Hawaii seeks to have pro-gun victory overturned, retried

Hawaii Lt. Gov. Douglas Chin, seen at the signing of a gun control bill with Moms Demand Action advocates in July, said “To promote public safety, we must defend our state laws,” in response to a challenge to the state’s restrictive laws on open carry. (Photo: Chin’s office)

The state is seeking a do-over in a case that said Hawaii’s restrictions on the open carry of firearms in public were not in line with the Second Amendment.

State and local officials last week filed a 114-page request to overturn the decision of a three-judge panel of the U.S. 9th Circuit and send the case before a larger 11-judge en banc panel for a retrial. At stake is Hawaii’s ability to keep its strict limits on the unconcealed carry of firearms in public, which a two-judge majority found in July was unconstitutional.

“The importance of this case is beyond dispute,” argues Hawaii officials in the filing. “The panel struck down carry restrictions that have been in effect in Hawaii in some form for over 150 years. In doing so, it overruled a sovereign State’s judgment on a matter of the utmost concern to public safety. And it did so on the basis of a severe misunderstanding of state law.”

The case involves George Young, whose repeated attempts to obtain a permit going back as far as 2011 were rebuffed in a state where it is notoriously hard to be granted a carry permit of any sort. Young held that his denial of an application for a handgun license stepped on his Second Amendment rights to carry a loaded firearm openly for self-defense outside of the home and the panel agreed. Hawaii law narrowly allows the ability to open carry to a select few — such as security guards — which the state supported in arguments earlier this year. This, the majority held, was just plain wrong.

However, in a 10-page opinion, delivered last week by Hawaii Attorney General Robert Suzuki to Lt. Gov. Douglas Chin, the state’s top lawyer said state law does not limit “unconcealed carry licenses” to just private security officers, and that police chiefs can grant such licenses to those who meet certain standards.

“This opinion validates what many Hawai‘i residents believe, and that is that our firearms laws keep our communities safe,” said Chin, a Democrat, in a statement. “To promote public safety, we must defend our state laws.”

The case has wider ramifications than in the nation’s 50th state. As noted in the filing last week, “If left undisturbed, the panel’s decision will thus deprive States like Hawaii and California of the tools necessary to protect their residents from gun violence that Maryland, New Jersey, and New York have all been found to possess.”

To help buttress their case, the state has enlisted big-name legal muscle in their fight, namely Georgetown University Law professor Neal Katyal, who served as Acting Solicitor General under President Obama.

Headquartered in San Francisco, the 9th is the largest of the 13 U.S. courts of appeals, with 29 active judgeships. Due to its size, it is the only appeals court that conducts en banc rehearings with an 11-judge panel, the rest requiring the full roster. A majority of non-recused active judges from the Circuit have to vote to rehear the case, a move that is rarely granted. Regardless of the outcome, a further challenge to the Supreme Court is likely in the case.