Upholding Hawaii Law, Federal Court Rules 'No Right to Carry Arms Openly in Public'

Amid the renewed national gun control debate following mass shootings in Georgia, Colorado, and dozens of other U.S. locations this month, a federal court on Wednesday ruled that states may restrict the right of citizens to openly carry firearms without violating the Second Amendment.

"The Second Amendment does not provide a blanket right to carry firearms in public. Instead, it allows states to enact common sense regulations like those we have in Hawaii."
--Clare Connors,
Hawaii Attorney General

In a 7-4 decision hailed as "a huge blow to the NRA" and "much-needed good news following recent high-profile gun massacres" by Brady: United Against Gun Violence president Kris Brown, the 9th U.S. Circuit Court of Appeals in San Francisco rejected a Hawaiian man's challenge to a state law restricting the open carrying of guns.

"There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment," states the court's opinion (pdf), authored by Judge Jay Bybee--a George W. Bush appointee known for writing the former president's torture authorization memos.

"The government may regulate, and even prohibit, in public places--including government buildings, churches, schools, and markets--the open carrying of small arms capable of being concealed, whether they are carried concealed or openly," wrote Bybee.

"Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square," he continued. "History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states' constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces."

Hawaii is a "may issue" state--meaning law enforcement authorities may issue a special carry license to residents if they can show that they need one because they have "reason to fear injury" to "person or property."

According to Honolulu Civil Beat, in 2011, Hilo resident George Young tried to get open and concealed carry permits--claiming the fact that he lives in a remote part of the state where police response times were slow made him vulnerable to harm--but was denied by the county sheriff.

After losing lawsuits at the county and state level, Young appealed to the 9th Circuit. In 2018, a panel of three federal judges ruled in his favor, finding Hawaii's law unconstitutional. The state then appealed that decision.

Hawaii Attorney General Clare Connors welcomed Wednesday's ruling, saying the court "properly upheld the constitutionality of our state's longstanding law allowing persons to carry firearms openly in public when licensed to do so."

"The Second Amendment does not provide a blanket right to carry firearms in public," said Connors. "Instead, it allows states to enact common sense regulations like those we have in Hawaii."

Gun rights attorney Alan Beck, who represents Young, told Honolulu Civil Beat he would appeal to the U.S. Supreme Court.

"The Second Amendment can't mean one thing in California, in Texas it means something else, and then in Tennessee something different entirely," argued Beck.

The 9th Circuit ruling comes amid renewed gun control debate following the latest U.S. mass shootings. According to the Gun Violence Archive, in addition to the high-profile massacres in metropolitan Atlanta and Boulder, Colorado, there have been at least 30 other mass shootings--in which four or more people were shot--in the U.S. since March 3.

These underreported shootings include one at a March 14 party in Chicago involving 15 victims, two of whom died; another at a Dallas nightclub on March 23 with eight victims; and one on March 16--the same day as the Georgia day spa murders--in which a Phoenix man killed his grandparents and his uncle before another relative got another gun and shot the shooter.