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AUGUST 4, 2018

WHAT'S UP, ATTORNEY?

Right to Carry Gun Openly in Hawaii Upheld by Court

by Atty. Emmanuel S. TIPON

"Everything has been said but not everyone has” said it.Morris Udall as quoted by Judge Richard R. Clifton, dissenting in Young v. State of Hawaii, No. 12-17808, (9th Cir. 07/24/2018).

Google “open carry Hawaii” and you will find numerous articles on yesterday’s (07/24/2018) U.S. Court of Appeals decision holding that the right to carry a firearm openly for self-defense falls within the scope of the Second Amendment. Some articles are cheering the decision, others are jeering at it.

George K. Young, Jr., a Hawaii County resident, wished to carry a firearm publicly for personal self-defense. He applied twice for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii’s Chief of Police because Young failed to satisfy § 134-9 of the Hawaii Revised Statutes (“H.R.S.”). § 134-9 is an exception to Hawaii’s “Place[s] to Keep” statutes, which generally require that gun owners keep their firearms at their “place of business, residence, or sojourn.” H.R.S. §§ 134-23, 134-24, 134-25. The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. H.R.S. § 134-9. Respecting concealed carry, § 134-9 provides that “[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant’s person or property, the chief of police . . . may grant a license to an applicant . . . to carry a pistol or revolver and ammunition therefor concealed on the person.” The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only “[w]here the urgency or the need has been sufficiently indicated” and the applicant “is engaged in the protection of life and property.” The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is “in the actual performance of his duties or within the area of his assignment.” Police Dep’t of Cty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct. 22, 1997).

Without a license under § 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27, and may only use those firearms while “actually engaged” in hunting or target shooting, H.R.S. § 134-5.

The Second Amendment to the U.S. Constitution provides: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

On June 12, 2012, Young sued in U.S. District Court in Hawaii under 42 U.S.C. § 1983 against the State of Hawaii, its then-Governor, Neil Abercrombie, and its then-Attorney General, the County of Hawaii, its Mayor, the Hilo County Police Department, and its then-Chief of Police, alleging that denying his application for a handgun license violates his Second Amendment right to carry a loaded firearm in public for self-defense. Young requested, among other things, injunctive and declaratory relief from the enforcement of § 134-9’s licensing requirements.

The U.S. District Court dismissed the case. Young appealed to the U.S. Court of Appeals, arguing that Hawaii County violated the Second Amendment by enforcing against him the State’s limitations in § 134-9 on the open carry of firearms to those “engaged in the protection of life and property” and on the concealed carry of firearms to those who can demonstrate an “exceptional case.”

SECOND AMENDMENT APPLIES AT HOME AND IN PUBLIC

A 3-judge panel of the U.S. Court of Appeals reversed the District Court, rejecting the argument that the Second Amendment only has force within the home. The Court stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. It said that while the concealed carry of firearms categorically falls outside such protection, it was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. The Court held that because § 134-9 restricted Young in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment.

The Court declared that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment. The Court stated that restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The Court pointed out that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The Court concluded that Hawaii’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violated the core of the Second Amendment and was void under any level of scrutiny.

The court said it did “not take lightly the problem of gun violence, which the State of Hawaii “has understandably sought to fight . . . with every legal tool at its disposal.” However, said the court, there was nothing in its opinion that would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State “a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.” “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.” Young v. State of Hawaii, No. 12-17808, (9th Cir. 07/24/2018).

Observation: A number of Hawaii public officials are panicking. They think that “open carry” is “scary”. One official reportedly said that “It turns us into the Wild West.” They want Hawaii County to have the case reconsidered by the entire court of appeals and if they lose to appeal to the Supreme Court. However, Tulsa World Editorial Board, on February 25, 2012 said: “In fact, a surprising number of states even allow open carry of handguns without a license. Contrary to the concerns of some opponents of open carry, such measures have not led to wild-West shootouts or other serious consequences.” A gubernatorial candidate was quoted by a Honolulu newspaper on July 25, 2018, as having said: “Hawaii’s safety and peace cannot be jeopardized because of decisions made far away from our shores by those who have political agendas such as the president.” Did he really say that or he was misquoted? If he was quoted correctly, is he suggesting that President Trump had something to do with the Court of Appeals decision? Susmariosep.

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ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice.

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