Young v. State

Decision Date24 March 2021
Docket NumberNo. 12-17808,12-17808
Citation992 F.3d 765
Parties George K. YOUNG, Jr., Plaintiff-Appellant, v. STATE of Hawaii; Neil Abercrombie, in his capacity as Governor of the State of Hawaii; David Mark Louie I, Esquire, in his capacity as State Attorney General; County of Hawaii, as a sub-agency of the State of Hawaii; William P. Kenoi, in his capacity as Mayor of the County of Hawaii; Hilo County Police Department, as a sub-agency of the County of Hawaii; Harry S. Kubojiri, in his capacity as Chief of Police; John Does, 1–25; Jane Does, 1–25; Doe Corporations, 1–5; Doe Entities, 1–5, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

BYBEE, Circuit Judge:

TABLE OF CONTENTS

I. BACKGROUND AND PROCEEDINGS ... 773
A. Hawai‘i's Licensing Scheme ... 773
1. History of Firearm Regulation in Hawai‘i ... 773
2. Hawai‘i's Current Scheme ... 775
a. The statute ... 775
b. The County of Hawai‘i's regulations ... 776
c. Hawai‘i Attorney General Opinion Letter ... 776
B. Facts and Proceedings ... 777
II. THE STANDARDS FOR OUR REVIEW ... 778
A. Standards of Review of Law and Fact ... 778
B. Scope of Our Review ... 778
C. Substantive Standards for the Second Amendment ... 781
1. Heller ... 781
2. Our Post- Heller Framework ... 783
III. PUBLIC CARRY OF FIREARMS AND THE SCOPE OF THE SECOND AMENDMENT ... 784
A. The English Right to Bear Arms in Public ... 786
1. The Royal Decrees ... 786
2. The Statute of Northampton ... 787
a. The statute ... 787
b. Enforcement ... 789
c. Cases ... 790
d. Treatises ... 792
3. The English Bill of Rights ... 793
B. Colonial Restrictions on the Right to Bear Arms in Public ... 794
C. Post Second Amendment Restrictions on the Right to Bear Arms ... 796
1. Post-Ratification Restrictions ... 797
2. Nineteenth-Century Restrictions ... 798
a. The statutes ... 798
b. The cases ... 802
c. Treatises ... 808
3. Twentieth-Century Restrictions ... 811
D. The Power to Regulate Arms in the Public Square ... 813
1. The Basic Rule ... 813
2. The Exceptions ... 818
a. Classes of persons ... 818
b. Places ... 819
c. Licensing and good-cause requirements ... 819
d. Surety ... 819
E. Response to the Dissent ... 821
F. Application to HRS § 134-9 ... 826
IV. OTHER CLAIMS ... 826
A. Prior Restraint ... 827
B. Procedural Challenge ... 828
V. CONCLUSION ... 828

The State of Hawai‘i requires its residents to obtain a license to carry a firearm in public. To satisfy the statutory requirements for an open-carry license, residents must demonstrate "the urgency or the need" to carry a firearm, must be of good moral character, and must be "engaged in the protection of life and property." Appellant George Young applied for a firearm-carry license twice in 2011, but failed to identify "the urgency or the need" to openly carry a firearm in public. Instead, Young relied upon his general desire to carry a firearm for self-defense. Both of Young's applications were denied. Young brought a facial challenge to Hawai‘i's firearm-licensing law under the Second Amendment and the Due Process Clause of the Fourteenth Amendment. The district court upheld Hawai‘i's statute.

We have previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego , 824 F.3d 919 (9th Cir. 2016) (en banc). The question presented in this case is whether individuals have a right to carry weapons openly in public. In order to answer that question, and consistent with the Supreme Court's decisions in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), we ask, first, whether Hawai‘i's law affects conduct protected by the Second Amendment. If so, we then determine if the law can survive the appropriate level of scrutiny. After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i's restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai‘i's firearms-carry scheme is lawful. We affirm the judgment of the district court.

I. BACKGROUND AND PROCEEDINGS
A. Hawai‘i's Licensing Scheme
1. History of Firearm Regulation in Hawai‘i

Hawai‘i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago—nearly fifty years before it became a U.S. territory and more than a century before it became a state. Hawai‘i enacted its first statutory regulation of public carry in 1852. The aptly named "Act To Prevent the Carrying of Deadly Weapons" recognized that "the habit of carrying deadly weapons is dangerous to life and the public peace."

Act of May 25, 1852, 1852 Haw. Sess. Laws 19. To combat those risks, Hawai‘i's pre-territorial legislative council prescribed fines and imprisonment for "[a]ny person not authorized by law, who shall carry, or be found armed with, any bowie-knife, sword-cane, pistol, air-gun, slung-shot or other deadly weapon." Id. § 1. The Act of May 25, 1852 categorically exempted certain professionals "authorized to bear arms," such as those "holding official, military, or naval rank ... when [the firearm was] worn for legitimate purposes." Id. § 2.

Hawai‘i's regulation of dangerous weapons remained in effect after Hawai‘i consented to annexation as a U.S. territory in 1898. Under the Newlands Resolution, "[t]he municipal legislation of the Hawaiian Islands ... not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." Resolution of July 7, 1898, 30 Stat. 750. See Territory of Hawai‘i v. Mankichi , 190 U.S. 197, 209, 23 S.Ct. 787, 47 L.Ed. 1016 (1903). Hawai‘i's territorial legislature renewed its 1852 limitations on the carrying of dangerous weapons in a 1905 Act, as amended in 1913. Haw. Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw. Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913 statute made it unlawful to carry deadly weapons unless "authorized by law." Id. The statute imposed civil and criminal penalties on anyone who carried a "deadly weapon" without prior authorization "unless good cause be shown for having such dangerous weapon." Id.

In 1927, Hawai‘i implemented its first restriction on firearms specifically, as opposed to restrictions on the broader class of "deadly weapons." In a section entitled "Carrying or keeping small arms by unlicensed person," the law provided:

Except as otherwise provided in Sections 7 and 11 hereof in respect of certain licensees, no person shall carry, keep, possess or have under his control a pistol or revolver; provided, however, that any person who shall have lawfully acquired the ownership or possession of a pistol or revolver may, for purposes of protection and with or without a license, keep the same in the dwelling house or business office personally occupied by him, and, in the case of an unlawful attack upon any person or property in said house or office, said pistol or revolver may be carried in any lawful, hot pursuit of the assailant.

Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927 Act, which was modeled in part on the Uniform Firearms Act, required a person to obtain a license to carry a "pistol or revolver concealed upon his person or to carry one elsewhere than in his home or office." Id. § 7. Carry licenses could be issued by the sheriff or a sitting judge after either had determined that applicant was "suitable ... to be so licensed." Id. An applicant was deemed "suitable" to carry a firearm upon meeting a citizenship and age requirement and showing a "good reason to fear an injury to his person or property, or ... other proper reason for carrying a pistol or revolver." Id.

In 1933, the Hawai‘i legislature further refined its concealed-carry licensing scheme. Act 26, § 8, 1933–1934 Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealed weapon, the applicant had to demonstrate an "exceptional case" and a "good reason to fear injury to his person or property." Id.

The "exceptional case" and "good reason to fear injury" requirements included in the 1933 Act became staples of Hawai‘i's future firearm regulations. The Hawai‘i legislature included those requirements in its 1961 Act "Relating to Permits to Carry Firearms." Act 163, 1961 Haw. Sess. Laws 215. The 1961 regulations mirrored those in the 1933 statute and required an applicant to demonstrate an "exceptional case" and a "good reason [for the applicant] to fear injury to his person or property" before publicly carrying a firearm. Id. § 1. Whereas the 1933 Act only applied to concealed carry, however, the 1961 Act announced a new regulatory scheme for open carry. An individual seeking to carry a firearm openly in public was required to demonstrate "the urgency of the need" to carry and must be "engaged in the protection of life and property." Id. If the applicant made such a showing and was not otherwise prohibited from possessing a firearm, the chief of police had discretion to grant the carry application. Id. ("[T]he respective chiefs of police may grant a license ....").

2. Hawai‘i's Current Scheme

a. The statute . Hawai‘i's current scheme allows individuals to possess firearms under a variety of circumstances. First, individuals who are not members of law enforcement, the armed forces, or certain federal agencies and wish to carry firearms in places outside of their homes, places of business or sojourns must obtain a license from the county chief of police. Hawai‘i Revised Statutes (HRS) § 134-9(a). Second, individuals may possess firearms in their homes, places of business, and sojourns. Id. § 134-23. Third, persons who are authorized by their public...

To continue reading

Request your trial
65 cases
  • Fouts v. Bonta
    • United States
    • U.S. District Court — Southern District of California
    • September 22, 2021
    ...for Second Amendment CasesThe Ninth Circuit has developed its own two-step framework for Second Amendment cases. Young v. Hawaii , 992 F.3d 765, 783 (9th Cir. 2021) (en banc); Bauer v. Becerra , 858 F.3d 1216, 1221 (9th Cir. 2017) ("two-step Second Amendment inquiry"); Yukutake v. Conners ,......
  • Jones v. Bonta
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 11, 2022
    ...for challenges to firearm laws under the Second and Fourteenth Amendments, we apply a "two-step framework." Young v. Hawaii , 992 F.3d 765, 783 (9th Cir. 2021) (en banc). First, we ask "whether the challenged law burdens conduct protected by the Second Amendment." Fyock , 779 F.3d at 996 (i......
  • Rodriguez Diaz v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 21, 2022
    ...meaning that "the plaintiff must show that ‘no set of circumstances exists under which the statute would be valid.’ " Young v. Hawaii , 992 F.3d 765, 779 (9th Cir. 2021) (quoting Hotel & Motel Ass'n of Oakland v. City of Oakland , 344 F.3d 959, 971 (9th Cir. 2003) ) (alterations omitted). A......
  • Brach v. Newsom
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 23, 2021
    ...summary judgment without mentioning a Meyer - Pierce claim, Plaintiffs did not request reconsideration. See Young v. Hawaii , 992 F.3d 765, 779–80 (9th Cir. 2021) (en banc). And Plaintiffs candidly conceded at oral argument that they cannot and do not fault the district court for not addres......
  • Request a trial to view additional results
3 books & journal articles
  • Second-Class' Rhetoric, Ideology, and Doctrinal Change
    • United States
    • Georgetown Law Journal No. 110-3, March 2022
    • March 1, 2022
    ...(quoting Friedman , 136 S. Ct. at 450)). 222. See Young v. Hawaii, 896 F.3d 1044, 1048, 1051 (9th Cir. 2018), rev’d on reh’g en banc , 992 F.3d 765 (9th Cir. 2021); Teixeira v. Cnty. of Alameda, 822 F.3d 1047, 1049, 1063 (9th Cir. 2016), rev’d on reh’g en banc , 873 F.3d 670 (9th Cir. 2017)......
  • SECURING GUN RIGHTS BY STATUTE: THE RIGHT TO KEEP AND BEAR ARMS OUTSIDE THE CONSTITUTION.
    • United States
    • Michigan Law Review Vol. 120 No. 4, February 2022
    • February 1, 2022
    ...A Second Amendment Moment: The Constitutional Politics of Gun Control, 71 BROOK. L. REV. 715, 749 (2005); see also Young v. Hawaii, 992 F.3d 765, 784-813 (9th Cir. 2021) (en banc) (tracing restrictions on publicly carrying firearms from medieval England through twentieth-century America), p......
  • Antisubordinating the Second Amendment.
    • United States
    • Yale Law Journal Vol. 132 No. 6, April 2023
    • April 1, 2023
    ...Id. (184.) Id. (emphasis added). (185.) Id. (citing his concurrence in McDonald v. City of Chicago, 561 U.S. 742, 857 (2010)). (186.) 992 F.3d 765, 773, 777 (9th Cir. 2021) (en (187.) Id. at 829 (O'Scannlain, J., dissenting). (188.) Id. at 840. (189.) Id. at 841 (quoting Dred Scott v. Sandf......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT