Attorney Eric R. Pangburn, partner at West & Dunn, analyzes a recent court decision upholding a Hawaiian statute placing limits on the right to carry a firearm in public.The Hawaiian law at issue requires that an individual obtain a permit in order to openly carry a firearm in public. In order to qualify for such a permit, an individual must (1) demonstrate the urgency or need to carry a firearm; (2) have good moral character; and (3) be engaged in the protection of life and property.
George Young applied for an open carry permit twice and the state denied his application both times. The state-based its denial on Mr. Young’s failure to identify the urgency or need to carry a firearm in public. Rather than attempt to demonstrate this specific need, Mr. Young instead relied upon his general desire to carry a firearm for self-defense, indicating he needed a firearm for “personal security, self-preservation and defense, and protection of personal family members and property.” After the second denial, Mr. Young commenced a lawsuit challenging Hawaii’s open carry permit law as an unconstitutional violation of his 2nd Amendment right to keep and bear arms.
The District Court rejected Mr. Young’s challenge. In doing so the District Court ruled that Hawaii’s open carry permit law did not violate the 2nd Amendment because the United States Supreme Court has recognized only a “narrow individual right to keep an operable handgun for self-defense.” The District Court found that Hawaii’s open carry permit law satisfied this requirement because individuals could still possess a firearm in their homes or businesses.
Additionally, the District Court found that Hawaii’s law protected the important and substantial interest in safeguarding the public from gun violence and therefore did not violate the 2nd Amendment. Mr. Young appealed the decision of the District Court to the Ninth Circuit.
When addressing whether Hawaii’s open carry law violated the 2nd Amendment, the Ninth Circuit indicated it first needed to look at whether the challenged law affects conduct protected by the 2nd Amendment. If the challenged law is the subject of longstanding, accepted regulations, the Ninth Circuit concluded, that law does not violate the 2nd Amendment. Therefore, the Ninth Circuit concluded, it first needed to look to whether, historically, the right to carry a firearm openly in public was protected by the 2nd Amendment.
The Ninth Circuit then undertook a lengthy examination of English law restricting the public possession of firearms, indicating such restrictions dated back to the thirteenth century. The Ninth Circuit then examined American colonial law, concluding that “restrictions on firearms in public were prevalent in colonial law.”
The Ninth Circuit then next looked to restrictions on the open carry of firearms following the ratification of the 2nd Amendment, indicating that states continued to place restrictions on the public carrying of firearms, including Hawaii, which had restrictions dating back to 1852.
Following this lengthy examination, the Ninth Circuit found there was a clear indication that the government has the power to regulate the carrying of firearms in public. In doing so, the Court indicated that government regulation of open carry “can be traced back to the founding era and are historically understood to fall outside of the 2nd Amendment’s scope and thus may be upheld without further analysis.”
Based on its interpretation of historical restrictions on the open carrying of firearms, the Court concluded that Hawaii’s open carry permit law was consistent with the requirements of the 2nd Amendment and, therefore, not unconstitutional. Thus, Mr. Young’s challenge of Hawaii’s open carry permit law was denied.
Have you been denied a permit to carry a firearm or been charged with a crime involving the use of a firearm? If so, the experienced attorneys at West & Dunn are here to help you. Contact our office for a free consultation today.