Going after Hawaii’s carry laws

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Going after Hawaii’s carry laws

It should be noted, though, that one judge stated flatly that the Second Amendment did not extend to concealed carry (as per another 9th Circuit decision), that there is no right to carry a concealed firearm outside the home.

Last month, the case George Young, Jr v. State of Hawaii was argued in front of a three judge panel of the 9th Circuit Court of Appeals by attorney Alan Beck. The case challenges the constitutionality of the state’s current licensing scheme of issuing (or in this case, denying) carry permits for concealed AND unconcealed firearms.

Where this case differs from other carry cases is that both forms of carry require government permission. The Chief of Police has total discretion for issuing concealed carry permits to individuals who demonstrate an “exceptional case” to obtain one, yet offering no criteria for what “exceptional” means. He hasn’t issued a concealed carry permit in 20 years, nor has he issued open carry permits to anyone other than security guards, creating a de facto total ban on any form of “bearing arms” outside the home for the average citizen.

While gun owners have become accustomed to 9th Circuit judges’ disregard for the Constitution, the odds of this going our way are better than most. Circuit Judges O’Scannlain, Clifton, Ikuta, all Republican appointees (which doesn’t always guarantee they’ll sway on the side of gun rights, but it helps) really dug into the government attorney’s argument to the point that he openly conceded on more than one occasion that the law in question was likely unconstitutional.

It should be noted, though, that one judge stated flatly that the Second Amendment did not extend to concealed carry (as per another 9th Circuit decision), that there is no right to carry a concealed firearm outside the home.

However, when discussing whether Second Amendment protections of the right to bear arms extends to OPEN carry outside the home and who could conceivably obtain an unconcealed/open carry permit, the government’s attorney, for arguments sake, claimed even if it did protect the right outside the home, the law didn’t conflict with the right because certain classes of people as a condition of their employment could still get a permit, or if a person is actively engaged in the protection of life and property. Under further questioning by the judges, the government’s attorney conceded that no persons except security guards, while on duty, had ever received an open carry permit.

To justify this, he claimed that an average person still can, or rather might, get one under the current scheme, but it was just that no one had ever shown a demonstrable case to be issued one. The judge didn’t like this answer.

“A typical law abiding citizen, which is the category we’re thinking about here, still has the right under the Second Amendment so long as the person is not a convicted felon or has some other disability. So when you say he didn’t make an appropriate showing, all he had to do, was it not, was to establish he did not fit into that prohibited class,” he said, implying the only Constitutional solution is that the Chief of Police MUST issue an open carry permit if a person is not otherwise prohibited (i.e. shall issue).

He concluded, “If the Second Amendment only extends to security guards, then there’s a real Constitutional problem here.”

To which the government’s attorney had to admit, “I suppose so.”

It didn’t stop there.

The government’s attorney made the argument that because this is a public safety issue, intermediate scrutiny should apply. When asked by the panel how the law was reasonably tailored to achieve public safety, he said it was a licensing scheme that gave allowances for specific exceptions for specific reasoning.

“So what do we do with the fact that there have been no permits issued? That doesn’t seem like reasonable tailoring, that seems like... no tailoring.”

“That seems like the sticky wicket here,” he again admitted.

He sunk his own argument. It was quite entertaining to watch, like a school boy being put on the spot by a teacher.

Even if this case goes our way, it likely won’t be over. But we can still enjoy victories when they happen.

Watch the video here https://youtu.be/podPuHnX698

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