Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT G EORGE K. Y OUNG , J R ., No. 12-17808 Plaintiff-Appellant , D.C. No.
v. 1:12-cv-00336- HG-BMK S TATE OF H AWAII ; N EIL
A BERCROMBIE , in his capacity as Governor of the State of Hawaii; OPINION D AVID M ARK L OUIE I, Esquire, in his capacity as State Attorney General; C OUNTY OF H AWAII , as a sub-agency of the State of Hawaii; W ILLIAM P.
K ENOI , in his capacity as Mayor of the County of Hawaii; H ILO C OUNTY P OLICE D EPARTMENT , as a sub- agency of the County of Hawaii; H ARRY S. K UBOJIRI , in his capacity as Chief of Police; J OHN D OES , 1– 25; J ANE D OES , 1–25; D OE
C ORPORATIONS , 1–5; D OE E NTITIES 1–5,
Defendants-Appellees. Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, Senior District Judge, Presiding Argued and Submitted February 12, 2018 Honolulu, Hawaii Filed July 24, 2018 *2 Before: Diarmuid F. O’Scannlain, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge O’Scannlain; Dissent by Judge Clifton
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] *3 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.
protection,
see Peruta v. County of San Diego
,
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
*4
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
District of Columbia v. Heller
,
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.
*5 6 Y OUNG V . S TATE OF H AWAII
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 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 *6 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
by sovereign immunity. Young’s action against the State
officials—while not barred by sovereign immunity under
Ex
Parte Young
,
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.”
*7 Young timely appealed. [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 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. 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
,
10 Y OUNG V . S TATE OF H AWAII
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
),
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
,
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
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
As was the case in Peruta II , we find ourselves navigating waters uncharted by 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
,
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
“with the scope [it was] understood to have when the people
adopted [it].” ,
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
,
delving into the historical nature of the right.
See Woollard
v. Gallagher
,
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 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
,
Y OUNG V . S TATE OF H AWAII 15
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
,
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. at 628. 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. also identified “laws forbidding the carrying of firearms in sensitive places such as schools and government *13 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
,
[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.’”
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.
understanding of the Second Amendment right, because, as
explains, “[t]hat sort of inquiry is a critical tool of
constitutional interpretation.” 554 U.S. at 605;
see also
Jackson
,
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
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
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.
We begin with
Bliss v. Commonwealth
, 12 Ky. (2 Litt.)
90 (1822),
cited in Heller
,
In Tennessee, the state’s highest court offered its
interpretation of the right to bear arms eleven years after
Bliss
.
See Simpson v. State
,
The Alabama Supreme Court joined the chorus seven
years later.
See State v. Reid
, 1 Ala. 612 (1840),
cited in
,
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
,
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.”
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
,
Thus, each of these nineteenth century cases found instructive by 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] 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 Y OUNG V . S TATE OF H AWAII
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.
*20
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
,
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.
,
the existence of a militia, and especially of a well regulated
militia, I am not able to divine.”);
English
,
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
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
,
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.
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
*22
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
,
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
,
D
Finally, as did the Court in Heller , we turn to the legislative scene following the Civil War. See 554 U.S. at 614–16. While considering materials that post-date the Bill of Rights by at least 75 years might stretch the term “ original public meaning,” 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.
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. at 770–78, 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
Y OUNG V . S TATE OF H AWAII 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
,
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 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
*25
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
.”
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
,
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) (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
34 Y OUNG V . S TATE OF H AWAII 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]
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
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. 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
*28
speeding or jaywalking,’ which makes them (in the Court’s
view) poor evidence of limits on the [Second] Amendment’s
scope.”
Wrenn
,
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
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,
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). 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.
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
,
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
,
*31
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
,
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
,
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
,
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. 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 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
,
[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”).
Y OUNG V . S TATE OF H AWAII 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,
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.” ,
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, 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
*36
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
,
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
. 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
,
IV
Accordingly, we must evaluate section 134-9 under “an
appropriate level of scrutiny.”
Jackson
,
We treat this approach as a “sliding scale.”
Silvester v.
Harris
,
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, . 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.”
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
,
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 , 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,
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
,
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
,
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
,
In sum, we reject a cramped reading of the Second Amendment that renders to “keep” and to “bear” unequal guarantees. and McDonald describe the core purpose *40 of the Second Amendment as self-defense, see Heller 554 U.S. at 599; McDonald , 561 U.S. at 787, and “bear” 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. 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
,
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 , 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
Y OUNG V . S TATE OF H AWAII 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
,
*42 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
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 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
*43
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
,
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.
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
*44
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
),
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.
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
),
Y OUNG V . S TATE OF H AWAII 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
,
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 Heller and construe the Second Amendment as nothing more than an illusory promise. While the dissent might think was wrongly decided, it is far beyond our power to *46 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
,
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
REVERSED as to the County, DISMISSED as to the State, [23] and REMANDED for further proceedings consistent with this opinion.
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 *47 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. 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 .
Following the Supreme Court’s decisions in
District of
Columbia v. Heller
,
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 *48 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 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
,
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 *49 62 Y OUNG V . S TATE OF H AWAII 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
,
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.
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 *50 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
,
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 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 *51 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.
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. 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 *52 Faces of the Second Amendment Outside the Home , 60 Clev. St. L. Rev. 1, 33 (2012).
66 Y OUNG V . S TATE OF H AWAII 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 *53 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
,
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 *54 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. .
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
,
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.
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
,
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
,
Y OUNG V . S TATE OF H AWAII 71
the home.” (quoting
Heller
,
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
,
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
,
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 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 *58 scrutiny. [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.
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.
,
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 *59 would be achieved less effectively absent the regulation.” Fyock v. Sunnyvale , 779 F.3d 991, 1000 (9th Cir. 2015) (internal quotation marks omitted).
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.
,
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 the public carry of firearms. Many have taken the approach that Hawaii has taken for almost a century. Such regulations are presumptively lawful under 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.