Insight: Hawaii has long history of strict firearms laws

Hawaii’s imposed limits on the public carry of firearms date back to 1852, when the Kingdom of Hawaii’s Legislative Council enacted a statute making it a criminal offense for anyone unauthorized by law to be armed with a pistol or other deadly weapon “unless good cause be shown for having such dangerous weapons.”

Seventy-five years later, the Territorial Legislature added a license requirement and limited issue to those who could show “good reason to fear an injury to his person or property” or “other proper reason for carrying” a firearm.

Fast forward to earlier this month, when the state and Hawaii County prepared to file a joint petition asking the 9th U.S. Circuit Court of Appeals to reconsider a July ruling that would make it easier for firearms to be carried openly. A letter issued by Hawaii Attorney General Russell Suzuki, on Sept. 11, pointed out that current law has changed little since the early 1960s.

Hawaii’s gun control laws routinely rank among the toughest nationwide. That status evolved, in part, from a combination of local culture and geographic isolation.

“Basically, it’s the community wanting a safer place to live in — that’s where it all started from,” said former Honolulu Police Chief Lee Donohue, who served a total of four decades with the department, retiring in 2004 after six years in the top post. During his Honolulu Police Department tenure, the city usually had one of the lowest gun violence and homicide rates among larger U.S. cities — a trend that continues to hold.

“The experts have said if there’s any one statistic that you can rely on in (determining) the safety of a community, it’s the homicide rate because that’s one statistic you cannot fudge,” Donohue said. “So that speaks well of Hawaii, and the safety of our community.”

Hawaii’s profile as a law-abiding state — often opting for firearm restrictions over gun ownership privilege — was shaped by factors ranging from plantation-era multicultural diversity, to the voting records of state leaders, such as the late U.S. Sen. Daniel Inouye, who earned an “F” rating from the National Rifle Association, through which he was dubbed a “consistent anti-gun candidate.”

And due to the state’s mid-Pacific isolation, Hawaii-bound transport of guns is largely limited to regulated planes and cargo shipment. That scrutiny helps assure legal compliance, compared with mainland states where laws can be undermined by driving across state lines.

In recent years, as several other states have made it easier to carry or buy firearms, Hawaii instead has tightened restrictions.

This year, for example, Hawaii became one of eight states to ban possession of so-called “bump fire stocks.” And in 2016, Hawaii became the first state — still the only state — to enter gun owners’ information into an FBI database that automatically notifies police if a Hawaii resident is arrested anywhere else in the country.

Former state Sen. Will Espero introduced that bill for the “Rap Back” database, plus other measures in the Legislature over past decades, in an effort to make gun control laws more strict.

“Here in Hawaii we have been more conservative on the gun laws. We have been wanting gun control. We have been wanting oversight, regulation and conditions, which we have implemented and put into law. And I think that’s contributed to our safe and secure environment,” Espero said.

TOUGH FOR LEGAL GUN OWNERS

Harvey Gerwig, president of the Hawaii Rifle Association, counters that gun-rights advocates see much of the legislation as paltry protection.

“I don’t believe for a minute that all these tough laws stop crime,” Gerwig said. He points to social mores, or norms, informing acceptable behavior as largely responsible for low crime figures.

“The legal gun-owning community includes some of the most law-abiding people on the face of the Earth. And yet they (state lawmakers) keep trying to pass more and more and more laws that only impact us honest gun owners — while, clearly, the bad guys don’t follow any of these laws.”

This upshot, Gerwig said, is unfair to anyone who wants to own guns for self-defense, hunting and target-shooting sports. The Legislature’s stance, he said, “makes it more and more difficult for a normal law-abiding citizen to own and operate a gun legally.”

Currently, Hawaii is among 15 states that require a license or permit for “open carry.” Five states and Washington, D.C., ban the practice. The rest now allow the open carrying of a handgun without any license or permit, although in some cases, the gun must be unloaded.

State law limits Hawaii’s police chiefs to issuing open-carry permits in “exceptional” cases involving people “engaged in the protection of life and property,” which has so far been almost always restricted to security guards.

But a current legal challenge — brought by George Young Jr., a Vietnam veteran and former law enforcement officer at Hilo International Airport — aims to loosen Hawaii’s open-carry practice.

On July 24, a three-judge panel from the 9th U.S. Circuit Court of Appeals ruled 2-1 that Young’s rights under the U.S. Constitution were violated when he was denied a permit to carry a gun in public for self-defense, reversing a lower court ruling in favor of the state’s stance that the Second Amendment rights in question apply only to guns kept in homes.

OPEN-CARRY LAW TESTED

A decade ago, the U.S. Supreme Court ruled that the Second Amendment grants individuals the right to keep firearms in their homes — although not without limits. Prior to that, courts held that the matter pertained largely to state militias, not personal protection.

The latest ruling in Young’s case asserts that most citizens should be allowed to own and carry firearms, for the sake of protection, openly in public places as well as in homes. However, the court did acknowledge that the right should be subject to some regulation, such as prohibiting firearms in schools or government buildings.

Young has said he sees an open-carry permit as a sensible layer of personal protection, “a matter of having (a firearm) available if and when I need it, in the car or someplace where it’s convenient for self-defense.”

Shortly after the three-judge panel’s ruling, Gerwig said, his phone started ringing. “I got dozens and dozens of calls, with our (rifle association) members asking: ‘Can I carry now? Can I carry now? ’ … Everybody was really excited, saying: ‘Wow, are we part of the U.S. now?’” In response, Gerwig said he quipped, “Not yet. Not yet.”

Hawaii’s open-carry law remains in place as Young’s case continues. In its petition filed last month, the state and Hawaii County asked the 9th Circuit Court to take a second look at the case in a process known as “en banc,” in which the full court’s 11 judges reconsider the case.

A STATES’ RIGHTS ISSUE?

In the three-judge panel’s majority opinion, Judge Diarmuid O’Scannlain wrote: “We do not take lightly the problem of gun violence, which the State of Hawaii has understandably sought to fight. … But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.” Essentially, the opinion found that by too-rarely issuing permits to a private citizen for either open or concealed carry, Hawaii’s law serves as a de facto ban.

Four years ago, O’Scannlain came to a similar conclusion in a challenge regarding whether individuals have a right to carry a concealed weapon. The decision was overturned in an en banc hearing.

If Hawaii’s appeal effort fails, state legislators would be tasked with re-crafting the open-carry law so that a permit is easier to obtain. If the appeal succeeds, Young’s case could be booted to Washington, D.C., to the U.S. Supreme Court.

Retired state Supreme Court Justice Steven Levinson, who now serves as a Honolulu police commissioner, has pointed out: “The bottom line is that the state cannot be more restrictive than what the Second Amendment allows.” If the high court were to pick up the case, it would decide the constitutional scope.

Espero said he would prefer to see the matter handled at state Capitols.

“This should be a states’ rights” issue, for each state to decide, and not in federal court,” he said. “In terms of the Second Amendment, no one is trying to take anyone’s gun away” when a firearm is obtained and used in a legal manner.

PUBLIC SAFETY CONCERNS

To the contrary, there may now be as many guns as there are residents statewide. Estimates made during the late 1990s by the state Department of the Attorney General and HPD placed the number of privately owned firearms in Hawaii at “at least 1 million.” From 2000 through 2017, a total of nearly 561,260 firearms were registered (including some more than once, by different owners). However, there’s currently no way to track the number of firearms that permanently leave the state.

Should Hawaii have to allow far more guns on the streets than today, Espero said, the islands could be a more dangerous place. “It will increase the possibility … of shootings in the public domain,” in places like shopping centers and beach parks, he said. “It may mean more shootings between police and Joe Public, who thinks he’s in the right.”

He added, “Certainly, this is one of those issues that is clearly divisive. … There is no gray area — you’re either for it or against it. For those of us who don’t want (expanded) open-carry … we feel that that’s going to hurt public safety, whereas our opponents feel that it’s going to help it.”