that held officials did not violate a plaintiff’s Second Amendment rights by prohibiting him from carrying outside of his home. The opposing decisions make it more likely the Supreme Court will be forced to hear the question of carry outside the home.
“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain, wrote in her majority opinion for the two-judge majority. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”
The plaintiff, George Young, sued after a state official “twice [denied] him a permit to carry a gun outside,” Reuters reported.
The decision does not affect previous court rulings that the Second Amendment does not guarantee a citizen’s right to carry a concealed weapon in public. The new ruling comes exactly one week after the 9th Circuit upheld a lower court’s ruling that California’s high-capacity-magazine ban was unconstitutional.
The new court decision therefore struck down a Hawaii law that limited open carry privileges to people “engaged in the protection of life and property,” declaring the law to be unconstitutional. The court also prohibited Hawaii County from enforcing the law.
The court acknowledged the right to carry a gun in public is subject to some regulation, such as prohibiting firearms in schools or government buildings.
However, a lawyer for Hawaii County admitted that to his knowledge no one other than security guards “or someone similarly employed” had ever been issued an open carry license by the chief of police on Hawaii Island, according to the decision.
That level of restriction restricts the “right” to open carry to a select few, and therefore forecloses law-abiding citizens from exercising a core constitutional right, according to the decision.
Official state government reaction was swift in coming.
State Senate Judiciary Committee Vice Chairman Karl Rhoads, who has introduced a number of bills in the House and Senate over the years to make Hawaii gun control laws stricter, said allowing people to openly carry loaded firearms in public is “a terrible idea,” The Honolulu Star Advertiser reported.
Hawaii has the fourth-lowest level of gun violence in the nation, and none of the three states with lower levels of gun violence than Hawaii has an “open carry” law, he said.
“It turns us into the Wild West —whoever shoots first is the one who wins,” said Rhoads (D, Downtown-Nuuanu-Liliha).
“It just turns us into Dodge City and the quick or the dead, and that’s it.”
Rhoads said that if Hawaii County appeals the decision to a larger panel of judges with the 9th Circuit Court of Appeals, and if that decision is then appealed to the US Supreme Court, it could take two years before the state is actually required to loosen its restrictions on carrying firearms in public.
U.S. Rep. Colleen Hanabusa said Hawaii County should immediately file a petition requesting a rehearing from 11 other 9th Circuit justices. She said the latest decision comes about two years after the entire 9th Circuit ruled that there is no right to carry concealed guns in public.
“This is not a Second Amendment issue. It’s a states’ rights issue. We shouldn’t fool ourselves,” Hana-busa said in a written statement. “This issue will end up before the U.S. Supreme Court and the state of Hawaii will have to join and argue on behalf of states’ rights. We know how best to regulate firearms to keep our communities safe and respect the rights of law abiding gun owners.”
The Ninth Circuit judge in the Hawaii case reiterated that the Second Amendment right to keep and bear arms is the “true palladium of liberty,” and is not “a second-class right” to be treated differently from other individual constitutional rights.
Gov. David Ige said the state will urge Hawaii County to appeal, and will file a brief supporting that appeal.
