The wild, wild west in the Aloha State?
Hold your horses. Maybe not.
The state and Hawaii County filed a joint petition Friday asking the 9th Circuit Court of Appeals to reconsider a ruling in July that would make it easier for firearms to be carried openly.
A three-judge panel of the court in July handed down a 2-1 opinion that declared Hawaii’s requirement for getting a license to carry a firearm in public a violation of the U.S. Constitution’s Second Amendment right to bear arms for self-defense.
In it petition Friday, the state asked the court to take a second look at the case in a process known as “en banc,” in which the court’s judges reconsider the case with a panel of 11 judges.
The state also brought in a Washington lawyer to help fight the case. Neal Katyal, the former acting U.S. solicitor general who argued the travel ban case for Hawaii, signed Hawaii’s petition to the court.
George K. Young Jr. of Hilo sued the state and Hawaii Police Department in 2012 after then-Hawaii Police Chief Harry Kubojiri twice rejected his application for a license to carry a firearm.
State firearm laws prohibit carrying a firearm in public except to transport it to and from places where it can be purchased and used legally, such as from a gun shop to your home or to the police department for registration. The firearm must be unloaded and in an enclosed container.
The chief of police of each county is responsible for firearm registration and issuing firearm licenses. The law allows for the chief, in exceptional cases, to grant a license to carry a loaded revolver or pistol to an applicant who shows reason to fear injury to himself or his property.
In his case, Young appealed to the U.S. District Court in Hawaii but was rejected. He then appealed to the 9th Circuit, which assigned a three-judge panel to hear the case.
That panel’s 2-1 opinion declared, among other things, that the exceptional-case requirement impinges on the right of a responsible, law-abiding citizen to carry a firearm openly for self-defense outside of his home.
According to Friday’s petition, however, the panel’s ruling is based on a fundamental misunderstanding of Hawaii law. The panel, it says, invalidated Hawaii’s law on the ground that it limits open-carry licenses to security guards and other people whose jobs require protecting life and property.
“But that is just wrong,” the filing says. The law makes open-carry license available to any qualified individual who “sufficiently indicates” an “urgency” or “need” to carry a firearm and who is “engaged in the protection of life and property.”
The panel diverged from the decisions of three other circuit courts that held the “core” of the Second Amendment does not include a right to public carry, the petition says.
“If let 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,” the document argues.
The petition asks the 9th Circuit to throw out the decision so that it can be reassessed based on “an accurate understanding of Hawaii law.”
It also notes that Hawaii Attorney General Russell Suzuki issued an opinion this week saying the law extends not only to security officers, but private individuals as well. The opinion advises police chiefs that victims of domestic violence and anyone who faces a credible threat of armed robbery or violent crime may be eligible for open-carry licenses.
State Lt. Gov. Doug Chin issued a statement saying the opinion provides “excellent guidance” to police chiefs charged with issuing firearm licenses in Hawaii.
“This opinion validates what many Hawaii residents believe, and that is that our firearms laws keep our communities safe. To promote public safety, we must defend our state laws,” Chin said.
Attorneys for Young sounded skeptical when asked about the opinion.
“It’s a litigation tactic,” attorney Alan Beck said of the AG’s opinion. “It was written so they could write this petition. It’s them being good lawyers. It’s their duty to uphold the law of Hawaii.”
Beck said that while it can be argued Hawaii’s law allows for open carry, the reality is that the state rarely issues any licenses — only four in the last 18 years.
“The bottom line is that the state doesn’t issue permits,” he said.
Beck said his client is in great shape because Hawaii is an outlier when it comes to following the Second Amendment, and the U.S. Supreme Court is likely to take the case if it has to be appealed.
According to the court’s website, en banc calls are common but they are rarely granted. In an average year there are approximately 1,500 requests for a rehearing en banc at the 9th Circuit Court, but only between 15 and 25 are granted.