George Young, Jr. v. State of Hawaii , 896 F.3d 1044 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE K. YOUNG, JR., No. 12-17808
Plaintiff-Appellant,
D.C. No.
v. 1:12-cv-00336-
HG-BMK
STATE OF HAWAII; NEIL
ABERCROMBIE, in his capacity as
Governor of the State of Hawaii; OPINION
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.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
2 YOUNG V. STATE OF HAWAII
Argued and Submitted February 12, 2018
Honolulu, Hawaii
Filed July 24, 2018
Before: Diarmuid F. O’Scannlain, Richard R. Clifton,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Clifton
YOUNG V. STATE OF HAWAII 3
SUMMARY *
Civil Rights
The panel reversed the district court’s dismissal of
claims brought against the County of Hawaii, dismissed
plaintiff’s appeal as to the State of Hawaii, and remanded, in
plaintiff’s 42 U.S.C. § 1983 action alleging that the denial of
his application for a handgun license violated his Second
Amendment right to carry a loaded firearm in public for self-
defense.
The County of Hawaii’s Chief of Police denied
plaintiff’s application to carry a handgun because he failed
to satisfy Hawaii’s licensing requirements, as set forth in
section 134-9 of the Hawaii Revised Statutes. Section 134-9
acts as a limited exception to the State of Hawaii’s “Place[s]
to Keep” statutes, which generally require that gun owners
keep their firearms at their “place of business, residence, or
sojourn.” H.R.S. §§ 134-23, 134-24, 134-25. The exception
allows citizens to obtain a license to carry a loaded handgun
in public, either concealed or openly, under certain
circumstances. Plaintiff alleged that the County violated the
Second Amendment by enforcing against him the State’s
limitations in section 134-9 on the open carry of firearms to
those “engaged in the protection of life and property” and on
the concealed carry of firearms to those who can
demonstrate an “exceptional case.”
The panel acknowledged that while the concealed carry
of firearms categorically falls outside Second Amendment
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 YOUNG V. STATE OF HAWAII
protection, see Peruta v. County of San Diego, 824 F.3d 919,
939 (2016) (en banc), it was satisfied that the Second
Amendment encompasses a right to carry a firearm openly
in public for self-defense. Analyzing the text of the Second
Amendment and reviewing the relevant history, including
founding-era treatises and nineteenth century case law, the
panel stated that it was unpersuaded by the County’s and the
State’s argument that the Second Amendment only has force
within the home. The panel stated that once identified as an
individual right focused on self-defense, the right to bear
arms must guarantee some right to self-defense in public.
The panel held that because Hawaii law restricted plaintiff
in exercising the right to carry a firearm openly, it burdened
conduct protected by the Second Amendment.
In determining the appropriate level of scrutiny to apply
to section 134-9, the panel first held that the right to carry a
firearm openly for self-defense falls within the core of the
Second Amendment. The panel stated that restricting open
carry to those whose job entails protecting life or property
necessarily restricts open carry to a small and insulated
subset of law-abiding citizens. The panel reasoned that the
typical, law-abiding citizen in the State of Hawaii was
entirely foreclosed from exercising the core Second
Amendment right to bear arms for self-defense. The panel
concluded that Hawaii’s limitation on the open carry of
firearms to those “engaged in the protection of life and
property” violated the core of the Second Amendment and
was void under any level of scrutiny.
Dissenting, Judge Clifton stated the majority opinion
disregarded the fact that states and territories in a variety of
regions have long allowed for extensive regulations of and
limitations on the public carry of firearms. Judge Clifton
wrote that such regulations are presumptively lawful under
YOUNG V. STATE OF HAWAII 5
District of Columbia v. Heller, 554 U.S. 570 (2008), and do
not undercut the core of the Second Amendment. In
addition, Judge Clifton stated that the majority opinion
misconceived the intermediate scrutiny test, assumed
without support in the record that Hawaii’s statute operates
as a complete ban, and substituted its own judgment about
the efficacy of less restrictive regulatory schemes.
COUNSEL
Alan A. Beck (argued), Law Offices of Alan Beck, San
Diego, California; Stephen D. Stamboulieh, Stamboulieh
Law PLL, Madison, Mississippi; for Plaintiff-Appellant.
D. Kaena Horowitz (argued), County of Hawaii Deputy
Corporation Counsel; Laureen L. Martin, County of Hawaii
Assistant Corporation Counsel; Office of the Corporation
Counsel, Hilo, Hawaii; for Defendants-Appellees County of
Hawaii, William P. Kenoi, and Harry S. Kubojiri.
Kimberly Tsumoto Guidry, First Deputy Solicitor General;
Robert Tadao Nakatsuji, Deputy Solicitor General;
Department of the Attorney General, Honolulu, Hawaii; for
Defendant-Appellee and Amicus Curiae State of Hawaii.
No appearance for Defendants-Appellees Neil Abercrombie
and David Mark Louie I.
6 YOUNG V. STATE OF HAWAII
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Second Amendment
encompasses the right of a responsible law-abiding citizen
to carry a firearm openly for self-defense outside of the
home.
I
A
George Young wishes to carry a firearm publicly for
personal self-defense in the State of Hawaii. He twice in
2011 applied for a license to carry a handgun, either
concealed or openly. His application was denied each time
by the County of Hawaii’s Chief of Police, Harry Kubojiri,
because Young failed to satisfy the requirements set forth in
section 134-9 of the Hawaii Revised Statutes (“H.R.S.”).
Section 134-9 acts as a limited exception to the State of
Hawaii’s “Place[s] to Keep” statutes, which generally
require that gun owners keep their firearms at their “place of
business, residence, or sojourn.” H.R.S. §§ 134-23, 134-24,
134-25. The exception allows citizens to obtain a license to
carry a loaded handgun in public, either concealed or openly,
under certain circumstances. H.R.S. § 134-9. Respecting
concealed carry, section 134-9 provides that “[i]n an
exceptional case, when an applicant shows reason to fear
injury to the applicant’s person or property, the chief of
police . . . may grant a license to an applicant . . . to carry a
pistol or revolver and ammunition therefor concealed on the
person.” The chief of police may, under section 134-9, grant
a license for the open carry of a loaded handgun only
“[w]here the urgency or the need has been sufficiently
YOUNG V. STATE OF HAWAII 7
indicated” and the applicant “is engaged in the protection of
life and property.” The County of Hawaii has promulgated
regulations to clarify that open carry is proper only when the
license-holder is “in the actual performance of his duties or
within the area of his assignment.” Police Dep’t of Cty. of
Haw., Rules and Regulations Governing the Issuance of
Licenses 10 (Oct. 22, 1997).
Absent a license under section 134-9, a person may only
transport an unloaded firearm, in an enclosed container, to
and from a place of repair, a target range, a licensed dealer,
a firearms exhibit, a hunting ground, or a police station,
H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27, and may
only use those firearms while “actually engaged” in hunting
or target shooting, H.R.S. § 134-5.
B
On June 12, 2012, Young filed this suit pro se under
42 U.S.C. § 1983 against the State of Hawaii, its then-
Governor, Neil Abercrombie, and its then-Attorney General,
David Louie (collectively “the State”), as well as the County
of Hawaii, its then-Mayor, William Kenoi, the Hilo County
Police Department, and its then-Chief of Police, Harry
Kubojiri (collectively “the County”). Primarily alleging that
denying his application for a handgun license violates his
Second Amendment right to carry a loaded firearm in public
for self-defense, Young requested, among other things,
injunctive and declaratory relief from the enforcement of
section 134-9’s licensing requirements.
The State filed a motion to dismiss Young’s claims under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and
the County filed a motion to dismiss the claims under Rule
12(b)(6). The district court granted both. As for the State of
Hawaii, the district court found Young’s action to be barred
8 YOUNG V. STATE OF HAWAII
by sovereign immunity. Young’s action against the State
officials—while not barred by sovereign immunity under Ex
Parte Young, 209 U.S. 123 (1908)—was dismissed because
the district court found their general oversight of the
enforcement of Hawaii’s laws “insufficient to establish a
nexus between [such] officials and the alleged violation of
[Young’s] civil rights.”
Dismissing Young’s action against the County on the
merits, the district court found that section 134-9 “does not
implicate activity protected by the Second Amendment,”
because that Amendment “establishes only a narrow
individual right to keep an operable handgun at home for
self-defense.” In the alternative, the district court indicated
that it would uphold section 134-9’s open and concealed
carry limitations under intermediate scrutiny. As the court
reasoned, the State’s “substantial interest in safeguarding the
public from the inherent dangers of firearms” was
reasonably furthered by policies that “enable[] officials to
effectively differentiate between individuals who need to
carry a gun for self-defense and those who do not.”
Young timely appealed. 1
1
Young filed a notice of appeal with respect to the dismissal of his
claims against both the State and County, but on appeal he makes no
arguments to contest the district court’s reasons for dismissing his claims
against the State. Believing itself no longer a party to the case, the State
has neither filed a response brief nor sought to participate in oral
argument. We thus do not review the district court’s judgment in its favor
and Young’s appeal against the State accordingly must be dismissed.
The State has, however, filed several briefs as amicus curiae. At oral
argument, the County explicitly endorsed the arguments of the State
YOUNG V. STATE OF HAWAII 9
II
A
Young’s argument is straightforward: he asserts that the
County has violated the Second Amendment by enforcing
against him the State’s limitations in section 134-9 on the
open carry of firearms to those “engaged in the protection of
life and property” 2 and on the concealed carry of firearms to
those who can demonstrate an “exceptional case.” 3
made as amicus curiae. Thus, when we refer to arguments made by the
State they are to be found in its amicus briefs as adopted by the County.
2
Young does not address the additional limitation in section 134-9
providing that an open carry license may only be granted “[w]here the
urgency or the need has been sufficiently indicated.” Nor could we
evaluate such a requirement at the motion to dismiss stage, absent
evidence showing the stringency of the requirement. Thus, we do not
decide whether such requirement violates the Second Amendment.
3
In the district court, Young also argued that section 134-9 violates
the Ninth Amendment, the Privileges or Immunities Clause, the Bill of
Attainder Clause, and the Contracts Clause. Young has abandoned such
claims on appeal.
But Young does raise several new arguments on appeal. He argues
that the State of Hawaii’s prohibitions on the possession of electric guns
(H.R.S. § 134-16), switchblades (H.R.S. § 134-52), and butterfly knives
(H.R.S. § 134-53) violate the Second Amendment. He also argues that
the prohibition on carrying rifles and shotguns publicly, arising out of
section 134-24, violates the Second Amendment. Because Young failed
properly to raise these arguments before the district court, we deem such
arguments forfeited. See United States v. Greger, 716 F.2d 1275, 1277
(9th Cir. 1983).
10 YOUNG V. STATE OF HAWAII
1
The County and the State respond that Young’s claim is
foreclosed by our en banc decision in Peruta v. County of
San Diego (Peruta II), 824 F.3d 919 (2016) (en banc), which
overturned a three-judge panel’s decision striking down a
concealed carry licensing regime, see Peruta v. County of
San Diego (Peruta I), 742 F.3d 1144 (9th Cir. 2014).
In Peruta II, we considered a challenge to San Diego’s
limitations on the concealed carry of handguns outside of the
home. 824 F.3d at 924. California law generally prohibits
carrying firearms in public, whether concealed or openly.
See Cal. Penal Code §§ 25400, 25850, 26350. But San Diego
County leaves open the opportunity to carry a concealed
firearm upon the demonstration of “good cause.” See Peruta
II, 824 F.3d at 926. Rejecting Peruta’s challenge, our en banc
court held that “the Second Amendment right to keep and
bear arms does not include, in any degree, the right of a
member of the general public to carry concealed firearms in
public.” Id. at 939 (emphasis added). But, as even the dissent
acknowledges, our court explicitly left unresolved the
question of whether the Second Amendment encompasses a
right to open carry. See id. (“There may or may not be a
Second Amendment right for a member of the general public
to carry a firearm openly in public. The Supreme Court has
not answered that question, and we do not answer it here.”).
Young’s claim therefore picks up where Peruta’s left off and
presents an issue of first impression for this circuit: whether
the Second Amendment encompasses a right to carry
firearms openly in public for self-defense.
YOUNG V. STATE OF HAWAII 11
2
Our interpretation of the Second Amendment is guided
by the Supreme Court’s decisions in District of Columbia v.
Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 561 U.S. 742 (2010). In Heller, the Court
invalidated a District of Columbia ban on handgun
possession in the home, holding that the Second Amendment
guarantees an individual right to keep a handgun in one’s
home for self-defense, and rejecting a collective view of the
right. See 554 U.S. at 635. Because the District of Columbia
law had completely banned “the quintessential self-defense
weapon” within the home, the Court saw no need to clarify
further the scope of the right or the level of scrutiny it
demands. See id. at 629. “Under any of the standards of
scrutiny that [the Court has] applied to enumerated
constitutional rights,” such a severe deprivation must fail. Id.at 628–29.
In McDonald, the Court incorporated the Second
Amendment against the States through the Fourteenth
Amendment, invalidating a Chicago law that effectively
banned handgun possession by residents of the city. 561 U.S.
at 750. In determining whether the pre-existing right
codified by the Second Amendment was “fundamental to
our scheme of ordered liberty,” the Court stressed the
centrality of self-defense: “Self-defense is a basic right,
recognized by many legal systems from ancient times to the
present day . . . .” Id. at 767. Consequently, the Court held it
“clear that this right is ‘deeply rooted in this Nation’s history
and tradition,’” thus binding the States alongside the federal
government. Id. at 768 (quoting Washington v. Glucksberg,
521 U.S. 702, 721 (1997)); see also id. at 805–06 (Thomas,
J., concurring in part and concurring in the judgment)
(agreeing that the Second Amendment is “fully applicable to
12 YOUNG V. STATE OF HAWAII
the States,” but via the Fourteenth Amendment’s Privileges
or Immunities Clause).
As was the case in Peruta II, we find ourselves
navigating waters uncharted by Heller and McDonald: the
degree to which the Second Amendment protects, or does
not protect, the carrying of firearms outside of the home.
B
Our circuit, like others, employs a two-step approach to
Second Amendment challenges. See Jackson v. City & Cty.
of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014); see also
United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010);
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
We first ask “whether the challenged law burdens conduct
protected by the Second Amendment.” Jackson, 746 F.3d at
960 (quoting United States v. Chovan, 735 F.3d 1127, 1136
(9th Cir. 2013)). If so, we must “apply an appropriate level
of scrutiny.” Id. And because Heller makes clear that
evaluating restrictions of Second Amendment rights under
rational basis review is inappropriate, see 554 U.S. at 628
n.27, any means-end scrutiny applied must be some form of
heightened scrutiny, such as intermediate or strict scrutiny.
Of course, we remain ever mindful not to treat the Second
Amendment any differently from other individual
constitutional rights. It is not “a second-class right,”
McDonald, 561 U.S. at 780, nor a “constitutional orphan,”
Silvester v. Becerra, No. 17-342, 2018 WL 943032, at *8
(U.S. Feb. 20, 2018) (Thomas, J., dissenting from denial of
certiorari).
Heller and McDonald set the goalposts for our inquiry,
which requires determining the scope of the Second
Amendment with respect to public carry. We must discern
the scope of the Amendment not as it appears to us now, but
YOUNG V. STATE OF HAWAII 13
“with the scope [it was] understood to have when the people
adopted [it].” Heller, 554 U.S. at 634–35. Our lodestars are
“text and history,” id. at 595, because they bear most
strongly on what the right was understood to mean, at the
time of enactment, to the public. Because “words and
phrases were used in their normal and ordinary as
distinguished from technical meaning,” id. at 576 (quoting
United States v. Sprague, 282 U.S. 716, 731 (1931)), our
approach is not just a textual one, but also a contextual one.
See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, at xxv (2012) (“Words don’t
have intrinsic meanings; the significance of an expression
depends on how the interpretive community alive at the time
of the text’s adoption understood those words.”). History and
convention, therefore, illuminate our understanding of the
text.
We are not the first circuit to grapple with how far, and
to what extent, the Second Amendment applies outside the
home. Two circuits, looking closely at the text and history of
the Amendment, have held that the Second Amendment
indeed protects a general right to carry firearms in public for
self-defense. See Wrenn v. District of Columbia, 864 F.3d
650, 665 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933,
936–37 (7th Cir. 2012). 4 Three others have simply assumed
the Second Amendment applies outside the home, without
4
The Illinois Supreme Court has agreed with the reasoning of Moore
and subsequently held that the Second Amendment applies outside the
home. See People v. Aguilar, 2 N.E.3d 321, 327 (Ill. 2013) (“[I]f Heller
means what it says, and ‘individual self-defense’ is indeed ‘the central
component’ of the second amendment right to keep and bear arms, then
it would make little sense to restrict that right to the home, as
‘confrontations are not limited to the home.’” (internal citations and
brackets omitted) (quoting Heller, 554 U.S. at 599 and Moore, 702 F.3d
at 935–36)).
14 YOUNG V. STATE OF HAWAII
delving into the historical nature of the right. See Woollard
v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Drake v.
Filko, 724 F.3d 426, 431 (3d Cir. 2013); Kachalsky v. Cty.
of Westchester, 701 F.3d 81, 89 (2d Cir. 2012).
III
A
We start, as we must, with the text. The Second
Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
Const. amend. II. It is apparent from the face of the text that
the Amendment protects the right not only to “keep” but also
to “bear” arms. The latter verb is central to Young’s
challenge.
Heller provides useful guidance. To “bear,” the Court
explained, means to “wear” or to “carry . . . upon the person
or in the clothing or in a pocket, for the purpose . . . of being
armed and ready for offensive or defense action in a case of
conflict with another person.” Heller, 554 U.S. at 584(quoting Muscarello v. United States, 524 U.S. 125, 143
(1998) (Ginsburg, J., dissenting)). And Heller explained that
“bear arms” did not solely refer to carrying a weapon as part
of a militia. Id. at 585. Rather, to “bear” an object means to
carry it, and “[w]hen used with ‘arms,’ . . . the term has a
meaning that refers to carrying for a particular purpose—
confrontation.” Id. at 584.
The prospect of confrontation is, of course, not limited
to one’s dwelling. See Wrenn, 864 F.3d at 657 (“After all,
the Amendment’s core lawful purpose is self-defense, and
the need for that might arise beyond as well as within the
home.” (internal quotations and citations omitted)); Moore,
YOUNG V. STATE OF HAWAII 15
702 F.3d at 941 (“[T]he interest in self-protection is as great
outside as inside the home.”). Thus, carrying firearms
outside the home fits comfortably within Heller’s definition
of “bear.”
Indeed, the fact that the Second Amendment protects
bearing as well as keeping arms implies some level of public
carry in case of confrontation. A right to “keep” arms, on its
own, necessarily implies a right to carry those arms to some
extent. For instance, in order to “keep” arms, one would have
to carry them home from the place of purchase and
occasionally move them from storage place to storage place.
Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.
2011) (holding that the right to possess firearms “implies a
corresponding right to acquire and maintain proficiency in
their use”). The addition of a separate right to “bear” arms,
beyond keeping them, should therefore protect something
more than mere carrying incidental to keeping arms. See
Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of America 271
(1880) (“[T]o bear arms implies something more than mere
keeping.”). Understanding “bear” to protect at least some
level of carrying in anticipation of conflict outside of the
home provides the necessary gap between “keep” and “bear”
to avoid rendering the latter guarantee as mere surplusage.
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)
(“[I]t cannot be presumed that any clause in the constitution
is intended to be without effect . . . .”).
Heller and McDonald suggest a similar understanding of
“bear.” Heller described the “inherent right of self-defense”
as “most acute” within the home, implying that the right
exists, perhaps less acutely, outside the home. 554 U.S. at16 YOUNG V. STATE OF HAWAII
628. 5 McDonald similarly described the right as “most
notabl[e]” within the home, implying the right exists,
perhaps less notably, outside the home. 561 U.S. at 780.
Heller also identified “laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings” as presumptively lawful. 554 U.S. at 626. Why
bother clarifying the definition of sensitive public places if
the Second Amendment did not apply, at all, to any public
place? 6
In short, the text of the Amendment, as interpreted by
Heller and McDonald, points toward the conclusion that
“bear” implies a right to carry firearms publicly for self-
defense. 7
B
We next consider the writings of “important founding-
era legal scholars” to discern the original public
5
The Delaware Supreme Court recently adopted this interpretation
of Heller’s “most acute” language. See Bridgeville Rifle & Pistol Club,
Ltd. v. Small, 176 A.3d 632, 651 n.100 (Del. 2017) (“[T]he Heller
Court’s statement that ‘the need for defense of self, family, and property’
is ‘most acute’ in the home suggests that the need must be less acute
elsewhere—but nonetheless present.” (quoting Heller, 554 U.S. at 628)
(internal citation omitted)).
6
The State’s amicus brief asks us to stretch this list of presumptively
lawful measures to allow all laws “preserving public safety.” This
argument borders on the absurd. Surely not all areas of the public are as
sensitive as schools or government buildings, nor is it, as the State
suggests, a “very small and reasonable step to view virtually the entire
public sphere as a ‘sensitive place.’”
7
Strangely, the dissent is content to reach a contrary conclusion and
effectively to limit the Second Amendment’s protections to within the
home without even bothering to grapple with the text of the Amendment.
YOUNG V. STATE OF HAWAII 17
understanding of the Second Amendment right, because, as
Heller explains, “[t]hat sort of inquiry is a critical tool of
constitutional interpretation.” 554 U.S. at 605; see also
Jackson, 746 F.3d at 960, 962–63.
Several legal treatises that were in wide circulation
throughout the founding era support our textual
understanding of “bear arms.” In an early American edition
of Blackstone’s Commentaries on the Laws of England—
indeed, the “most important” edition, as Heller points out,
see 554 U.S. at 594—St. George Tucker, a law professor at
the College of William & Mary and former influential
Antifederalist, insisted that the right to armed self-defense is
the “first law of nature” and that “the right of the people to
keep and bear arms” is the “true palladium of liberty.” 1 St.
George Tucker, Blackstone’s Commentaries: With Notes of
Reference to the Constitution and Laws of the Federal
Government of the United States; and of the Commonwealth
of Virginia app. n.D. at 300 (Phil., William Young Birch &
Abraham Small 1803); see also McDonald, 561 U.S. at 769(treating Tucker’s notes on Blackstone as heavily instructive
in interpreting the Second Amendment); Heller, 554 U.S. at
606 (same). And in advocating for the prerogative of the
Judiciary to strike down unconstitutional statutes, Tucker
wrote: “If, for example, congress were to pass a law
prohibiting any person from bearing arms, as a means of
preventing insurrections, the judicial courts, . . . would be
able to pronounce decidedly upon the constitutionality of
these means.” Tucker, supra, at 289; see also Michael P.
O’Shea, Modeling the Second Amendment Right to Carry
Arms (I): Judicial Tradition and the Scope of “Bearing
Arms” for Self-Defense, 61 Am. U. L. Rev. 585, 637–38
(2012). Indeed, as Tucker explained, “[i]n many parts of the
United States, a man no more thinks, of going out of his
house on any occasion, without his rifle or musket in his
18 YOUNG V. STATE OF HAWAII
hand, than a European fine gentleman without his sword by
his side.” Tucker, supra, vol. 5, app., n.B, at 19.
Blackstone himself espoused a similarly sacred view on
the right to bear arms for Englishmen, which was most
notably codified in the 1689 English Declaration of Rights
as the right of Protestants to “have Arms for their Defense
suitable to their Conditions and as allowed by Law.” Bill of
Rights 1689, 1 W. & M., c. 2 (Eng.); see also Alden v. Maine,
527 U.S. 706, 715 (1999) (noting that Blackstone’s works
“constituted the preeminent authority on English law for the
founding generation”). As Blackstone explained, the 1689
Declaration enshrined “the natural right of resistance and
self-preservation” and “the right of having and using arms
for self-preservation and defence.” 1 William Blackstone,
Commentaries *144. 8 It followed from Blackstone’s
premise that such a right, the predecessor to our Second
Amendment, “was by the time of the founding understood to
be an individual right protecting against both public and
private violence.” Heller, 554 U.S. at 594 (emphasis added);
see also 2 William Blackstone, Commentaries on the Laws
of England 441 (Edward Christian ed., 1795) (“[E]veryone
8
Blackstone was far from alone in viewing the right to self-defense
as a natural right, thus “belong[ing] to [all] persons merely in a state of
nature, and which every man is intitled to enjoy whether out of society
or in it.” 1 WILLIAM BLACKSTONE, COMMENTARIES *119. Quite a few
scholars and commentators of that era on either side of the Atlantic
likewise championed a natural right to defend oneself. See Leonard W.
Levy, Origins of the Bill of Rights 140–41 (2001) (referencing a 1768
article in the prominent colonial newspaper A Journal of the Times that
described the English right as “a natural right which the people have
reserved to themselves, confirmed by the Bill of Rights, to keep arms for
their own defence”); see also David B. Kopel, The Natural Right of Self-
Defense: Heller’s Lesson for the World, 59 Syracuse L. Rev. 235, 242
(2008) (“The Anglo-Americans learned the language of natural rights,
including the natural right of self-defense . . . .”).
YOUNG V. STATE OF HAWAII 19
is at liberty to keep or carry a gun, if he does not use it for
the [unlawful] destruction of game.”).
C
Following Heller’s historical imperative, we next move
to nineteenth century judicial interpretations of the right to
bear arms, whether as part of the Second Amendment or
analogous state constitutional provisions. See 554 U.S. at
605 (“We now address how the Second Amendment was
interpreted from immediately after its ratification through
the end of the 19th century.”). As we will soon discover,
many of the same nineteenth century cases marshalled in
Heller to prove that the Second Amendment secures an
individual right to self-defense reveal just as persuasively
that the Second Amendment must encompass a right to carry
a firearm openly outside the home.
1
We begin with Bliss v. Commonwealth, 12 Ky. (2 Litt.)
90 (1822), cited in Heller, 554 U.S. at 585 n. 9, a decision
“especially significant both because it is nearest in time to
the founding era and because the state court assumed (just as
[Heller] does) that the constitutional provision at issue
codified a preexisting right.” Nelson Lund, The Second
Amendment, Heller, and Originalist Jurisprudence,
56 UCLA L. Rev. 1343, 1360 (2009). Interpreting
Kentucky’s Second Amendment analogue—providing that
“the right of the citizens to bear arms in defense of
themselves and the state, shall not be questioned”—the
state’s highest court had no doubt that any law restricting the
public carry of firearms would “import a restraint on the
right of the citizens to bear arms.” Bliss, 12 Ky. at 90–92.
The court then invalidated a restriction on the concealed
carry of weapons, despite the availability of open carry,
20 YOUNG V. STATE OF HAWAII
reasoning that “whatever restrains the full and complete
exercise of [the right to bear arms], though not an entire
destruction of it, is forbidden by the explicit language of the
constitution.” See id. The Bliss court’s strict approach to
restraints on the concealed carry of firearms was an outlier
in the Nineteenth Century, see Peruta II, 824 F.3d at 935–
36, and Kentucky did later amend its constitution to allow
the legislature to “pass laws to prevent persons from carrying
concealed arms,” Ky. Const. art. XIII, § 25. Nonetheless, the
Kentucky constitutional convention left untouched the
premise in Bliss that the right to bear arms protects open
carry.
In Tennessee, the state’s highest court offered its
interpretation of the right to bear arms eleven years after
Bliss. See Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833),
cited in Heller, 554 U.S. at 585 n.9. After he was convicted
of disturbing the peace by appearing armed in public,
Simpson faulted the indictment for failing clearly to require
proof of actual violence. Id. at 357–58. The high court
agreed, because—even assuming that colonial law did not
require proof of actual violence to punish colonists for
walking with weapons—the Tennessee “constitution ha[d]
completely abrogated it.” Id. at 360. No such prohibition
could survive the state constitution’s grant of “an express
power . . . secured to all the free citizens of the state to keep
and bear arms for their defence, without any qualification
whatever as to their kind or nature.” Id. Absent an act of
violence, then, Simpson’s indictment for merely carrying
firearms could allege no crime tolerable to the constitution
of Tennessee. See id. at 360–62.
The Alabama Supreme Court joined the chorus seven
years later. See State v. Reid, 1 Ala. 612 (1840), cited in
Heller, 554 U.S. at 629. Interpreting the Alabama “right to
YOUNG V. STATE OF HAWAII 21
bear arms, in defense of []self and the State,” the high court
declared that an Alabamian must be permitted some means
of carrying a weapon in public for self-defense. Id. at 615–
16. The court ultimately upheld a restriction on “the evil
practice of carrying weapons secretly,” citing the
legislature’s power “to enact laws in regard to the manner in
which arms shall be borne. . . . as may be dictated by the
safety of the people and the advancement of public morals.”
Id. at 616. But the court made clear where that power of the
legislature ran dry:
We do not desire to be understood as
maintaining, that in regulating the manner of
bearing arms, the authority of the Legislature
has no other limit than its own discretion. A
statute which, under the pretence of
regulating, amounts to a destruction of the
right, or which requires arms to be so borne
as to render them wholly useless for the
purpose of defence, would be clearly
unconstitutional.
See id. at 616–17.
The Georgia Supreme Court embraced precisely that
position six years later, making explicit what Reid intimated.
See Nunn v. State, 1 Ga. 243 (1846), cited in Heller, 554 U.S.
at 612, 626, 629. There, the Georgia high court considered a
Second Amendment challenge to a statute creating a
misdemeanor for carrying a pistol, either openly or
concealed. Id. at 246. Starting off with a clear statement of
the constitutional guarantee, the court explained: “The right
of the whole people, old and young, men, women and boys,
and not militia only, to keep and bear arms of every
description, and not such merely as are used by the militia,
22 YOUNG V. STATE OF HAWAII
shall not be infringed, curtailed, or broken in upon, in the
smallest degree . . . .” Id. at 251 (emphasis omitted). And
with those Second Amendment lines properly set, the court
held that Georgia’s statute went too far:
We are of the opinion, then, that so far as the
act of 1837 seeks to suppress the practice of
carrying certain weapons secretly, that it is
valid, inasmuch as it does not deprive the
citizen of his natural right of self-defence, or
of his constitutional right to keep and bear
arms. But that so much of it, as contains a
prohibition against bearing arms openly, is
in conflict with the Constitution, and void . . .
Id. (emphasis added). Critically, we must afford Nunn’s
understanding of the Second Amendment a good deal of
weight, because, as Heller explains, “[i]ts opinion perfectly
captured the way in which the operative clause of the Second
Amendment furthers the purpose announced in the prefatory
clause.” 554 U.S. at 612; see also O’Shea, supra, at 627 (“No
case, historic or recent, is discussed more prominently or
positively in Heller than the Georgia Supreme Court’s 1846
decision in Nunn v. State.”).
The Louisiana Supreme Court soon followed the course
set by Alabama and Georgia. See State v. Chandler, 5 La.
Ann. 489 (1850), cited in Heller, 554 U.S. at 613, 626. The
high court first rejected Chandler’s Second Amendment
challenge to a Louisiana law prohibiting concealed carry,
reasoning that the law was “absolutely necessary to
counteract a vicious state of society, growing out of the habit
of carrying concealed weapons, and to prevent bloodshed
and assassinations committed upon unsuspecting persons.”
Id. at 489–90. But, in precisely the same manner as the Nunn
YOUNG V. STATE OF HAWAII 23
and Reid courts, the Chandler court drew the line which the
legislature could not cross. As the court explained: “[The
prohibition on concealed carry] interfered with no man’s
right to carry arms . . . ‘in full open view,’ which places men
upon an equality. This is the right guaranteed by the
Constitution of the United States . . . .” Id. at 490; see also
Heller, 554 U.S. at 613 (citing favorably Chandler’s holding
that “citizens had a right to carry arms openly”).
Thus, each of these nineteenth century cases found
instructive by Heller when settling the Second Amendment
as an individual right to self-defense is just as instructive
when evaluating the application of that right outside the
home. While nineteenth century legislatures enjoyed latitude
to regulate the “manner in which arms shall be borne,” no
legislature in these states could, “under the pretence of
regulating,” destroy the right to carry firearms in public
altogether. See Reid, 1 Ala. at 616–17. Accordingly, even
though our court has read these cases to exclude concealed
carry from the Second Amendment’s protections, see Peruta
II, 824 F.3d at 933–36, the same cases command that the
Second Amendment must encompass a right to open carry. 9
9
The dissent faults our reliance on decisions from the South,
implying that the thorough analysis found in such opinions must have
been the product of a “culture where slavery, honor, violence, and the
public carrying of weapons were intertwined.” Dissent at 6 (citations and
quotations omitted). To say the least, we are puzzled. The dissent
overlooks the fact that the Southern cases on which we rely only arose
because the legislatures in those states had enacted restrictions on the
public carry of firearms. Indeed, were it the case that the Southern culture
of slavery animated concerns to protect the right to open carry, why
would the Georgia legislature have sought to ban open carry in the first
place?
24 YOUNG V. STATE OF HAWAII
2
We are well aware that there were judicial proponents of
a more limited right to bear arms during the nineteenth
century.
Most prominent is the Arkansas Supreme Court’s 1842
interpretation of the right in State v. Buzzard, 4 Ark. 18(1842). There, a divided court upheld an Arkansas
prohibition on the concealed carry of “any pistol, dirk,
butcher or large knife, or a sword in a cane,” but each judge
in the splintered majority appeared poised to go much
further. Chief Justice Ringo advocated his view that the
Second Amendment served as no bar to the Arkansas
legislature’s authority to restrict any carrying of firearms:
“[N]o enactment on this subject, which neither directly nor
indirectly so operates as to impair or render inefficient the
means provided by the Constitution for the defense of the
State, can be adjudged invalid on the ground that it is
repugnant to the Constitution.” Id. at 27. But Justice
Dickinson went even further, writing that the Second
Amendment was nothing “but an assertion of that general
right of sovereignty belonging to independent nations to
regulate their military force,” thus finding no individual right
within its guarantee. Id. at 32; but see id. at 34–35 (Lacy, J.,
dissenting) (viewing the Second Amendment as an
individual right to self-defense).
As a more fundamental matter, too, we cannot agree with the
dissent’s choice to cast aside Southern cases. Heller placed great
emphasis on cases from the South, and Nunn in particular. We are an
inferior court. Can we really, while keeping a straight face, now say that
such cases have little persuasive effect in analyzing the contours of the
Second Amendment? We think not.
YOUNG V. STATE OF HAWAII 25
Several nineteenth century courts hewed to Buzzard’s
approach and upheld restrictions on the public carry of
weapons without emphasizing, as did courts in Nunn’s camp,
the limits of legislative authority. See Hill v. State, 53 Ga.
472, 474–75 (1874) (upholding prohibition on carrying
weapons “to any court of justice . . . or any place of public
worship, or any other public gathering . . . except militia
muster grounds”); English v. State, 35 Tex. 473, 474 (1871)
(upholding prohibition on carrying “pistols, dirks, daggers,
slungshots, swordcanes, spears, brass-knuckles and bowie
knives”); State v. Workman, 14 S.E. 9, 10–12 (W. Va. 1891)
(upholding presumption of criminality “when a man is found
going around with a revolver, razor, billy, or brass knuckles
upon his person”).
Yet, with Heller on the books, cases in Buzzard’s flock
furnish us with little instructive value. That’s because Heller
made clear that the Second Amendment is, and always has
been, an individual right centered on self-defense; it has
never been a right only to be exercised in connection with a
militia. See, e.g., 554 U.S. at 592, 599, 616, 628. And bound
as the inferior court that we are, we may only assess whether
the right to bear arms extends outside the home on the
understanding that the right is an individual one centered on
self-defense. Thus, Heller knocks out the load-bearing
bricks in the foundation of cases like Buzzard, for those
courts only approved broad limitations on the public carry of
weapons because such limitations in no way detracted from
the common defense of the state. See, e.g., Buzzard, 4 Ark.
at 27 (opinion of Ringo, C.J.) (“The act in question does not,
in my judgment, detract anything from the power of the
people to defend their free state and the established
institutions of the country.”); Hill, 53 Ga. at 475 (“In what
manner the right to keep and bear these pests of society
[dirks, bowie knives, and the like], can encourage or secure
26 YOUNG V. STATE OF HAWAII
the existence of a militia, and especially of a well regulated
militia, I am not able to divine.”); English, 35 Tex. at 477
(“The terms dirks, daggers, slungshots, sword-canes, brass-
knuckles and bowie knives, belong to no military
vocabulary.”); Workman, 14 S.E. at 11 (“So, also, in regard
to the kind of arms referred to in the amendment, it must be
held to refer to the weapons of warfare to be used by the
militia . . . .”); see also Wrenn, 864 F.3d at 658 (reasoning
that such cases are “sapped of authority by Heller”); Moore,
702 F.3d at 941 (regarding “the historical issues as settled by
Heller”); O’Shea, supra, at 653 (same). 10
3
Once we set aside each of those cases that rest on a
militia-focused view of the right to bear arms, we find only
two cases from the nineteenth century that might be read to
allow severe deprivations on open carry.
10
Not all cases with views of the Second Amendment contrary to
Heller took the Buzzard approach, however. Several of such cases
protected the right to bear arms in a way that supports, or is at least
consistent with, the right to open carry. See Andrews v. State, 50 Tenn.
(3 Heisk.) 165, 186–87 (1871) (holding that, if a pistol “is adapted to the
usual equipment of the soldier,” then a statute that “forbids by its terms
the carrying of the weapon publicly or privately, without regard to time
or place, or circumstances . . . violates the constitutional right to keep
arms.”); Aymette v. State, 21 Tenn. (2 Hum.) 154, 160 (1840) (“In the
nature of things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the State at all.”); Cockrum v. State,
24 Tex. 394, 401–03 (1859) (construing the Second Amendment purely
as a tyranny-deterring measure, but nevertheless barring the complete
prohibition of carrying a bowie-knife, “an exceeding[ly] destructive
weapon”).
YOUNG V. STATE OF HAWAII 27
The first, State v. Duke, is an 1874 decision from the
Supreme Court of Texas, where the court concluded that the
legislature could confine the carry of firearms to certain
places, and only when the bearer had reasonable grounds to
fear an attack. 42 Tex. 455, 456–59 (1874). Why the
departure from the Nunn line of cases? One need only take a
peek at the Texas constitutional provision that served as the
basis for the court’s decision, which provided that “[e]very
person shall have the right to keep and bear arms in the
lawful defense of himself or the State, under such
regulations as the Legislature may prescribe.” See id. at 458(emphasis added). While the Second Amendment surely
tolerates some degree of regulation, its very substance is not
so explicitly limited by such a regulatory caveat. We
shouldn’t pencil one in. 11
The second case, Walburn v. Territory, is a decision from
the Supreme Court of the Territory of Oklahoma, coming at
the very end of the nineteenth century in 1899. 59 P. 972(Okla. Terr. 1899) (Mem). Convicted of carrying a revolver
on his person, Walburn challenged his conviction on several
grounds, one of which being an argument that Oklahoma’s
carrying prohibition was “in conflict with the constitution of
the United States.” Id. at 973. Beyond such a general
assertion, however, “[n]o authorities [were] cited in support
of this position, nor [was] the proposition very earnestly
urged.” Id. Accordingly, the court rejected the challenge:
“As at present advised, we are of the opinion that the statute
11
But “even Duke, an outlier which marks perhaps the most
restrictive interpretation that any nineteenth-century court gave to the
defense-based right to bear arms, implicitly rejected no-carry laws as
unconstitutional” when it reasoned that the Texas law “respected the
right to carry a pistol openly when needed for self-defense.” O’Shea,
supra, at 655 (quoting Duke, 42 Tex. at 459).
28 YOUNG V. STATE OF HAWAII
violates none of the inhibitions of the constitution of the
United States, and that its provisions are within the police
power of the territory.” Id. (emphasis added). We see little
reason to credit much a decision that explicitly
acknowledged a lack of due consideration. Cf. Heller,
554 U.S. at 623–24 (rejecting dissent’s reliance on United
States v. Miller, 307 U.S. 174 (1939), in part because of the
incomplete briefing in Miller and its lack of a thorough
consideration of the history of the Second Amendment).
D
Finally, as did the Court in Heller, we turn to the
legislative scene following the Civil War. See 554 U.S. at614–16. While considering materials that post-date the Bill
of Rights by at least 75 years might stretch the term “original
public meaning,” Heller explains that, “[i]n the aftermath of
the Civil War, there was an outpouring of discussion of the
Second Amendment in Congress and in public discourse, as
people debated whether and how to secure constitutional
rights for newly free slaves.” Id. at 614. So, although such
evidence “do[es] not provide as much insight into [the
Second Amendment’s] original meaning as earlier sources,”
we nevertheless consider such evidence somewhat
instructive on its meaning. 12 See id.12
This evidence is not more probative when applying the right to
state and local governments. While McDonald relied extensively on
history from the post–Civil War period when deciding whether the right
to bear arms is “among those fundamental rights necessary to our system
of ordered liberty,” thus incorporating it against the States, 561 U.S. at770–78, McDonald also made clear that the substantive restrictions the
right imposes on states are precisely the same as those imposed on the
federal government, id. at 785–86; id. at 805 (Thomas, J., concurring in
part and concurring in the judgment) (agreeing that “the right to keep and
YOUNG V. STATE OF HAWAII 29
Particularly relevant in this period are the efforts of many
Southern states to disarm free blacks after the Civil War by
adopting Black Codes, because “[t]hose who opposed these
injustices frequently stated that they infringed blacks’
constitutional right to keep and bear arms.” Heller, 554 U.S.
at 614–16; see also Clayton E. Cramer, The Racist Roots of
Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (1995) (“The
various Black Codes adopted after the Civil War required
blacks to obtain a license before carrying or possessing
firearms or bowie knives . . . . These restrictive gun laws
played a part in provoking Republican efforts to get the
Fourteenth Amendment passed.”).
The Supreme Court’s infamous decision in Dred Scott v.
Sanford, 60 U.S. 393 (1857), rendered four years before the
first shots were fired at Fort Sumter, would pave the way for
such Black Codes to proliferate after the war. See
McDonald, 561 U.S. at 807–08, 822, 849 (Thomas, J.,
concurring in part and concurring in the judgment) (looking
to Dred Scott as necessary context in Civil War era historical
analysis). Writing for the Court, Chief Justice Taney—
disgracefully—dismissed Dred Scott’s suit for freedom after
concluding that blacks had never been a part of the sovereign
“people” of the United States and therefore could find no
recourse in an Article III court. See 60 U.S. at 407. To hold
otherwise, Chief Justice Taney wrote, would have “entitled
[blacks] to the privileges and immunities of citizens” and
thus granted them the rights he felt only whites could enjoy:
bear arms set forth in the Second Amendment [is] ‘fully applicable to the
States’” (emphasis added)). Because Heller ascribed less weight to
evidence from the post-Civil War period when interpreting the Second
Amendment’s restrictions on the federal government, 554 U.S. at 614, it
necessarily follows that the evidence is less probative when interpreting
the Amendment’s restrictions on state and local governments.
30 YOUNG V. STATE OF HAWAII
“[I]t would give them the full liberty of speech in public and
in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs,
and to keep and carry arms wherever they went.” Id. at 416–
17.
Perhaps emboldened by Chief Justice Taney’s opinion,
“those who sought to retain the institution of slavery . . .
[began] to eliminate more and more of the basic liberties of
slaves, free blacks, and white abolitionists.” See McDonald,
561 U.S. at 843–44 (Thomas, J., concurring in part and
concurring in the judgment). And the pervasive fear of slave
rebellions “led Southern legislatures to take particularly
vicious aim at the rights of free blacks and slaves to speak or
to keep and bear arms for their defense.” Id. at 845; see also
Act of Dec. 23, 1833, § 7, 1833 Ga. Acts 226, 228 (“[I]t shall
not be lawful for any free person of colour in this state, to
own, use, or carry fire arms of any description whatever.”).
The subsequent Civil War was far from a perfect fix to
these problems. Those freedmen who had fought for the
Union Army during the war frequently returned home “to the
States of the old Confederacy, where systematic efforts were
made to disarm them and other blacks.” McDonald, 561 U.S.
at 771; see also The Freedmen’s Bureau Bill, N.Y. Evening
Post, May 30, 1866, at 2 (“In South Carolina and Florida the
freedmen are forbidden to wear or keep arms.”). Emblematic
of these efforts was an 1865 law in Mississippi that declared
“no freedman, free negro or mulatto . . . shall keep or carry
fire-arms of any kind, or any ammunition, dirk or bowie
knife.” McDonald, 561 U.S. at 771 (quoting Certain
Offenses of Freedmen, 1865 Miss. Laws p. 165, § 1, in
1 Documentary History of Reconstruction 289 (W. Fleming
ed. 1950)). The law was vigorously enforced. As an 1866
letter from Rodney, Mississippi to the Harper’s Weekly
YOUNG V. STATE OF HAWAII 31
magazine lamented, “[t]he militia of this county have seized
every gun and pistol found in the hands of the (so called)
freedmen. . . . They claim that the statute laws of Mississippi
do not recognize the negro as having any right to carry
arms.” The Labor Question at the South, Harper’s Weekly,
Jan. 13, 1866, at 19. Seeking help from outside of the state,
the letter emphasized that such Mississippi laws did “not
protect, but insist[ed] upon infringing on their liberties.” Id.
Worse still, “[w]ithout federal enforcement of the
inalienable right to keep and bear arms, . . . militias and
mobs were tragically successful in waging a campaign of
terror against [newly free slaves].” McDonald, 561 U.S. at
856 (Thomas, J., concurring in part and concurring in the
judgment).
Such blatant injustices did not continue unnoticed by
Congress, which established the Freedmen’s Bureau to aid
newly freed blacks still suffering in the Reconstruction
South. Working to fulfill its mandate, an 1866 report by the
Bureau targeted a Kentucky law that sought to deprive
freedmen of their Second Amendment rights: “[T]he civil
law [of Kentucky] prohibits the colored man from bearing
arms . . . . Their arms are taken from them by the civil
authorities . . . . Thus, the right of the people to keep and bear
arms as provided in the Constitution is infringed.” Heller,
554 U.S. at 614–15 (quoting H.R. Exec. Doc. No. 70, 39th
Cong., 1st Sess., 233, 236). But Kentucky was far from the
only state subject to scrutiny; a joint congressional report
decried a South Carolina practice of “seizing all fire-arms
found in the hands of the freedmen.” Id. at 615 (quoting Joint
Comm. on Reconstruction, H.R. Rep. No. 30, 39th Cong.,
1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier
General R. Saxton)). The joint report plainly envisioned a
right to bear arms outside the home, emphasizing that
32 YOUNG V. STATE OF HAWAII
freedmen in South Carolina “need [firearms] to kill game for
subsistence.” Id.Indeed, even those congressmen who opposed federal
action to protect the rights of freedmen understood the
fundamental constitutional rights at stake. Senator Davis of
Kentucky acknowledged, alongside the writ of habeas
corpus, the right “for every man bearing his arms about him
and keeping them in his house, his castle, for his own
defense,” but argued that congressional action on the matter
would usurp the role of Kentucky in caring for its citizens.
See Cong. Globe, 39th Cong., 1st Sess. 370–71 (1866)
(emphasis added), cited in Heller, 554 U.S. at 616.
To summarize the history canvassed thus far: the
important founding-era treatises, the probative nineteenth
century case law, and the post-civil war legislative scene
each reveal a single American voice. The right to bear arms
must include, at the least, the right to carry a firearm openly
for self-defense.
E
But wait! The dissent says we have yet to consider the
impact of historical “good cause” restrictions on the scope
of the Second Amendment right to carry a firearm in public.
According to the dissent, many states heavily restricted the
public carry of weapons absent good cause to fear injury to
person or property. Dissent at 65–67. A review of the
dissent’s evidence compels us to disagree.
Many states during the nineteenth century required
people who carried weapons in a disruptive fashion to post a
bond (or a “surety”) to ensure their good behavior. See, e.g.,
The Revised Statutes of the Commonwealth of Massachusetts
750 § 16 (Boston, Theron Metcalf & Horace Mann 1836)
YOUNG V. STATE OF HAWAII 33
(hereinafter Mass. Acts). And to enforce the surety
requirement, such states commonly relied on a citizen-
complaint mechanism. That is, if an arms carrier gave any
observer “reasonable cause to fear an injury, or breach of the
peace,” the observer could complain to his local magistrate,
who might then require the disruptive carrier “to find
sureties for keeping the peace,” generally “for a term not
exceeding six months.” See id. But if the disruptive carrier
also had “reasonable cause to fear an assault or other injury,”
such person could be excused from posting sureties despite
the complaint. Id. As an example of the pieces put together,
Michigan’s 1846 surety law provided that if any person went
armed with an “offensive and dangerous weapon, without
reasonable cause to fear an assault or other injury . . . he may,
on complaint of any person having reasonable cause to fear
an injury or breach of the peace, be required to find sureties
for keeping the peace.” The Revised Statutes of the State of
Michigan 692 § 16 (Detroit, Sanford M. Green 1846).
The dissent erroneously characterizes surety laws as
imposing a severe restriction on the public carry of weapons
absent good cause to fear injury. And its analysis of the
actual historical evidence is, in a word, cursory. While the
dissent focuses on the exception to the surety requirement
for carriers with a specialized need for self-defense, it
ignores the clearly limited scope of the requirement in the
first place: only upon a well-founded complaint that the
carrier threatened “injury or a breach of the peace” did the
good cause exception come into play, “by exempting even
the accused” from the burden of paying sureties. Wrenn,
864 F.3d at 661. Thus, “[a] showing of special need did not
expand carrying for the responsible; it shrank burdens on
carrying by the (allegedly) reckless.” Id.
34 YOUNG V. STATE OF HAWAII
Indeed, what is most troubling about the dissent’s
historical “analysis” is that it reliably quotes the good cause
exception to the surety requirements but hardly mentions the
limiting citizen-complaint mechanism present in virtually
every single one of its quoted sources. See The Statutes of
Oregon 220 § 17 (Oregon, Asahel Bush 1854) (complainant
must possess “reasonable cause to fear an injury, or breach
of the peace”); The Revised Statutes of the Territory of
Minnesota 528 § 18 (Saint Paul, James M. Goodhue 1851)
(complainant must possess “reasonable cause to fear an
injury or breach of the peace”); The Revised Statutes of the
State of Maine 709 § 16 (Hallowell, Glazier, Masters &
Smith 1847) (complainant must possess “cause to fear an
injury or breach of the peace”); Statutes of the Territory of
Wisconsin 381 § 16 (Albany, Packard, Van Benthuysen &
Co. 1839) (complainant must possess “reasonable cause to
fear an injury or breach of the peace”); 1836 Mass. Acts 750§ 16 (complainant must possess “reasonable cause to fear an
injury, or breach of the peace”). The dissent might wish to
set aside the requirements to complain under surety laws, but
we suspect those who actually did complain under such laws
would hesitate before treating the requirements so lightly.
Were a complainant to bring an “unfounded, frivolous or
malicious” claim that an arms carrier threatened the public
peace, the magistrate would not only dismiss the complaint,
but also hold the complainant “answerable to the magistrate
and the officer for their fees.” See, e.g., 1836 Mass. Acts 749§ 7. 13
13
Only one of the surety laws cited by the dissent lacks explicit
reference to the citizen-complaint mechanism. An 1847 Virginia law
provided that if any person went armed with “any offensive or dangerous
weapon, without reasonable cause to fear an assault or other injury . . .
he may be required to find sureties for keeping the peace.” Acts of the
YOUNG V. STATE OF HAWAII 35
In any event, even if all arms carriers without good cause
had to post sureties (they did not), the laws would not add
much to our analysis. Heller saw little weight in historical
prohibitions that promised only “a small fine and forfeiture
of the weapon (or in a few cases a very brief stay in the local
jail).” 554 U.S. at 633. Certainly, an obligation to post a
surety fits that mold. Like a small fine, sureties are “‘akin to
modern penalties for minor public-safety infractions like
speeding or jaywalking,’ which makes them (in the Court’s
view) poor evidence of limits on the [Second] Amendment’s
scope.” Wrenn, 864 F.3d at 661 (quoting Heller, 554 U.S. at633–34). In fact, sureties seem to us even less noteworthy
than small fines, since a disruptive carrier—once he posted
a surety—“could go on carrying without criminal penalty.”
Id. And if he refrained from breaching the peace, of course,
his money posted as a surety would be returned in a matter
of months.
All in all, we are unmoved by the dissent’s misguided
interpretation of history. While surety laws used the
language “reasonable cause,” they bear no resemblance to
modern-day good cause requirements to carry a firearm. 14
General Assembly of Virginia 129 § 16 (Richmond, Samuel Shepherd
1848). But the Virginia law doesn’t tell us much about the right of
Virginians to carry weapons in public, since it only provided that the
arms carrier “may” be required to find sureties, with no clarification.
What we do know, however, is that “may” certainly does not mean
“shall,” neither today nor in 1847.
14
Nor are we much persuaded by the remainder of the dissent’s
historical evidence. Dissent at 10–12. The dissent is correct, of course,
that near the close of the nineteenth century and the beginning of the
twentieth century some states began enacting stricter limitations on the
public carry of weapons. See, e.g., 1888 Idaho Sess. Laws 23 (prohibiting
public carry of weapons within the “confines of any city, town or
36 YOUNG V. STATE OF HAWAII
F
One more historical misconception to dispel.
The County and the State, apparently seeing little room
to quarrel with American history, argue that the English right
to carry weapons openly was limited for centuries by the
1328 Statute of Northampton, and that we should
incorporate wholesale that understanding of English rights
into our Constitution’s Second Amendment. Exploring
fourteenth century English law books (after a thorough
dusting) reveals that the statute allowed no ordinary
Englishman to “bring . . . force in affray of the peace, nor to
go nor ride armed by night nor by day, in Fairs, Markets, nor
in the presence of the Justices or other Ministers, nor in no
part elsewhere.” Statute of Northampton 1328, 2 Edw. 3, c.
3 (Eng.). 15 But the statute’s effects did not remain in the
fourteenth century, as it “would become the foundation for
firearms regulation in England for the next several
centuries.” Peruta II, 824 F.3d at 930. Our court has
village”). But it is difficult to ascribe much weight to isolated statutes,
with no record of enforcement, that were enacted so distant from the
founding. Cf. Heller, 554 U.S. at 632 (“[W]e would not stake our
interpretation of the Second Amendment upon a single law . . . that
contradicts the overwhelming weight of other evidence . . . .”). And we
are particularly reluctant to rely on such statutes given that it is
impossible to discern whether they were enacted with a militia or a self-
defense oriented view of the right to bear arms in mind. See O’Shea,
supra, at 642–43 (noting the popularity of a “hybrid view” of the Second
Amendment during the post-Civil War period, where the right was
individual but “the chief function of the right . . . was to support civic
purposes such as military readiness”).
15
An “affray,” derived from the French word “effraier” meaning “to
terrify,” is an act that disturbs the peace. See 1 William Hawkins, A
Treatise of the Pleas of the Crown 136, ch. 63, § 1 (1716).
YOUNG V. STATE OF HAWAII 37
interpreted the statute and its enforcement history as
consistently prohibiting concealed carry, see id. at 932, but
we have not until now considered whether it also prohibited
open carry.
1
As one would expect, delineating the precise lines within
which a fourteenth century English statute was enforced is a
difficult task. See, e.g., See Patrick J. Charles, The Faces of
the Second Amendment Outside the Home: History Versus
Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 12
(2012). In the immediate period after Parliament enacted the
statute, it appears that some English constables were ordered
to enforce the statute literally and to arrest all those who
dared to “go armed,” without regard for the bearer’s apparent
peacefulness. See Letter to the Mayor and Bailiffs of York
(Jan. 30, 1334), in Calendar of the Close Rolls, Edward III,
1333–1337 294 (H.C. Maxwell-Lyte ed. 1898). But not all
English constables faced similar orders; for example,
Northumberland officers were ordered in 1332 to arrest only
“persons riding or going armed to disturb the peace.” Letter
to the Keeper and Justices of Northumberland (Oct. 28,
1332), in Calendar of the Close Rolls, Edward III, 1330–
1333 610 (H.C. Maxwell-Lyte ed. 1898) (emphasis added).
Nevertheless, looking only to Chaucer’s fourteenth
century England provides little instructive force, particularly
because “[c]ommon-law rights developed over time.” See
Wrenn, 864 F.3d at 660. And over the next few centuries, a
narrow interpretation of the statute—like that given to
Northumberland constables in 1332—began to dominate the
English legal landscape. Writing almost 300 years after the
statute was enacted, Serjeant William Hawkins, an English
legal commentator praised by Blackstone, explained that “no
wearing of Arms is within the meaning of this Statute, unless
38 YOUNG V. STATE OF HAWAII
it be accompanied with such Circumstances as are apt to
terrify the People; from whence it seems clearly to follow,
That Persons of Quality are in no Danger of Offending
against this Statute by wearing common Weapons.”
1 William Hawkins, A Treatise of the Pleas of the Crown
136 § 9 (1716). 16 Hawkins’s narrow interpretation of the
statute was in accord with that of the Court of King’s Bench,
which clarified that “the meaning of the [Statute of
Northampton] was to punish people who go armed to terrify
the King’s subjects.” Sir John Knight’s Case, 87 Eng. Rep.
75, 76, 3 Mod. 117 (K.B. 1686) (emphasis added). 17
16
Indeed, even some wearing of arms that might have been “apt to
terrify the People” fell outside of the statutes prohibitions, as Hawkins
explained that one who “arm[ed] himself to suppress Rioters, Rebels, or
Enemies” or “upon a Cry made for Arms to keep the Peace” would face
no punishment under the statute. See id. at § 10.
17
We disagree with the view that Sir John Knight’s Case should
only be read for the proposition that government agents were exempt
from the statute. See Charles, supra, at 28–30. The case reports leave not
so much as a hint that Knight’s loyalty to the Crown was the critical issue
before the Court of King’s Bench. Indeed, Knight was charged with
“goeing with a blunderbus in the streets, to the terrifyeing his majesties
subjects.” 1 Narcissus Luttrell, A Brief Historical Relation of State
Affairs from September 1678 to April 1714 380 (Oxford Univ. Press
1857) (emphasis added). And contemporaneous reports of his acquittal
reported that “sir John Knight, the loyall, was tried at the court of kings
bench for a high misdemeanor, in goeing armed up and down with a gun
att Bristoll; who being tried by a jury of his own citty, that knew him
well, he was acquitted, not thinking he did it with any ill design.” Id. at
389 (emphasis added); see also Moore, 702 F.3d at 936 (interpreting the
case in the same manner). After his acquittal, Sir Knight was required to
post a bond for good behavior, Rex v. Knight, 90 Eng. Rep. 331,
Comberbach 41 (1686), a peculiar measure for one supposedly cloaked
in government authority.
YOUNG V. STATE OF HAWAII 39
Of course, an untoward intent to terrorize the local
townsfolk was not always needed to face arrest and
imprisonment; as Blackstone interpreted the statute—an
interpretation credited by Heller, 554 U.S. at 627—“going
armed, with dangerous or unusual weapons, is a crime
against the public peace, by terrifying the good people of the
land.” 4 William Blackstone, Commentaries *148–*149
(emphasis added). Indeed, Hawkins wrote that “a Man
cannot excuse the wearing such Armour” even “by alledging
that such a one threatened him.” Hawkins, supra, at 136 § 8.
But clearly not all weapons can be characterized as
“dangerous or unusual,” else Heller’s exemption of Second
Amendment protection for weapons of that kind would
swallow the Amendment’s protections as a whole. See
554 U.S. at 627; Moore, 702 F.3d at 936 (“[T]he Court
cannot have thought all guns are ‘dangerous or unusual’ and
can be banned, as otherwise there would be no right to keep
a handgun in one’s home for self-defense.”).
Consequently, we see little in the more recent historical
record to suggest that the Statute of Northampton barred
Englishmen from carrying common (not unusual) arms for
defense (not terror).
2
More fundamentally, however, we respectfully decline
the County’s and the State’s invitation to import English law
wholesale into our Second Amendment jurisprudence.
While English law is certainly relevant to our historical
inquiry because the Second Amendment “codified a pre-
existing right,” Heller, 554 U.S. at 592, our aim here is not
merely to discover the rights of the English. Indeed, there is
a scholarly consensus that the 1689 English right to have
arms was less protective than its American counterpart. See
Jonathan Meltzer, Note, Open Carry for All: Heller and Our
40 YOUNG V. STATE OF HAWAII
Nineteenth-Century Second Amendment, 123 Yale L.J.
1486, 1500 (2014); Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right 120–21
(1994). That is because the English right was “not available
to the whole population, given that it was restricted to
Protestants, and like all written English rights it was held
only against the Crown, not Parliament.” Heller, 554 U.S. at
593. Accordingly, it only guaranteed the right of Protestants
to have arms “as allowed by law.” See Malcom, supra, at
121, 162. But not all laws that restricted the right of
Englishmen to have arms found a place across the Atlantic.
As St. George Tucker observed, it would have been strange
to apply in the United States an English law that presumed
any gathering of armed men was treasonous, because “the
right to bear arms is recognized and secured in the
[American] constitution itself.” See Tucker, supra, vol. 5,
app., n.B, at 19; see also Cooley, supra, at 270 (noting that
the Second Amendment “was adopted with some
modification and enlargement from the English Bill of
Rights”); William Rawle, A View of the Constitution of the
United States of America 126 (2d ed. 1829) (writing that the
English right, unlike the Second Amendment, “is allowed
more or less sparingly, according to circumstances”).
Thus, instead of stitching into the Second Amendment
every odd law that hemmed in the rights of fourteenth
century Englishmen, we consider those English laws only to
the extent they inform the original public understanding of
the Second Amendment. See Heller, 554 U.S. at 594 (“By
the time of the founding, the right to have arms had become
fundamental for English subjects.” (emphasis added)). With
our historical inquiry properly framed, the fog encircling the
Statute of Northampton’s “true” meaning clears away, for
the American understanding and implementation of the
YOUNG V. STATE OF HAWAII 41
statute was unambiguously consistent with a robust Second
Amendment right to open carry.
To the extent the Framers considered the Statute of
Northampton as instructive of the pre-existing right to bear
arms, they took a narrow view of its prohibitions. See
Eugene Volokh, The First and Second Amendments,
109 Colum. L.Rev. Sidebar 97, 101 (2009). In that vein,
Justice James Wilson, a leading drafter of the Constitution,
credited Serjeant Hawkins and construed the statute to
prohibit arming oneself “with dangerous and unusual
weapons, in such a manner, as will naturally diffuse a terrour
among the people.” 2 James Wilson, Collected Works of
James Wilson 654 (Kermit L. Hall & Mark D. Hall eds.
1967); see also Volokh, The First and Second Amendments,
supra, at 101 (“American benchbooks for justices of the
peace echoed [Wilson’s observation], citing Hawkins
. . . .”). William Rawle, a prominent member of the
Pennsylvania Assembly that ratified the Constitution,
likewise cited Hawkins and wrote that the right to bear arms
would not rule out a law prohibiting “the carrying of arms
abroad by a single individual, attended with circumstances
giving [observers] just reason to fear that he purposes to
make an unlawful use of them.” Rawle, supra, at 126. 18
18
To the extent that one could read Hawkins as having thought the
Statute of Northampton would permit only “Persons of Quality”
(nobility) to carry weapons, see Hawkins, supra, at 136 § 9, such a class-
based limitation clearly found no place in the United States. Volokh, The
First and Second Amendments, supra, at 101–02. Indeed, neither Justice
Wilson nor William Rawle makes any mention of such a limitation when
citing Hawkins, nor do any other American sources that we have read.
See William W. Hening, The New Virginia Justice, Comprising the
Office and Authority of a Justice of the Peace, in the Commonwealth of
42 YOUNG V. STATE OF HAWAII
Justice Wilson and William Rawle’s reading of the
statute is confirmed by the various state weapons carry
regulations throughout the founding era and beyond that
were expressly modelled after the Statute of Northampton
(“Northampton analogues”). See Eric M. Ruben & Saul
Cornell, Firearm Regionalism and Public Carry: Placing
Southern Antebellum Case Law in Context, 125 Yale L.J.
Forum 121, 128–29 (2015) (“[S]everal early American states
expressly incorporated versions of the Statute of
Northampton into their laws.”). Like the surety laws relied
on by the dissent, the state-enacted Northampton analogues
only sought to regulate disruptive—or more specifically,
terrifying—arms carrying. For example, Massachusetts in
1795 enacted a law authorizing justices of the peace to arrest
“all affrayers, rioters, disturbers, or breakers of the peace,
and such as shall ride or go armed offensively, to the fear or
terror of the good citizens.” 1795 Mass. Acts 436 (emphasis
added); see also 1786 Va. Acts 33 (prohibiting going “armed
by night []or by day, in fairs or markets, or in other places,
in terror of the Country”).
The North Carolina Supreme Court offered a definitive
interpretation of its Northampton analogue in 1843,
providing us with the benefit of a more thorough discussion
of its elements. State v. Huntly, 25 N.C. (3 Ired.) 418 (1843).
After holding that firearms fell within the reach of the crime,
the court clarified:
[I]t is to be remembered that the carrying of a
gun per se constitutes no offence. For any
lawful purpose—either of business or
amusement—the citizen is at perfect liberty
Virginia 18 (1795) (discussing Hawkins’s explanation of the Statute of
Northampton without any reference to “Persons of Quality”).
YOUNG V. STATE OF HAWAII 43
to carry his gun. It is the wicked purpose—
and the mischievous result—which
essentially constitute the crime. He shall not
carry about this or any other weapon of death
to terrify and alarm, and in such manner as
naturally will terrify and alarm, a peaceful
people.
Id. at 422–23. True, the court cited “business or
amusement,” instead of self-defense, as examples of lawful
purposes, but a moment’s thought refutes the notion that
such a list was exhaustive; surely a North Carolinian wasn’t
at liberty to carry his rifle only so long as he twirled it in
amusement. Rather, it was the “wicked purpose” that
“constitute[d] the crime.” Id. at 423.
3
We thus disagree with the dissent’s view that carrying a
weapon was itself sufficient to face punishment under a
state-enacted Northampton analogue. Dissent at 65 n.1. As
that argument goes, when the drafters of virtually every
single state Northampton analogue criminalized going
armed “to the terror” or “in affray” of others, the terror or
affray language was just purposive; that is, “terrorizing the
public was the consequence of going armed,” so such
language was incorporated into the statutes merely to clarify
why going armed was itself unlawful. See Ruben & Cornell,
supra, at 129–30; Charles, supra, at 33.
What an odd way it would be to write a criminal statute!
To interpret such language as merely purposive is to remove
its operative effect, for if going armed was itself unlawful
then clarifying the consequences of going armed adds not an
iota of substance to the crime. Of course, “where the text of
a clause itself indicates that it does not have operative effect,
44 YOUNG V. STATE OF HAWAII
such as ‘whereas’ clauses in federal legislation or the
Constitution’s preamble, a court has no license to make it do
what it was not designed to do.” Heller, 554 U.S. at 578 n.3.
But it is entirely another endeavor to read language mixed in
among operative elements in a criminal statute as merely
purposive. See id. (“[O]perative provisions should be given
effect as operative provisions, and prologues as
prologues.”); Ratzlaf v. United States, 510 U.S. 135, 140–41
(1994) (counseling “heightened” resistance before treating
statutory terms as “words of no consequence . . . when the
words describe an element of a criminal offense”). For
instance, Maine’s 1821 Northampton analogue authorized
the arrest of “all affrayers, rioters, disturbers or breakers of
the peace, and such as shall ride or go armed offensively, to
the fear or terror of the good citizens of this State, or such
others as may utter any menaces or threatening speeches.”
1821 Me. Laws 285. If riding armed were itself unlawful
because it terrorized the good citizens of Maine, it strains
credulity to suggest that Maine drafters would have felt the
need to clarify such reasoning right in the middle of the
statute’s operative provisions. Indeed, why only clarify the
consequences of riding armed, and no other prohibited
conduct?
More troubling, reading the “to the terror” language as
merely purposive frequently places a Northampton analogue
in conflict with its neighboring criminal provisions. Take a
closer look at the Northampton analogue in chapter 97
section 13 of Delaware’s 1852 Revised Statutes, which—in
familiar fashion—authorized the arrest of “all who go armed
offensively to the terror of the people, or are otherwise
disorderly and dangerous.” Revised Statutes of the State of
Delaware, to the Year of Our Lord One Thousand Eight
Hundred and Fifty-Two, Inclusive 333 § 13 (Dover, W.B.
Keen 1852). With that provision in mind, turn to Section 30,
YOUNG V. STATE OF HAWAII 45
where the Delaware Code authorized justices of the peace to
“punish any slave . . . who shall, without the special
permission of his master, go armed with any dangerous
weapon.” Id. at 336 § 30. How might one grant another
permission to “go armed with any dangerous weapon” if one
had no lawful authority to go armed in the first place? Or
consider Tennessee’s 1831 Revised Statutes, which,
immediately after providing its standard-form Northampton
analogue, authorized sheriffs to arrest any person “armed
with the intention of committing a riot or affray.” 1 The
Statute Laws of the State of Tennessee, of a Public and
General Nature 10 (Knoxville, John Haywood & Robert L.
Cobbs 1831). Why on earth would Tennessee have so
limited a sheriff’s authorization to arrest if going armed was
itself unlawful?
Thus, utterly confused by how we might read a
Northampton analogue to prohibit all arms carry, we feel the
better approach with these statutes is to take them at their
word: an American, just like an Englishman, could not go
armed offensively to the terror of the people. Such a
reasonable restriction on public carry is perfectly consistent
with a robust right peacefully to carry a firearm in public. In
all, then, the various Northampton analogues found in states
across the United States confirm that, “whatever
Northampton banned on the shores of England,” the
American right to carry common weapons openly for self-
defense “was not hemmed in by longstanding bans on
carrying.” Wrenn, 864 F.3d at 660–61.
G
Concluding our analysis of text and review of history, we
remain unpersuaded by the County’s and the State’s
argument that the Second Amendment only has force within
the home. Once identified as an individual right focused on
46 YOUNG V. STATE OF HAWAII
self-defense, the right to bear arms must guarantee some
right to self-defense in public. While the concealed carry of
firearms categorically falls outside such protection, see
Peruta II, 824 F.3d at 939, we are satisfied that the Second
Amendment encompasses a right to carry a firearm openly
in public for self-defense. Because section 134-9 restricts
Young in exercising such right to carry a firearm openly, it
burdens conduct protected by the Second Amendment.
IV
Accordingly, we must evaluate section 134-9 under “an
appropriate level of scrutiny.” Jackson, 746 F.3d at 962. In
doing so, we consider “(1) how close the law comes to the
core of the Second Amendment right, and (2) the severity of
the law’s burden on the right.” Id. at 963 (internal quotations
omitted).
We treat this approach as a “sliding scale.” Silvester v.
Harris, 843 F.3d 816, 821 (9th Cir. 2016). On one end, “[a]
law that imposes such a severe restriction on [a] core right
[of the Amendment] that it ‘amounts to a destruction of the
. . . right,’ is unconstitutional under any level of scrutiny.”
Jackson, 746 F.3d at 961 (quoting Heller, 554 U.S. at 629).
On the other end of the spectrum, intermediate scrutiny is
appropriate if the challenged law “does not implicate a core
Second Amendment right, or does not place a substantial
burden on the Second Amendment right.” Id.A
So, what constitutes the core of the Second Amendment?
As we know, the Second Amendment protects the right “to
keep and bear arms.” U.S. Const. amend. II. The key inquiry
is whether the core of the right encompasses both verbs, or
only one: keeping and bearing arms for self-defense, or,
YOUNG V. STATE OF HAWAII 47
more narrowly, only keeping arms for self-defense within
the home. 19
Heller aids our inquiry but provides no definitive
answer. On the one hand, in rejecting the collective view of
the right, Heller made clear that “self-defense had little to do
with the right’s codification; it was the central component of
the right itself.” 554 U.S. at 599 (emphasis in original); see
also id. at 628 (“[T]he inherent right of self-defense has been
central to the Second Amendment right.”). On the other
hand, Heller noted that “whatever else [the Amendment]
leaves to future evaluation, it surely elevates above all other
19
We disagree with the dissent that our circuit has already
determined whether the Second Amendment’s core applies outside the
home. Dissent at 14. As underscored by our recent en banc decision in
Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc),
our circuit has not yet decided the extent to which Second Amendment
rights—let alone core rights—exist outside of the home. See id. at 686
n.19 (“We have not decided the degree to which the Second Amendment
protects the right to bear arms outside the home.”).
To the extent that other cases in our circuit might have, in passing,
indicated that publicly carrying firearms falls outside the right’s core, the
question was not squarely presented in those cases because each dealt
with restrictions on keeping arms within the home. See, e.g., Chovan,
735 F.3d at 1129–30 (evaluating 18 U.S.C. § 922(g)’s prohibition on
domestic violence misdemeanants from “possessing firearms for life”).
Naturally, then, no such case seriously grappled with the existence of
core rights outside the home. Indeed, we doubt our court would have
resolved in a sentence or two an issue that the Wrenn majority and dissent
debated extensively. See Wrenn, 864 F.3d at 657–64, 668–69; see also
United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc)
(Kozinski, J., concurring) (“Of course, not every statement of law in
every opinion is binding on later panels. Where it is clear that a statement
is made casually and without analysis, where the statement is uttered in
passing without due consideration of the alternatives, or where it is
merely a prelude to another legal issue that commands the panel’s full
attention, it may be appropriate to re-visit the issue in a later case.”).
48 YOUNG V. STATE OF HAWAII
interests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” 554 U.S. at 635. We
recognize that several of our sister circuits have interpreted
this language to limit the Amendment’s core to the home.
See Drake, 724 F.3d at 431; Woollard, 712 F.3d at 874;
Kachalsky, 701 F.3d at 93. But we afford little weight to
Heller’s emphasis on the application of the Second
Amendment to the home specifically, for the challenge there
exclusively concerned handgun possession in the home.
554 U.S. at 575–76; see also Drake, 724 F.3d at 445
(Hardiman, J., dissenting). And in any event, it may very
well be the case that within the core of the Amendment, self-
defense at home is “most acute.” Heller, 554 U.S. at 628.
But much of Heller’s reasoning implied a core purpose
of self-defense not limited to the home. The Court cited “at
least seven [state constitutional provisions that]
unequivocally protected an individual citizen’s right to self-
defense,” which is “strong evidence that that is how the
founding generation conceived of the right.” Id. at 603. Also
without any reference to the home, Heller noted that
“[a]ntislavery advocates routinely invoked the right to bear
arms for self-defense,” id. at 609, including Joel Tiffany,
who wrote “the right to keep and bear arms, also implies the
right to use them if necessary in self defence; without this
right to use the guaranty would have hardly been worth the
paper it consumed.” Id. (quoting Joel Tiffany, A Treatise on
the Unconstitutionality of American Slavery 117–18 (1849)).
Charles Sumner’s famous “Bleeding Kansas” speech,
quoted at length in Heller, can hardly be read without
sensing its vociferous declaration that the Second
Amendment’s core reaches self-defense on the American
frontier: “Never was this efficient weapon [the rifle] more
needed in just self-defense, than now in Kansas, and at least
one article in our National Constitution must be blotted out,
YOUNG V. STATE OF HAWAII 49
before the complete right to it can in any way be impeached.”
Id. (quoting The Crime Against Kansas, May 19–20, 1856,
in American Speeches: Political Oratory From the
Revolution to the Civil War 553, 606–07 (T. Widmer ed.
2006)); see also McDonald, 561 U.S. at 775 (“[O]ne of the
‘core purposes of the Civil Rights Act of 1866 and of the
Fourteenth Amendment was . . . to ‘affirm the full and equal
right of every citizen to self-defense.’” (quoting Akhil Amar,
The Bill of Rights: Creation and Reconstruction 264–65
(1998)).
Hence, we heed Heller’s—and McDonald’s—
admonition that citizens be allowed to use firearms “for the
core lawful purpose of self-defense.” Heller, 554 U.S. at
630, quoted in McDonald, 561 U.S. at 768; see also Wrenn,
864 F.3d at 659 (“Whatever motivated the Amendment, at
its core was the right to self-defense.”). While the
Amendment’s guarantee of a right to “keep” arms
effectuates the core purpose of self-defense within the home,
the separate right to “bear” arms protects that core purpose
outside the home. Indeed, Heller tied together the core rights
of keeping and bearing firearms in precisely the same
manner. When describing the “[f]ew laws in the history of
our Nation [that] have come close to the severe restriction of
the District’s handgun ban [within the home],” Heller
pointed to several state statutes that severely restricted the
open carrying of firearms outside the home. 554 U.S. at 629(emphasis added) (citing Reid, 1 Ala. at 612; Nunn, 1 Ga. at
251; Andrews, 50 Tenn. at 187).
We are unpersuaded that historical regulation of public
carry requires us to remove the right to bear arms from the
Second Amendment’s core protection. See, e.g., Kachalsky,
701 F.3d at 94; United States v. Masciandaro, 638 F.3d 458,
470– 71 (4th Cir. 2011). As the D.C. Circuit has explained,
50 YOUNG V. STATE OF HAWAII
“[t]he rights to keep and to bear, to possess and to carry, are
equally important inasmuch as regulations on each must
leave alternative channels for both.” Wrenn, 864 F.3d at 662.
Regulations on public carry tend to “leave alternative
channels” for self-defense outside the home, id., because
“[w]hen a state bans guns merely in particular places, such
as public schools, a person can preserve an undiminished
right of self-defense by not entering those places,” Moore,
702 F.3d at 940. 20 The prevalence of modest regulations on
bearing arms, such as a restriction on carrying firearms in a
school-zone, does not itself indicate that bearing arms is any
less protected than keeping arms, because the Second
Amendment tolerates equally modest restrictions on keeping
firearms, such as open surface restrictions in the home.
Wrenn, 864 F.3d at 663. Thus, historical restrictions on
public carry “go to show the scope of the right, not its lack
of fundamental character.” See McDonald, 561 U.S. at 802.
In sum, we reject a cramped reading of the Second
Amendment that renders to “keep” and to “bear” unequal
guarantees. Heller and McDonald describe the core purpose
of the Second Amendment as self-defense, see Heller,
554 U.S. at 599; McDonald, 561 U.S. at 787, and “bear”
20
The dissent mischaracterizes the Seventh Circuit’s decision in
Moore. According to the dissent, Moore did not address whether the
“core” of the Second Amendment includes the right to bear arms outside
the home. Dissent at 3. That is incorrect. While not discussing the core
as explicitly as we do here, Moore did make clear that the Second
Amendment “confers a right to bear arms for self-defense, which is as
important outside the home as inside.” 702 F.3d at 942 (emphasis
added); see also id. at 941 (“[T]he interest in self-protection is as great
outside as inside the home.”). And at the very least, Moore rejected our
dissenting colleague’s attempt “[t]o confine the right to be armed to the
home [and thereby] to divorce the Second Amendment from the right of
self-defense described in Heller and McDonald.” Id. at 937.
YOUNG V. STATE OF HAWAII 51
effectuates such core purpose of self-defense in public. We
are persuaded, therefore, that the right to carry a firearm
openly for self-defense falls within the core of the Second
Amendment.
B
We next ask whether section 134-9 “amounts to a
destruction” of the core Second Amendment right to carry a
firearm openly for self-defense. Silvester, 843 F.3d at 821. If
so, the law is “unconstitutional under any level of scrutiny.”
Id.
As previously explained, section 134-9 limits the open
carry of firearms to people engaged in the protection of life
and property, and even those lucky few may carry firearms
only when in the actual course of their duties. Counsel for
the County acknowledged as much at oral argument, stating
that, to his knowledge, no one other than a security guard—
or someone similarly employed—had ever been issued an
open carry license.
Restrictions challenged under the Second Amendment
must be analyzed with regard to their effect on the typical,
law-abiding citizen. Wrenn, 864 F.3d at 665 (“[I]f the
Amendment is for law-abiding citizens as a rule, then it must
secure gun access at least for each typical member of that
class.” (emphasis omitted)). That’s because the Second
Amendment protects the right of individuals to keep and to
bear arms, not groups of individuals. See Heller, 554 U.S. at
595. An individual right that does not apply to the ordinary
citizen would be a contradiction in terms; its existence
instead would wax and wane with the whims of the ruling
majority.
52 YOUNG V. STATE OF HAWAII
Restricting open carry to those whose job entails
protecting life or property necessarily restricts open carry to
a small and insulated subset of law-abiding citizens. Just as
the Second Amendment does not protect a right to bear arms
only in connection with a militia, it surely does not protect a
right to bear arms only as a security guard. The typical, law-
abiding citizen in the State of Hawaii is therefore entirely
foreclosed from exercising the core Second Amendment
right to bear arms for self-defense. 21 It follows that section
134-9 “amounts to a destruction” of a core right, and as such,
it is infirm “[u]nder any of the standards of scrutiny.” See id.
at 628. Thus, we hold that section 134-9’s limitation on the
open carry of firearms to those “engaged in the protection of
21
We do not address whether, after Peruta II, a concealed carry
regime could provide a sufficient channel for typical, law-abiding
citizens to exercise their right to bear arms for self-defense. See 824 F.3d
at 927. While the County’s police chief purportedly awaits an
“exceptional case” to grant a concealed carry license, section 134-9 is
effectively a ban on the concealed carry of firearms. As counsel for the
County openly admitted at oral argument, not a single concealed carry
license has ever been granted by the County. Nor have concealed carry
applicants in other counties fared much better: Hawaii counties appear
to have issued only four concealed carry licenses in the past eighteen
years. See 2000 Haw. Att’y Gen. Reps., Firearm Registrations in
Hawaii, 2000 et seq; see also City of Sausalito v. O’Neill, 386 F.3d 1186,
1223 n.2 (9th Cir. 2004) (“We may take judicial notice of a record of a
state agency not subject to reasonable dispute.”). And there is no dearth
of applicants. See, e.g., 2016 Haw. Att’y Gen. Rep., Firearm
Registrations in Hawaii, 2016 at 9 (noting all 27 applicants for concealed
licenses in the State were denied); 2015 Haw. Att’y Gen. Rep., Firearm
Registrations in Hawaii, 2015 at 9 (noting all 44 applicants for concealed
licenses in the State were denied); 2014 Haw. Att’y Gen. Rep., Firearm
Registrations in Hawaii, 2014 at 9 (noting all 21 applicants for concealed
licenses in the State were denied). Thus, even if the State and County
remain free to accommodate the right to bear arms with concealed carry
after Peruta II, an issue we do not decide, section 134-9 does not offer a
realistic opportunity for a concealed carry license.
YOUNG V. STATE OF HAWAII 53
life and property” violates the core of the Second
Amendment and is void; the County may not constitutionally
enforce such a limitation on applicants for open carry
licenses.
V
Notwithstanding the fact that section 134-9 eviscerates a
core Second Amendment right—and must therefore be
unconstitutional—the dissent would uphold the law under
intermediate scrutiny. We do not wish to dive into the weeds
of intermediate scrutiny, but we feel obligated to note a few
aspects of the dissent’s analysis that are patently inconsistent
not only with intermediate scrutiny, but with the judicial role
itself.
A
As an initial mistake, the dissent chooses to analyze
section 134-9 as a “good cause” requirement to carry a
firearm in public, similar to those upheld by the Second,
Third, and Fourth Circuits. Dissent at 72–73; see Kachalsky,
701 F.3d at 101; Drake, 724 F.3d at 434; Woollard, 712 F.3d
at 876. The dissent emphasizes the language of section 134-
9 that purportedly authorizes the issuance of a concealed
carry license in an “exceptional case.” Yet, to analyze
section 134-9 as such, the dissent must shut its eyes to the
inconvenient fact that no concealed carry license has ever
been granted by the County.
The dissent claims that we lack a factual basis to
acknowledge that reality, but the dissent is clearly wrong.
The County’s attorney conceded at oral argument that no
concealed carry license has ever been granted by the County.
The dissent gives short shrift to such concession, but it is
nothing more than elementary that a party “is bound by
54 YOUNG V. STATE OF HAWAII
concessions made in its brief or at oral argument.” Hilao v.
Estate of Marcos, 393 F.3d 987, 993 (9th Cir. 2004).
Besides, official (and thus judicially noticeable) reports from
the State’s Attorney General confirm what the County
concedes: at least since 2000, no concealed carry license has
been granted by the County. See supra, note 21. And even if
some truly “exceptional” person in the County might one
day receive a concealed carry license, it would be
extraordinary to hold such a purely hypothetical stroke of
luck to be sufficient in safeguarding a constitutional right.
The Second, Third, and Fourth Circuits certainly did not
make such a leap. Those circuits, quite unlike the dissent,
confirmed that the good cause requirements at issue did not
disguise an effective ban on the public carry of firearms. As
the Second Circuit flatly insisted, “New York’s proper cause
requirement does not operate as a complete ban on the
possession of handguns in public.” Kachalsky, 701 F.3d at
91. Likewise, the Third Circuit observed that New Jersey’s
regime provided “clear and specific” standards,
“accompanied by specific procedures that provide
‘safeguards against arbitrary official action.’” Drake,
724 F.3d at 435 (footnote omitted) (quoting Siccardi v. State,
59 N.J. 545, 555 (1971)); see also Woollard, 712 F.3d at
869, 881 & n.10 (distinguishing Maryland’s law, which
allowed for licenses on a showing of a “good and substantial
reason,” from the outright ban invalidated by Moore,
702 F.3d at 940). And each of the good cause regimes that
were upheld provided for administrative or judicial review
of any license denial, Kachalsky, 701 F.3d at 87; Drake,
724 F.3d at 429; Woollard, 712 F.3d at 870, a safeguard
conspicuously absent from Hawaii’s laws. Far from
supporting the dissent’s argument, then, the reasoning of the
Second, Third, and Fourth Circuits suggests that they too
YOUNG V. STATE OF HAWAII 55
would invalidate a firearms carry regime as restrictive as
Hawaii’s.
We should also note the perplexing nature of the
dissent’s reasoning on this point. Suppose the dissent were
correct that “[n]o record has been developed in this case”
sufficient to discount section 134-9’s “exceptional case”
avenue. Dissent at 73. Utilizing the lack of such evidence to
uphold section 134-9 as a good cause requirement—thus
rejecting Young’s claim—would plainly be inappropriate at
this juncture. Young’s action sits at the motion to dismiss
stage. Are we now to dismiss claims under Rule 12(b) for a
lack of record evidence? Of course not!
B
Beyond the dissent’s misconception about how section
134-9 operates, its analysis under intermediate scrutiny is
utterly unpersuasive.
1
First, and foremost, the dissent chooses to omit one-half
of the inquiry. According to the dissent, the only question a
court must answer under intermediate scrutiny is whether the
government action “promotes a substantial government
interest that would be achieved less effectively absent the
regulation.” Dissent at 74 (quoting Fyock v. Sunnyvale,
779 F.3d 991, 1000 (9th Cir. 2015)). That is incomplete,
because a court must also determine whether the government
action “‘burden[s] substantially more [protected conduct]
than is necessary to further’ that interest.” Turner Broad.
Sys., Inc. v. F.C.C. (Turner II), 520 U.S. 180, 213–14 (1997)
(quoting Turner Broad. Sys., Inc. v. F.C.C. (Turner I),
512 U.S. 622, 662 (1994)); see also Shapero v. Ky. Bar
Ass’n, 486 U.S. 466, 476 (1988) (invalidating a flat ban on
56 YOUNG V. STATE OF HAWAII
direct-mail solicitation by lawyers because the government
could regulate “abuses . . . through far less restrictive and
more precise means”). Thus, while intermediate scrutiny
surely does not require the government to pursue the least
restrictive means of achieving an important interest, the
substantial overbreadth or impreciseness of a government
action must be considered.
Here, however, the dissent simply points out Hawaii’s
low firearm death rate and claims victory, at no point
seriously analyzing whether the State could reduce gun
violence through means considerably more targeted than
section 134-9.
2
Confounding the dissent’s erroneous understanding of
intermediate scrutiny is its willingness to defer entirely to the
State regarding the constitutionality of section 134-9.
Dissent at 74–75. The dissent relies on the Supreme Court’s
decision in Turner Broadcasting to justify its analysis, but in
reality the decision undermines the level of deference the
dissent would offer.
“Although we do ‘accord substantial deference to the
predictive judgments’ of the legislature” when conducting
intermediate scrutiny, “the [State] is not thereby ‘insulated
from meaningful judicial review.’” Heller v. District of
Columbia (Heller II), 670 F.3d 1244, 1259 (D.C. Cir. 2011)
(quoting Turner II, 520 U.S. at 195 & Turner I, 512 U.S. at
666). Quite the contrary, a court must determine whether the
legislature has “base[d] its conclusions upon substantial
evidence.” Turner II, 520 U.S. at 196. Indeed, despite the
deference owed, the State bears the burden “affirmatively
[to] establish the reasonable fit we require.” See Bd. of Trs.
of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).
YOUNG V. STATE OF HAWAII 57
The State and County here offer some empirical studies
in support of their argument that section 134-9 is a
reasonable means of reducing gun violence, but where does
the dissent actually engage with such evidence? It doesn’t.
Its analysis of the evidence is nothing more than the
conclusory assertion that “Hawaii has met its burden by
citing to significant empirical evidence [apparently two or so
pages in its brief is “significant”] and by explaining the
logical inferences behind its policy choices.” Dissent at 75
(emphasis added).
Mere citation is an inadequate application of
intermediate scrutiny, even according deference to the
predictive judgment of a legislature, and Turner
Broadcasting itself shows why. There, the Supreme Court
extensively analyzed over the course of twenty pages the
empirical evidence cited by the government, and only then
concluded that the government’s “policy [was] grounded on
reasonable factual findings supported by evidence that is
substantial for a legislative determination.” See Turner II,
520 U.S. at 196–224. To say that the dissent’s treatment of
the State’s evidence is in any way comparable to the analysis
of Turner Broadcasting is to omit nearly the entirety of the
Court’s opinion; the Court did much more than cite-check
the government’s brief.
The dissent is comfortable letting the State perform its
intermediate scrutiny analysis because “[i]t is the
legislature’s job, not ours, to weigh conflicting evidence and
make policy judgments.” Dissent at 74 (quoting Kachalsky,
701 F.3d at 99). No statement could more clearly indicate
where the dissent goes wrong: we are certainly not
evaluating a mere “policy judgment” but rather determining
the scope and application of a constitutional right. At
bottom, the dissent would have us fundamentally reject
58 YOUNG V. STATE OF HAWAII
Heller and construe the Second Amendment as nothing more
than an illusory promise. While the dissent might think
Heller was wrongly decided, it is far beyond our power to
overrule it.
VI
We do not take lightly the problem of gun violence,
which the State of Hawaii “has understandably sought to
fight . . . with every legal tool at its disposal.” Wrenn,
864 F.3d at 667. We see nothing in our opinion that would
prevent the State from regulating the right to bear arms, for
the Second Amendment leaves the State “a variety of tools
for combatting [the problem of gun violence], including
some measures regulating handguns.” Heller, 554 U.S. at
636.
But, for better or for worse, the Second Amendment does
protect a right to carry a firearm in public for self-defense.
We would thus flout the Constitution if we were to hold that,
“in regulating the manner of bearing arms, the authority of
[the State] has no other limit than its own discretion.” Reid,
1 Ala. at 616. While many respectable scholars and activists
might find virtue in a firearms-carry regime that restricts the
right to a privileged few, “the enshrinement of constitutional
rights necessarily takes certain policy choices off the table.”
Heller, 554 U.S. at 636.
YOUNG V. STATE OF HAWAII 59
Young has indeed stated a claim that section 134-9’s
limitations on the issuance of open carry licenses violate the
Second Amendment. 22
REVERSED as to the County, DISMISSED as to the
State, 23 and REMANDED for further proceedings
consistent with this opinion. 24
CLIFTON, Circuit Judge, dissenting:
Morris Udall once observed at a congressional
committee hearing that “everything has been said but not
everyone has said it.” After decades of relative inattention,
the Second Amendment has sparked substantial comment in
the last forty years. Others have said things that reflect my
view. I do not feel the need to repeat them.
22
Because we reverse the district court on Second Amendment
grounds, we need not reach Young’s due process claim.
23
The appeal as to the State is dismissed for the reasons discussed
in footnote 1.
24
We deal with the pending motions as follows: (1) The County’s
motion to strike Young’s 28(j) letters, ECF No. 20, is DENIED;
(2) Young’s motion to file a supplemental brief, ECF No. 24, is
GRANTED; (3) Young’s motion to strike the State’s amicus brief, ECF
No. 36, is DENIED; (4) Young’s motion to take judicial notice, ECF
No. 80, is GRANTED IN PART, and we take judicial notice of the
Hawaii Attorney General’s 2014 Firearms Registration Report;
(5) Young’s second motion to file a supplemental brief, ECF No. 84, is
GRANTED; (6) The State’s motion to file a supplemental amicus brief,
ECF No. 92, is GRANTED.
60 YOUNG V. STATE OF HAWAII
Following the Supreme Court’s decisions in District of
Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v.
City of Chicago, 561 U.S. 742 (2010), our court has spoken
more than once regarding the reach of the Second
Amendment. This case requires us to do so again. One
notable decision by our court was Peruta v. County of San
Diego, 742 F.3d 1144 (9th Cir. 2014) (Peruta I). It expressed
an interpretation of the Second Amendment and an
explanation for that understanding very similar to the
majority opinion in this case. This court voted to rehear
Peruta I en banc, however, and effectively overturned that
decision in Peruta v. County of San Diego, 824 F.3d 919 (9th
Cir. 2016) (en banc) (Peruta II). Our opinion in Peruta II
contained a lengthy discussion of history relevant to the
Second Amendment, including the right to bear arms in old
England, colonial America, and in the United States
following adoption of the Fourteenth Amendment. It is
sufficient for now to say that its assessment was different
from that contained in Peruta I and in the opinion of the
majority here.
The Peruta II en banc panel did not opine on the precise
question presented in this case, limiting its holding to the
conclusion that “the Second Amendment does not preserve
or protect a right of a member of the general public to carry
concealed firearms in public.” Id. at 924. As the majority
opinion notes, at 10, that decision left unresolved the
question of whether the Second Amendment supports the
right of a member of the general public to carry a firearm
openly in public.
A majority of the members of the Peruta II en banc panel
expressed additional views relevant to our current case in a
non-precedential fashion, however. In a separate concurring
opinion. Judge Graber, joined by two other members of the
YOUNG V. STATE OF HAWAII 61
panel, fully concurred in the en banc panel’s majority
opinion but went on to express the view that even if it was
assumed that the Second Amendment applied to the carrying
of concealed weapons, the restrictions at issue in that case
struck “a permissible balance between granting handgun
permits to those persons known to be in need of self-
protection and precluding a dangerous proliferation of
handguns on the streets.” Id. at 942 (internal quotation
omitted). The other four judges on the panel who made up
the majority stated that “if we were to reach that question,
we would entirely agree with the answer the concurrence
provides.” Id. In sum, seven of the eleven members of that
en banc panel expressed views that are inconsistent with the
majority opinion in this case.
Other circuit courts have weighed in as well. One other
circuit has expressed an opinion that aligns with the majority
opinion here: Wrenn v. District of Columbia, 864 F.3d 650,
665 (D.C. Cir. 2017). One has decided that the Second
Amendment protects the right to carry firearms in public,
generally agreeing with the conclusion of the majority here,
but it did not describe that right as part of the “core” of the
Second Amendment, as the majority has here: Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012). Three others have
reached contrary conclusions: Drake v. Filko, 724 F.3d 426(3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th
Cir. 2013), and Kachalsky v. County of Westchester,
701 F.3d 81 (2d Cir. 2012).
In light of the already existing circuit split, I assume that
the Supreme Court will find it appropriate at some point to
revisit the reach of the Second Amendment and to speak
more precisely to the limits on the authority of state and local
governments to impose restrictions on carrying guns in
public. In the meantime, this court and our counterparts
62 YOUNG V. STATE OF HAWAII
elsewhere will do the best we can to sort out the conflicting
arguments. I respect the opinion of the majority, but my
conclusion is different.
H.R.S. § 134-9 regulates both open carry and concealed
carry. Open carry licenses are available to those who are
“engaged in the protection of life and property” and “[w]here
the urgency or the need has been sufficiently indicated.”
Concealed carry licenses are available “[i]n an exceptional
case, when an applicant shows reason to fear injury to the
applicant’s person or property.” H.R.S. § 134-9.
In my view, this statutory scheme is the same type of
“good cause” public carry regulation that the Second, Third,
and Fourth Circuits upheld in Kachalsky, Drake, and
Woollard, respectively. Good cause licensing schemes, and
extensive state regulation of public carry more generally,
have a long history in the United States. While explicitly
declining to elaborate on specific regulations, the Supreme
Court in Heller expressly noted that the right secured by the
Second Amendment is “not unlimited” and that there were
“longstanding prohibitions” that were “presumptively
lawful.” Heller, 554 U.S. at 626–27 & n. 26. I would hold
that Hawaii’s statute is a longstanding, presumptively lawful
regulation under Heller. At a minimum, the statute survives
intermediate scrutiny, as the core of the Second Amendment
does not include a general right to publicly carry firearms
and there is a reasonable fit between the licensing scheme
and Hawaii’s legitimate interest in promoting public safety.
As a result, I respectfully dissent. As promised, I will try
not to repeat all that has already been said by other judges. I
will limit my comments to a few additional thoughts about
the historical record and the application of intermediate
scrutiny to the statute at hand.
YOUNG V. STATE OF HAWAII 63
I. History
The majority opinion’s conclusions rest heavily on
historical analysis in the vein of the Supreme Court’s
decisions in Heller and McDonald. The premise of that
approach is that the history of firearms regulations prior to
the adoption of the Second Amendment and in the decades
that followed that adoption shed light on the right that the
founders intended to provide. Much of the analysis offered
in the majority opinion repeats what was said in Peruta I,
despite the en banc rejection of that opinion in Peruta II.
The discussion in the majority opinion is incomplete, at
best. Throughout our history, states and their predecessor
colonies and territories have taken divergent approaches to
the regulation of firearms. While some, like the states that
the majority cites, have historically allowed for a general
right to publicly carry firearms, many others have not.
“History and tradition do not speak with one voice here.
What history demonstrates is that states often disagreed as to
the scope of the right to bear arms, whether the right was
embodied in a state constitution or the Second Amendment.”
Kachalsky, 701 F.3d at 91.
The majority opinion supports its conclusion by focusing
solely on the laws and decisions from one region, the
antebellum South. Take a look at the jurisdictions relied
upon by the majority opinion, at 19–23: Kentucky,
Tennessee, Alabama, Georgia, and Louisiana. What jumps
out is that those were all slave states, and the decisions relied
upon by the majority opinion all date from before the Civil
War. The majority opinion affirmatively acknowledges, at
28–32, the peculiar pattern of southern states following the
Civil War, during the era of Black Codes and efforts to keep
firearms out of the hands of former slaves, but it fails to
appreciate that the peculiarity did not start in 1865. To
64 YOUNG V. STATE OF HAWAII
suggest that the approach of the antebellum South reflected
a national consensus about the Second Amendment’s
implications for public carry of firearms is misguided. The
cases from the antebellum South relied upon by the majority
“did not emerge in a vacuum and do not reflect the full range
of American legal history. Rather, they come from a time,
place, and culture where slavery, honor, violence, and the
public carrying of weapons were intertwined.” Eric M.
Ruben & Saul Cornell, Firearm Regionalism and Public
Carry, 125 Yale L.J. F. 121, 125 (2015), http://www.yalela
wjournal.org/forum/firearm-regionalism-and-public-carry.
A more balanced historical analysis reveals that states
have long regulated and limited public carry of firearms and,
indeed, have frequently limited public carry to individuals
with specific self-defense needs. Hawaii’s regulatory
framework fits squarely into that long tradition.
There are two legal conclusions to be drawn from a more
thorough historical analysis. First, good cause licensing
schemes are longstanding and, therefore, are presumptively
lawful limitations on public carry of firearms under Heller.
Second, even if they are not presumptively lawful, the
widespread and longstanding nature of such schemes
supports the conclusion that a general right to publicly carry
firearms is not part of the core of the Second Amendment.
A. An Overview of State Regulation of Public Carry
Other decisions have detailed much of the history of
regulations and limitations on public carry, so I need not
fully reiterate that history here. I will instead provide only a
brief overview of the tradition of regulation of public carry,
with reference to the analysis performed by our court and
other circuits where appropriate.
YOUNG V. STATE OF HAWAII 65
As we recognized in our en banc Peruta II decision,
regulation of public carry has its roots in English law. Dating
back to the thirteenth century, England regulated public
carry of firearms, including both concealed and concealable
weapons. See Peruta II, 824 F.3d at 929–32 (citing, inter
alia, the Statute of Northampton, which prohibited men “to
go nor ride armed by night nor by day, in Fairs, Markets, nor
in the presence of the Justices or other Ministers, nor in no
part elsewhere” and subsequent laws emphasizing that the
Statute prohibited the carrying of concealable weapons). 1 In
the colonial period, several colonies “adopted verbatim, or
almost verbatim, English law” that limited or banned public
carry. Id. at 933.
In the late 18th and 19th centuries, states began to
develop good cause limitations or otherwise continued to
limit public carry. The Second Circuit detailed much of the
19th century history in Kachalsky, 701 F.3d at 90–93.
1
The majority’s analysis of English law and the colonies’ treatment
of English law, at 36–45, is also flawed. For example, the majority
assumes that historical regulations authorizing the arrest of or
criminalizing going armed “to the fear or terror” of the public mean that
the person who goes armed must have had the intent to terrify the public.
See, e.g., Maj. Op. at 42–45. But the majority opinion does not cite
adequate authority for that proposition, and there is no consensus that
supports such an interpretation. Another equally reasonable
interpretation is that these statutes meant that a member of the general
public could not go armed because to do so would terrify the people, and
the statutes included this language to “highlight[] the importance of the
police power in preventing the dangers imposed by public carrying . . . .
The terminology did not legally require circumstances where carrying of
arms was unusual and therefore terrifying. Instead, the act of riding or
going armed among the people was deemed terrifying itself and
considered a breach against the public peace.” Patrick J. Charles, The
Faces of the Second Amendment Outside the Home, 60 Clev. St. L. Rev.
1, 33 (2012).
66 YOUNG V. STATE OF HAWAII
Massachusetts, for example, first adopted a good cause
statute in 1836. Its law provided an exception to its limitation
on public carry for those with “reasonable cause to fear an
assault or other injury, or violence to his person, or to his
family or property.” 1836 Mass. Laws 748, 750, ch. 134,
§ 16. Under this law, any person who went armed without
such good cause “may, on complaint of any person having
reasonable cause to fear an injury or breach of the peace, be
required to find sureties for keeping the peace.” Id.
Wisconsin, Oregon, Minnesota, Michigan, Virginia, and
Maine adopted similar laws. See Act to Prevent the
Commission of Crimes, § 16, reprinted in The Statutes of the
Territory of Wisconsin 379, 381 (1839) (restricting “go[ing]
armed with a . . . pistol or pistols, or other offensive and
dangerous weapon, without reasonable cause to fear an
assault or other injury.”); Proceedings to Prevent
Commission of Crimes, ch. 16, § 17, 1853 Or. Laws 220(restricting any person from going armed with “pistol, or
other offensive and dangerous weapon, without reasonable
cause to fear an assault, injury, or other violence to his
person, or to his family or property.”); Of Proceedings to
Prevent the Commission of Crime, ch. 193, § 16, reprinted
in Thomas M. Cooley, Compiled Laws of the State of
Michigan 1572 (1857) (restricting any person from going
armed with a “pistol, or other offensive and dangerous
weapon, without reasonable cause to fear an assault or other
injury”); Of Proceedings to Prevent the Commission of
Crimes, 1847 Va. Laws 129, ch. 14, § 16 (restricting
“go[ing] armed with any offensive or dangerous weapon
without reasonable cause to fear an assault or other injury”);
Of Proceedings to Prevent the Commission of Crimes, ch.
112, § 18, Rev. Stat. Minn. 528 (1851) (restricting “go[ing]
armed with a . . . pistol or pistols, or other offensive and
dangerous weapon, without reasonable cause to fear an
assault or other injury.”); Of Proceedings for Prevention of
YOUNG V. STATE OF HAWAII 67
Crimes, ch. 169, § 16, Rev. Stat. Me. 709 (October 22, 1840)
(“Any person, going armed with any dirk, dagger, sword,
pistol, or other offensive and dangerous weapon, without a
reasonable cause to fear an assault on himself, or any of his
family or property, may . . . be required to find sureties for
keeping the peace.”). 2
After the Civil War, additional states adopted laws
similar to the Massachusetts good cause model. Texas, for
example, prohibited “[a]ny person [from] carrying on or
about his person” certain weapons, including pistols, but
provided an affirmative defense if the defendant could show
that he was “in danger of an attack on his person” that was
“immediate and pressing.” An Act to Regulate the Keeping
and Bearing of Deadly Weapons, ch. 35, §§ 1–2, 1871 Tex.
Laws 25 (discussed in State v. Duke, 42 Tex. 455 (1874)).
Several other states and territories also adopted full open
carry bans during this time. See An Act Defining and
Punishing Certain Offenses Against the Public Peace, § 1,
1889 Ariz. Sess. Laws 16 (prohibiting any person within any
settlement from “carry[ing] on or about his person, saddle,
or in his saddlebags, any pistol.”); An Act to Prevent the
Carrying of Fire Arms and Other Deadly Weapons, ch. 52,
§ 1, Wyo. Comp. Laws 352 (1876) (declaring that it is
unlawful for any resident of or visitor to a city or village to
“bear upon his person, concealed or openly, any fire arm or
other deadly weapon.”); An Act Regulating the Use and
2
The majority considers these types of regulations unpersuasive
because of the citizen-complaint mechanism used to enforce some of
these laws. See Maj. Op. at 33–34. But the point here is that states have
long regulated public carry and specifically provided exceptions to their
regulations for those with specific self-defense needs. The fact that the
public carry regulations may have been triggered by citizen-complaint
mechanisms does not change the states’ recognition that public carry
may be limited.
68 YOUNG V. STATE OF HAWAII
Carrying of Deadly Weapons in Idaho Territory, § 1, 1888
Idaho Sess. Laws 23 (declaring that it is unlawful for anyone
who is not a state or federal employee on duty “to carry,
exhibit or flourish any . . . pistol, gun or other deadly
weapons, within the limits or confines of any city, town or
village.”); 1881 Kan. Sess. Laws 92, ch. 37, § 23 (“The
council shall prohibit and punish the carrying of firearms, or
other dangerous or deadly weapons, concealed or
otherwise.”).
Numerous states adopted good cause limitations on
public carry in the early 20th century. Laws from this time
period may also be considered “longstanding” under Heller.
See Heller v. District of Columbia, 670 F.3d 1244, 1253
(D.C. Cir. 2011) (noting that the Supreme Court “considered
prohibitions on the possession of firearms by felons to be
longstanding although states did not start to enact them until
the early 20th century.” (internal quotation marks omitted)).
Indeed, Hawaii’s law dates to this time. 1927 Haw. Laws
209, act 206, § 7; see also 1913 N.Y. Laws 1629 (requiring
a showing of “proper cause”); Drake, 724 F.3d at 432
(explaining that New Jersey’s “justifiable need” standard
based on “special danger” for public carry licenses has
existed in some form for nearly 90 years, beginning in 1924).
Other states imposed other public carry restrictions.
Oklahoma, for example, established strict limits on public
carry. See Will T. Little et al., The Statutes of Oklahoma,
495–96, § 2 (1890) (“It shall be unlawful for any person in
this territory of Oklahoma, to carry upon or about his person
any pistol, revolver . . . or any other offensive or defensive
weapon.”). A more comprehensive review demonstrates that
state regulation of public carry has existed throughout
United States history, and that there is a long history of
regulations similar to Hawaii’s statute.
YOUNG V. STATE OF HAWAII 69
B. Good Cause Regulations Are Longstanding and
Presumptively Lawful
The longstanding and widespread nature of these
regulations is determinative as we decide on the
constitutionality of Hawaii’s regulatory framework. As
noted above, the Supreme Court emphasized in Heller that
nothing in its opinion “should be taken to cast doubt” on the
legitimacy of various longstanding limitations on the carry
of firearms and that the list of “presumptively lawful
regulatory measures” it specifically mentioned did not
“purport to be exhaustive.” Heller, 554 U.S. at 626–27 n. 26.
In Drake, the Third Circuit concluded that New Jersey’s
limitations on public carry to those with a justifiable need to
carry a handgun due to “special danger to the applicant’s life
that cannot be avoided by [other] means” are such
longstanding regulations that they join this presumptively
lawful list. 724 F.3d at 428, 431–34. Hawaii’s limitation on
public carry to those with a fear of injury is very similar to
New Jersey’s regime. Based on the analysis in that decision
and the history discussed above, I conclude that Hawaii’s
scheme should likewise be presumptively lawful under
Heller. 3
3
The majority opinion elects to disregard these enactments because
it says it does not know the level of enforcement and cannot discern
whether they were enacted “with a militia or a self-defense oriented view
of the right to bear arms in mind.” Maj. Op. at 35 n. 13. Those
explanations do not speak to the point, though. States did in fact adopt
these limitations on the carry of firearms, presuming the limitations to be
lawful and consistent with the Second Amendment, and they did so long
ago, making the restrictions long-established regulatory measures that
are presumptively lawful.
70 YOUNG V. STATE OF HAWAII
C. Public Carry Is Not the Core of the Second
Amendment
Even if Hawaii’s regulations were not presumptively
lawful, it is plain from the long history of state regulation
that a general right to publicly carry firearms is not part of
the “core” of the Second Amendment. As the Second Circuit
held in Kachalsky, “[t]he historical prevalence of the
regulation of firearms in public demonstrates that while the
Second Amendment’s core concerns are strongest inside
hearth and home, states have long recognized a
countervailing and competing set of concerns with regard to
handgun ownership and use in public. . . . Because our
tradition so clearly indicates a substantial role for state
regulation of the carrying of firearms in public, we conclude
that intermediate scrutiny is appropriate in this case.”
Kachalsky, 701 F.3d at 96.
The majority opinion is simply incorrect when it
concludes, at 32, that “the important founding-era treatises,
the probative nineteenth century case law, and the post-civil
war legislative scene each reveal a single American voice.”
As demonstrated by the discussion above, there was no
single voice on this question, as there is not today.
The majority’s assertion that our court has not yet
concluded that the core of the Second Amendment is focused
on self-defense in protection of hearth and home is also
incorrect. We have repeatedly made statements to that effect.
See Jackson v. Cty. of San Francisco, 746 F.3d 953, 963–64
(9th Cir. 2014) (“On its face, section 4512 implicates the
core because it applies to law-abiding citizens, and imposes
restrictions on the use of handguns within the home. . . .
Having to retrieve handguns from locked containers or
removing trigger locks makes it more difficult ‘for citizens
to use them for the core lawful purpose of self-defense’ in
YOUNG V. STATE OF HAWAII 71
the home.” (quoting Heller, 554 U.S. at 630)); United States
v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013) (“Heller tells
us that the core of the Second Amendment is ‘the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.’” (quoting Heller, 554 U.S. at 635)); Bauer
v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017) (“Heller
identified the core of the Second Amendment as the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.” (internal quotation marks omitted)). It is
true that “[w]e have not decided the degree to which the
Second Amendment protects the right to bear arms outside
the home.” See Teixeira v. Cty. of Alameda, 873 F.3d 670,
686 n. 19 (9th Cir. 2017) (en banc). But despite the majority
opinion’s assertion, Maj. Op. at 47 n. 19, Teixeira did not
say that we have not mapped the “core” of the Second
Amendment. The cases cited above have spoken to that
subject.
Many of the other circuits have defined the core of the
Second Amendment as our prior cases have. See Drake,
724 F.3d at 431 (stating that “the individual right to bear
arms for the purpose of self-defense” in the home is “the
‘core’ of the right as identified by Heller.”); Kachalsky,
701 F.3d at 89, 94 (“Heller explains that the ‘core’
protection of the Second Amendment is the ‘right of law-
abiding, responsible citizens to use arms in defense of hearth
and home.’” (quoting Heller, 554 U.S. at 634–35)); United
States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011)
(“[T]here now exists a clearly-defined fundamental right to
possess firearms for self-defense within the home.”); Bonidy
v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015)
(“If Second Amendment rights apply outside the home, we
believe they would be measured by the traditional test of
intermediate scrutiny.”); Nat’l Rifle Ass’n of America, Inc. v.
ATFE, 700 F.3d 185, 193 (5th Cir. 2012) (“The [Heller]
72 YOUNG V. STATE OF HAWAII
Court invalidated the laws because they violated the central
right that the Second Amendment was intended to protect—
that is, the ‘right of law-abiding, responsible citizens to use
arms in defense of hearth and home.’” (quoting Heller,
554 U.S. at 635) (emphasis in original)). I am thus joined by
most of the other circuits that have spoken to the question in
defining the core of the Second Amendment as defense of
hearth and home. My understanding is firmly grounded in
the long history of allowing substantial state regulation of
public carry.
II. Intermediate Scrutiny
Because I conclude that Hawaii’s regulatory framework
does not “impose[] such a severe restriction on the
fundamental right of self defense of the home that it amounts
to a destruction of the Second Amendment right,” the most
demanding level of review that can be applied to Hawaii’s
regulatory framework is intermediate scrutiny. Silvester v.
Harris, 843 F.3d 816, 821 (9th Cir. 2016). It appears to me
that there is a reasonable fit between Hawaii’s public carry
regulations and its unquestionably legitimate goal of
promoting public safety so that Hawaii’s statute would pass
constitutional muster. Given the stage of the case and the
direction of the majority, it does not seem worthwhile to try
to launch a complete intermediate scrutiny analysis at this
point. I note, however, that the majority opinion makes some
critical errors in declining to consider that analysis.
First, Hawaii does provide an alternative mode of access
to publicly carry firearms for self-defense. As we stated in
Jackson, “firearm regulations which leave open alternative
channels for self-defense are less likely to place a severe
burden on the Second Amendment right than those which do
not.” 746 F.3d at 961. Under Hawaii’s law, citizens may
obtain a concealed carry permit if they can show reason to
YOUNG V. STATE OF HAWAII 73
fear injury. They thus are not “entirely foreclosed” from
obtaining a permit to bear arms in public for self-defense, as
asserted in the majority opinion, at 52. Moreover, the
majority opinion’s assessment, at 52 n. 21, that “section 134-
9 does not offer a realistic opportunity for a concealed carry
license” lacks support in the record. No record has been
developed in this case, so a conclusion that the regulation
acts as a total ban is unsupported. It may be, as stated at oral
argument, that no concealed carry permit has been issued by
the County, but we have no information whatsoever about
the applicants for concealed carry permits, let alone enough
information to support a finding that those applicants would
have been eligible for a permit even if Hawaii had a “shall-
issue” regime. Under our precedent, the fact that Hawaii may
provide an alternative channel for public carry should weigh
in favor of finding that the law withstands constitutional
scrutiny. 4
4
This point speaks to a broader problem with the majority’s
analysis. Throughout its opinion, the majority attempts to focus only on
whether the Second Amendment protects a right to open carry, based on
an erroneous assumption that any other analysis is foreclosed by our
decision in Peruta II. I do not agree with this approach, and its
artificiality becomes clear when we move to the intermediate scrutiny
analysis. Peruta II specifically declined to decide not only whether the
Second Amendment protects open carry, but also whether it protects “a
right of a member of the general public to carry firearms in public.”
Peruta II, 824 F.3d at 927. In applying intermediate scrutiny, the
majority opinion specifically states, at 49 n. 16, that it does not address
whether “a concealed carry regime could provide a sufficient channel for
typical, law-abiding citizens to exercise their right to bear arms for self-
defense.” But this is illogical. The existence of alternative access to
public carry for self-defense in the form of concealed carry is
unquestionably relevant in an intermediate scrutiny analysis. Nothing in
Peruta II said otherwise. If we apply intermediate scrutiny, we must
consider the statute as a whole, rather than pretending that Hawaii has
instituted a complete ban on public carry, both open and concealed.
74 YOUNG V. STATE OF HAWAII
Second, the majority’s decision to pick apart the various
studies cited by the state ignores the Supreme Court’s dictate
to “accord substantial deference to the predictive judgments”
of the state legislature. Turner Broadcasting Sys., Inc. v.
F.C.C., 520 U.S. 180, 195 (1997) (internal quotation marks
omitted). As the Second Circuit stated in Kachalsky, “[i]t is
the legislature’s job, not ours, to weigh conflicting evidence
and make policy judgments.” Kachalsky, 701 F.3d at 99; see
also Drake, 724 F.3d at 439 (noting that “conflicting
empirical evidence . . . does not suggest, let alone compel, a
conclusion that the ‘fit’ between [a state’s] individualized,
tailored approach and public safety is not ‘reasonable.’”).
The test is not whether the state has provided flawless
empirical analysis that is immune to dispute to support its
reasonable conclusion that the regulatory measures promote
public safety. That limiting public carry of firearms may
have a positive effect on public safety is hardly a illogical
proposition. Many other states appear to have reached
similar conclusions, and so have most other nations.
Although the majority may not like the outcomes of
those studies, and may even disagree with their approaches,
intermediate scrutiny does not allow us to dismiss statutes
based on our own policy views or disagreements with
aspects of the analyses cited. In an intermediate scrutiny
analysis, Hawaii is not required to show that its regulatory
scheme “is the least restrictive means of achieving its
interest” in public safety, but rather need only show that the
scheme “promotes a substantial government interest that
would be achieved less effectively absent the regulation.”
Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015)
(internal quotation marks omitted).
YOUNG V. STATE OF HAWAII 75
Hawaii has met its burden by citing to significant
empirical evidence and by explaining the logical inferences
behind its policy choices. See IMS Health Inc. v. Ayotte, 550
F.3d 42, 55 (1st Cir. 2008) (abrogated on other grounds by
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (explaining
that under intermediate scrutiny states are “allowed to justify
speech restrictions by reference to studies and anecdotes”
and “history, consensus, and simple common sense”
(internal quotation marks omitted)). As other circuits have
held in Kachalsky, Drake, and Woollard, and as a majority
of the judges on our en banc panel indicated in Peruta II,
there is a reasonable fit between good cause limitations on
public carry licenses and public safety. See Kachalsky,
701 F.3d at 96–100; Drake, 724 F.3d at 439–40; Woollard,
712 F.3d at 878–82; Peruta II, 824 F.3d at 942.
Hawaii has a very low firearm death rate as compared to
other states: 4.5 deaths per 100,000 total population. See
National Center for Health Statistics, Firearm Mortality by
State,
https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mort
ality/firearm.htm. There are undoubtedly many factors that
lead to that result, but we should not ignore the evidence that
Hawaii has been highly successful in limiting firearm deaths
and promoting public safety. Hawaii has shown that there is
a reasonable fit between its statutory scheme and public
safety, and the state’s decision is owed deference. Any
conclusion otherwise disregards our proper role in an
intermediate scrutiny analysis.
III. Conclusion
The majority opinion goes astray in several respects.
Most obviously, the majority opinion has disregarded the
fact that states and territories in a variety of regions have
long allowed for extensive regulations of and limitations on
76 YOUNG V. STATE OF HAWAII
the public carry of firearms. Many have taken the approach
that Hawaii has taken for almost a century. Such regulations
are presumptively lawful under Heller and do not undercut
the core of the Second Amendment. In addition, the majority
opinion misconceives the intermediate scrutiny test, assumes
without support in the record that Hawaii’s statute operates
as a complete ban, and substitutes its own judgment about
the efficacy of less restrictive regulatory schemes. This
approach is in conflict with Supreme Court precedent, our
own decisions, and decisions by other circuits.
I respectfully dissent.