FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE K. YOUNG, JR., No. 12-17808
Plaintiff-Appellant,
D.C. No.
v. 1:12-cv-00336-
HG-BMK
STATE OF HAWAII; NEIL
ABERCROMBIE, in his capacity as
Governor of the State of Hawaii; OPINION
DAVID MARK LOUIE I, Esquire, in
his capacity as State Attorney
General; COUNTY OF HAWAII, as a
sub-agency of the State of Hawaii;
WILLIAM P. KENOI, in his capacity as
Mayor of the County of Hawaii;
HILO COUNTY POLICE DEPARTMENT,
as a sub-agency of the County of
Hawaii; HARRY S. KUBOJIRI, in his
capacity as Chief of Police; JOHN
DOES, 1–25; JANE DOES, 1–25; DOE
CORPORATIONS, 1–5; DOE ENTITIES,
1–5,
Defendants-Appellees.
2 YOUNG V. STATE OF HAWAII
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Argued and Submitted En Banc September 24, 2020
San Francisco, California
Filed March 24, 2021
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain, M. Margaret McKeown, Kim McLane
Wardlaw, William A. Fletcher, Richard R. Clifton, Jay S.
Bybee, Consuelo M. Callahan, Sandra S. Ikuta, Michelle T.
Friedland and Ryan D. Nelson, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge O’Scannlain;
Dissent by Judge R. Nelson
YOUNG V. STATE OF HAWAII 3
SUMMARY*
Civil Rights
The en banc court affirmed the district court’s dismissal
of an action challenging Hawai‘i’s firearm licensing law,
Hawai‘i Revised Statutes § 134-9(a), which requires that
residents seeking a license to openly carry a firearm in public
must demonstrate “the urgency or the need” to carry a
firearm, must be of good moral character, and must be
“engaged in the protection of life and property.”
Appellant George Young applied for a firearm-carry
license twice in 2011, but failed to identify “the urgency or
the need” to openly carry a firearm in public. Instead, Young
relied upon his general desire to carry a firearm for self-
defense. Both of Young’s applications were denied. Young
brought a challenge to Hawai‘i’s firearm-licensing law under
the Second Amendment and the Due Process Clause of the
Fourteenth Amendment. The district court upheld Hawai‘i’s
statute.
The en banc court first held that the scope of its review
would be limited to Young’s facial challenge to HRS § 134-9.
There was no need to determine whether Hawai‘i County
properly applied § 134-9, because Young did not bring an as-
applied challenge.
The en banc court noted that this Court has previously
held that individuals do not have a Second Amendment right
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 YOUNG V. STATE OF HAWAII
to carry concealed weapons in public. Peruta v. County of
San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). The
question presented in this case, accordingly, was limited to
whether individuals have a right to carry weapons openly in
public. To answer that question, and consistent with 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), the en banc court first considered
whether Hawai‘i’s law affects conduct protected by the
Second Amendment.
After careful review of the history of early English and
American regulation of carrying arms openly in the public
square, the en banc court concluded that Hawai‘i’s
restrictions on the open carrying of firearms reflect
longstanding prohibitions, and therefore, the conduct they
regulate is outside the historical scope of the Second
Amendment. The en banc court held that the Second
Amendment does not guarantee an unfettered, general right
to openly carry arms in public for individual self-defense.
Accordingly, Hawai‘i’s firearms-carry scheme is lawful.
The en banc court rejected Young’s argument that HRS
§ 134-9 is invalid as a prior restraint because it vests chiefs of
police with unbridled discretion to determine whether a
permit is issued. Joining its sister circuits, the en banc court
held that the prior restraint doctrine does not apply to Second
Amendment challenges to firearm-licensing laws.
The en banc court also rejected, as premature, Young’s
due process argument that HRS § 134-9 does not provide
adequate process to challenge the denial of a carry-permit
application. The en banc court noted that Young did not
seek review under HRS § 91-9 before bringing suit. So,
YOUNG V. STATE OF HAWAII 5
Hawai‘i has not yet denied him the opportunity for appellate
review. Because Young has not actually been denied a
hearing, his procedural due process claim was speculative,
and there was no need to reach it.
Dissenting, Judge O’Scannlain, joined by Judges
Callahan, Ikuta, and R. Nelson, would hold that both HRS
§ 134-9 and the 1997 County regulation destroy the core right
to carry a gun for self-defense outside the home and are
unconstitutional under any level of scrutiny. Judge
O’Scannlain stated that the majority holds that while the
Second Amendment may guarantee the right to keep a
firearm for self-defense within one’s home, it provides no
right whatsoever to bear—i.e., to carry—that same firearm
for self-defense in any other place. In his view, the
majority’s decision undermines not only the Constitution’s
text, but also half a millennium of Anglo-American legal
history, 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), and the foundational
principles of American popular sovereignty itself.
Dissenting, Judge R. Nelson, joined by Judges Callahan
and Ikuta, concurred with Judge O’Scannlain’s dissent
concluding that Hawaii Revised Statute 134-9 violates the
Second Amendment. Judge R. Nelson wrote that the majority
erred not only in holding the statute facially constitutional,
but also in rejecting Young’s as-applied challenge. He also
wrote separately to highlight the brazenly unconstitutional
County of Hawaii Regulations applying HRS § 134-9, stating
that there should be no dispute that any law or regulation that
restricts gun ownership only to security guards violates the
Second Amendment.
6 YOUNG V. STATE OF HAWAII
COUNSEL
Alan Alexander Beck (argued), San Diego, California;
Stephen D. Stamboulieh, Stamboulieh Law PLLC, Madison,
Mississippi; for Plaintiff-Appellant.
Neal Kumar Katyal (argued), Colleen E. Roh Sinzdak,
Mitchell P. Reich, and Sundeer Iyer, Hogan Lovells US LLP,
Washington, D.C.; Clare E. Connors, Attorney General;
Kimberly T. Guidry, Solicitor General; Robert T. Nakatsuji
and Kaliko‘Onalani D. Fernandes, Deputy Solicitors General;
Department of the Attorney General, Honolulu, Hawaii;
Joseph K. Kamelamela, Corporation Counsel; Laureen L.
Martin, Litigation Section Supervisor; D. Kaena Horowitz,
Melody Parker, Christopher P. Schlueter, Michael J. Udovic,
and Kimberly K. Angay, Deputies Corporation Counsel;
Office of the Corporation Counsel, Hilo Hawaii; for
Defendants-Appellees.
Kimberly T. Guidry, Solicitor General; Robert T. Nakatsuji,
Deputy Solicitor General; Department of the Attorney
General, Honolulu, Hawaii; for Amicus Curiae State of
Hawaii.
Deepak Gupta and Jonathan E. Taylor, Gupta Wessler PLLC,
Washington, D.C.; Eric Tirschwell and Mark Anthony
Frassetto, Everytown for Gun Safety Support Fund, New
York, New York; Janet Carter, William J. Taylor Jr., and Lisa
M. Ebersole, Everytown Law, New York, New York; for
Amicus Curiae Everytown for Gun Safety.
Simon J. Frankel, Covington & Burling LLP, San Francisco,
California; Paulina K. Slagter, Covington & Burling LLP,
Los Angeles, California; J. Adam Skaggs and David Pucino,
YOUNG V. STATE OF HAWAII 7
Giffords Law Center to Prevent Gun Violence, New York,
New York; Hannah Shearer, Giffords Law Center to Prevent
Gun Violence, San Francisco, California; for Amicus Curiae
Giffords Law Center to Prevent Gun Violence.
Gurbir S. Grewal, Attorney General; Andrew J. Bruck,
Executive Assistant Attorney General; Jeremy M.
Feigenbaum, Assistant Attorney General; Claudia Joy
Demitro, Adam D. Klein and Tim Sheehan, Deputy Attorneys
General; Attorney General’s Office, Trenton, New Jersey;
Xavier Becerra, Attorney General, Sacramento, California;
William Tong, Attorney General, Hartford, Connecticut;
Matthew P. Denn, Attorney General, Wilmington, Delaware;
Kwame Raoul, Attorney General, Chicago, Illinois; Tom
Miller, Attorney General, Des Moines, Iowa; Maura Healey,
Attorney General, Boston, Massachusetts; Brian E. Frosh,
Attorney General, Baltimore, Maryland; Letitia James,
Attorney General, New York, New York; Ellen F.
Rosenblum, Attorney General, Salem, Oregon; Peter F.
Neronha, Attorney General, Providence, Rhode Island; Mark
R. Herring, Attorney General, Richmond, Virginia; Karl A.
Racine, Attorney General, Washington, D.C.; for Amici
Curiae New Jersey, California, Connecticut, Delaware,
Illinois, Iowa, Massachusetts, Maryland, New York, Oregon,
Rhode Island, Virginia, and the District of Columbia.
Xavier Becerra, Attorney General; Michael J. Mongan,
Solicitor General; Thomas S. Patterson, Senior Assistant
Attorney General; Samuel P. Siegel and Helen H. Hong,
Deputy Solicitors General; Jonathan M. Eisenberg and P.
Patty Li, Deputy Attorneys General; Department of Justice,
Sacramento, California; for Amicus Curiae State of
California.
8 YOUNG V. STATE OF HAWAII
John W. Dillon, Gatzke Dillon & Ballance LLP, Carlsbad,
California, for Amicus Curiae San Diego County Gun
Owners Political Action Committee.
Richard L. Holcomb, Holcomb Law LLLC, Honolulu,
Hawaii, for Amicus Curiae Hawai‘i Rifle Association.
Donald L. Wilkerson, Laupahoehoe, Hawaii, for Amicus
Curiae Hawaii Firearms Coalition.
Herbert W. Titus, Robert J. Olson, William J. Olson, and
Jeremiah L. Morgan, William J. Olson P.C., Vienna,
Virginia; Joseph W. Miller, Restoring Liberty Action
Committee, Fairbanks, Alaska; for Amici Curiae Gun Owners
of America, Gun Owners Foundation, Heller Foundation,
Virginia Citizens Defense League, Conservative Legal
Defense and Education Fund, and Restoring Liberty Action
Committee.
David G. Sigale, Law Firm of David G. Sigale P.C., Glen
Ellyn, Illinois, for Amicus Curiae Second Amendment
Foundation.
Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer APC,
San Jose, California, for Amici Curiae Madison Society Inc.
Calguns Foundation, Firearms Policy Coalition Inc., and
Firearms Policy Foundation.
John Cutonilli, Garrett Park, Maryland, pro se Amicus
Curiae.
Neal Goldfarb, Washington, D.C., pro se Amicus Curiae.
YOUNG V. STATE OF HAWAII 9
Adita Dynar and Mark Chenoweth, New Civil Liberties
Alliance, Washington, D.C., for Amicus Curiae New Civil
Liberties Alliance.
Jeff Landry, Attorney General; Elizabeth Baker Murrill,
Solicitor General; Josiah M. Kollmeyer, Assistant Solicitor
General; Department of Justice, Baton Rouge, Louisiana;
Steven T. Marshall, Attorney General, Alabama; Mark
Brnovich, Attorney General, Arizona; Leslie Rutledge,
Attorney General, Arkansas; Christopher M. Carr, Attorney
General, Georgia; Lawrence G. Wasden, Attorney General,
Idaho; Aaron Negangard, Chief Deputy Attorney General,
Indiana; Derek Schmidt, Attorney General, Kansas; Daniel
Cameron, Attorney General, Kentucky; Lynn Fitch, Attorney
General, Mississippi; Timothy C. Fox, Attorney General,
Montana; Douglas J. Peterson, Attorney General, Nebraska;
Wayne Stenehjem, Attorney General, North Dakota; Dave
Yost, Attorney General, Ohio; Mike Hunter, Attorney
General, Oklahoma; Alan Wilson, Attorney General, South
Carolina; Jason Ravnsborg, Attorney General, South Dakota;
Ken Paxton, Attorney General, Texas; Sean D. Reyes,
Attorney General, Utah; Patrick Morrisey, Attorney General,
West Virginia; for Amici Curiae States of Louisiana,
Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana,
Kansas, Kentucky, Mississippi, Montana, Nebraska, North
Dakota, Ohio, Oklahoma, South Carolina, South Dakota,
Texas, Utah, and West Virginia.
Dan Jackson, Special Deputy Corporation Counsel, Keker
Van Nest & Peters LLP, San Francisco, California, for Amici
Curiae City and County of Honolulu, County of Kaua‘i, and
County of Maui.
10 YOUNG V. STATE OF HAWAII
Brian R. Matsui and Samuel B. Goldstein, Morrison &
Foerster LLP, Washington, D.C.; Jamie A. Levitt and Janie
C. Buckley, Morrison & Foerster LLP, New York, New
York; for Amici Curiae Corpus Linguistics Professors and
Experts.
Michael T. Jean, National Rifle Association of America—
Institute for Legislative Action, Fairfax, Virginia, for Amicus
Curiae National Rifle Association of America.
Matthew J. Silveira, Jones Day, San Francisco, California, for
Amici Curiae Social Scientists and Public Health
Researchers.
Mark D. Selwyn, Wilmer Cutler Pickering Hale and Dorr
LLP, Palo Alto, California; Nicholas G. Purcell, Wilmer
Cutler Pickering Hale and Dorr LLP, Los Angeles,
California; for Amici Curiae Professors of History and Law.
Antonio J. Perez-Marques, Sushila Rao Pentapati, Victor
Obasaju, Korey Boehm, and Thomas Dec, Davis Polk &
Wardwell LLP, New York, New York, for Amicus Curiae
Prosecutors Against Gun Violence.
Joseph G.S. Greenlee, Firearms Policy Coalition,
Sacramento, California; David B. Kopel, Independence
Institute, Denver, Colorado; for Amici Curiae Professors of
Second Amendment Law, Firearms Policy Coalition,
Firearms Policy Foundation, Cato Institute, Madison Society
Foundation, California Gun Rights Foundation, Second
Amendment Foundation, and Independence Institute.
C.D. Michel, Sean A. Brady, and Matthew D. Cubeiro,
Michel & Associates P.C., Long Beach, California; James
YOUNG V. STATE OF HAWAII 11
Hochberg, James Hochberg Attorney at Law LLLC,
Honolulu, Hawaii; for Amici Curiae Hawaii Rifle
Association, California Rifle & Pistol Association Inc., and
Gun Owners of California.
Mark M. Murakami, Damon Key Leong Kupchak Hastert,
Honolulu, Hawaii; Jonathan Lowy, Kelly Sampson, and
Christa Nichols, Brady, Washington, D.C.; for Amicus Curiae
Brady.
12 YOUNG V. STATE OF HAWAII
OPINION
TABLE OF CONTENTS
I. BACKGROUND AND PROCEEDINGS . . . . . . . . . 15
A. Hawai‘i’s Licensing Scheme. . . . . . . . . . . . . . . . . 15
1. History of Firearm Regulation in Hawai‘i . . . 15
2. Hawai‘i’s Current Scheme . . . . . . . . . . . . . . . 18
a. The statute. . . . . . . . . . . . . . . . . . . . . . . . . 18
b. The County of Hawai‘i’s regulations . . . . 19
c. Hawai‘i Attorney General Opinion
Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Facts and Proceedings . . . . . . . . . . . . . . . . . . . . . 22
II. THE STANDARDS FOR OUR REVIEW . . . . . . . . . 25
A. Standards of Review of Law and Fact . . . . . . . . . 25
B. Scope of Our Review. . . . . . . . . . . . . . . . . . . . . . . 25
C. Substantive Standards for the Second
Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1. Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2. Our Post-Heller Framework . . . . . . . . . . . . . . 34
III. PUBLIC CARRY OF FIREARMS AND THE
SCOPE OF THE SECOND AMENDMENT . . . . . . . 36
A. The English Right to Bear Arms in Public
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1. The Royal Decrees . . . . . . . . . . . . . . . . . . . . . 40
2. The Statute of Northampton . . . . . . . . . . . . . . 43
a. The statute. . . . . . . . . . . . . . . . . . . . . . . . . 43
b. Enforcement . . . . . . . . . . . . . . . . . . . . . . . 47
c. Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
d. Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3. The English Bill of Rights . . . . . . . . . . . . . . . 55
B. Colonial Restrictions on the Right to Bear
Arms in Public . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
YOUNG V. STATE OF HAWAII 13
C. Post Second Amendment Restrictions on the
Right to Bear Arms . . . . . . . . . . . . . . . . . . . . . . . . 62
1. Post-Ratification Restrictions . . . . . . . . . . . . . 64
2. Nineteenth-Century Restrictions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
a. The statutes . . . . . . . . . . . . . . . . . . . . . . . . 65
b. The cases. . . . . . . . . . . . . . . . . . . . . . . . . . 73
c. Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . 87
3. Twentieth-Century Restrictions . . . . . . . . . . . 92
D. The Power to Regulate Arms in the Public
Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
1. The Basic Rule . . . . . . . . . . . . . . . . . . . . . . . . 96
2. The Exceptions . . . . . . . . . . . . . . . . . . . . . . . 107
a. Classes of persons. . . . . . . . . . . . . . . . . . 107
b. Places . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
c. Licensing and good-cause requirements 108
d. Surety . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
E. Response to the Dissent . . . . . . . . . . . . . . . . . . . 113
F. Application to HRS § 134-9 . . . . . . . . . . . . . . . . 122
IV. OTHER CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . 123
A. Prior Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . 124
B. Procedural Challenge. . . . . . . . . . . . . . . . . . . . . 126
V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
14 YOUNG V. STATE OF HAWAII
BYBEE, Circuit Judge:
The State of Hawai‘i requires its residents to obtain a
license to carry a firearm in public. To satisfy the statutory
requirements for an open-carry license, residents must
demonstrate “the urgency or the need” to carry a firearm,
must be of good moral character, and must be “engaged in the
protection of life and property.” Appellant George Young
applied for a firearm-carry license twice in 2011, but failed to
identify “the urgency or the need” to openly carry a firearm
in public. Instead, Young relied upon his general desire to
carry a firearm for self-defense. Both of Young’s
applications were denied. Young brought a facial challenge
to Hawai‘i’s firearm-licensing law under the Second
Amendment and the Due Process Clause of the Fourteenth
Amendment. The district court upheld Hawai‘i’s statute.
We have previously held that individuals do not have a
Second Amendment right to carry concealed weapons in
public. Peruta v. County of San Diego, 824 F.3d 919 (9th
Cir. 2016) (en banc). The question presented in this case is
whether individuals have a right to carry weapons openly in
public. In order to answer that question, and consistent with
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), we ask, first, whether
Hawai‘i’s law affects conduct protected by the Second
Amendment. If so, we then determine if the law can survive
the appropriate level of scrutiny. After careful review of the
history of early English and American regulation of carrying
arms openly in the public square, we conclude that Hawai‘i’s
restrictions on the open carrying of firearms reflect
longstanding prohibitions and that the conduct they regulate
is therefore outside the historical scope of the Second
YOUNG V. STATE OF HAWAII 15
Amendment. Accordingly, Hawai‘i’s firearms-carry scheme
is lawful. We affirm the judgment of the district court.
I. BACKGROUND AND PROCEEDINGS
A. Hawai‘i’s Licensing Scheme
1. History of Firearm Regulation in Hawai‘i
Hawai‘i law began limiting public carriage of dangerous
weapons, including firearms, more than 150 years
ago—nearly fifty years before it became a U.S. territory and
more than a century before it became a state. Hawai‘i
enacted its first statutory regulation of public carry in 1852.
The aptly named “Act To Prevent the Carrying of Deadly
Weapons” recognized that “the habit of carrying deadly
weapons is dangerous to life and the public peace.” Act of
May 25, 1852, 1852 Haw. Sess. Laws 19. To combat those
risks, Hawai‘i’s pre-territorial legislative council prescribed
fines and imprisonment for “[a]ny person not authorized by
law, who shall carry, or be found armed with, any bowie-
knife, sword-cane, pistol, air-gun, slung-shot or other deadly
weapon.” Id. § 1. The Act of May 25, 1852 categorically
exempted certain professionals “authorized to bear arms,”
such as those “holding official, military, or naval rank . . .
when [the firearm was] worn for legitimate purposes.” Id.
§ 2.
Hawai‘i’s regulation of dangerous weapons remained in
effect after Hawai‘i consented to annexation as a U.S.
territory in 1898. Under the Newlands Resolution, “[t]he
municipal legislation of the Hawaiian Islands . . . not
inconsistent with this joint resolution nor contrary to the
Constitution of the United States nor to any existing treaty of
16 YOUNG V. STATE OF HAWAII
the United States, shall remain in force until the Congress of
the United States shall otherwise determine.” Resolution of
July 7, 1898, 30 Stat. 750. See Territory of Hawai‘i v.
Mankichi, 190 U.S. 197, 209 (1903). Hawai‘i’s territorial
legislature renewed its 1852 limitations on the carrying of
dangerous weapons in a 1905 Act, as amended in 1913. Haw.
Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw.
Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913
statute made it unlawful to carry deadly weapons unless
“authorized by law.” Id. The statute imposed civil and
criminal penalties on anyone who carried a “deadly weapon”
without prior authorization “unless good cause be shown for
having such dangerous weapon.” Id.
In 1927, Hawai‘i implemented its first restriction on
firearms specifically, as opposed to restrictions on the broader
class of “deadly weapons.” In a section entitled “Carrying or
keeping small arms by unlicensed person,” the law provided:
Except as otherwise provided in Sections 7
and 11 hereof in respect of certain licensees,
no person shall carry, keep, possess or have
under his control a pistol or revolver;
provided, however, that any person who shall
have lawfully acquired the ownership or
possession of a pistol or revolver may, for
purposes of protection and with or without a
license, keep the same in the dwelling house
or business office personally occupied by him,
and, in the case of an unlawful attack upon
any person or property in said house or office,
said pistol or revolver may be carried in any
lawful, hot pursuit of the assailant.
YOUNG V. STATE OF HAWAII 17
Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927
Act, which was modeled in part on the Uniform Firearms Act,
required a person to obtain a license to carry a “pistol or
revolver concealed upon his person or to carry one elsewhere
than in his home or office.” Id. § 7. Carry licenses could be
issued by the sheriff or a sitting judge after either had
determined that applicant was “suitable . . . to be so licensed.”
Id. An applicant was deemed “suitable” to carry a firearm
upon meeting a citizenship and age requirement and showing
a “good reason to fear an injury to his person or property, or
. . . other proper reason for carrying a pistol or revolver.” Id.
In 1933, the Hawai‘i legislature further refined its
concealed-carry licensing scheme. Act 26, § 8, 1933–1934
Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealed
weapon, the applicant had to demonstrate an “exceptional
case” and a “good reason to fear injury to his person or
property.” Id.
The “exceptional case” and “good reason to fear injury”
requirements included in the 1933 Act became staples of
Hawai‘i’s future firearm regulations. The Hawai‘i legislature
included those requirements in its 1961 Act “Relating to
Permits to Carry Firearms.” Act 163, 1961 Haw. Sess. Laws
215. The 1961 regulations mirrored those in the 1933 statute
and required an applicant to demonstrate an “exceptional
case” and a “good reason [for the applicant] to fear injury to
his person or property” before publicly carrying a firearm. Id.
§ 1. Whereas the 1933 Act only applied to concealed carry,
however, the 1961 Act announced a new regulatory scheme
for open carry. An individual seeking to carry a firearm
openly in public was required to demonstrate “the urgency of
the need” to carry and must be “engaged in the protection of
life and property.” Id. If the applicant made such a showing
18 YOUNG V. STATE OF HAWAII
and was not otherwise prohibited from possessing a firearm,
the chief of police had discretion to grant the carry
application. Id. (“[T]he respective chiefs of police may grant
a license . . . .”).
2. Hawai‘i’s Current Scheme
a. The statute. Hawai‘i’s current scheme allows
individuals to possess firearms under a variety of
circumstances. First, individuals who are not members of law
enforcement, the armed forces, or certain federal agencies and
wish to carry firearms in places outside of their homes, places
of business or sojourns must obtain a license from the county
chief of police. Hawai‘i Revised Statutes (HRS) § 134-9(a).
Second, individuals may possess firearms in their homes,
places of business, and sojourns. Id. § 134-23. Third,
persons who are authorized by their public employers,
including law enforcement, the armed forces, and certain
federal agencies, are exempt from other restrictions and may
carry in public. Id. § 134-11(a). Fourth, any person, sixteen
years or older “may carry and use any lawfully acquired rifle
or shotgun and suitable ammunition while actually engaged
in hunting or target shooting.” Id. § 134-5(a). Additionally,
“[a] person may carry unconcealed and use a lawfully
acquired pistol or revolver while actually engaged in hunting
game mammals.” Id. § 134-5(c).
Hawai‘i’s public carry licensing scheme is substantially
the same today as it was in 1961. Hawai‘i continues to
distinguish between concealed carry and open carry, although
it is not clear that the difference is particularly significant. To
obtain a concealed carry license from a county chief of
police, a person must first show “an exceptional case” and a
“reason to fear injury to [his or her] person or property.”
YOUNG V. STATE OF HAWAII 19
HRS § 134-9(a). As to open carry, the statute states in
relevant part:
Where the urgency or the need has been
sufficiently indicated, the respective chief of
police may grant to an applicant of good
moral character who is a citizen of the United
States of the age of twenty-one years or more,
is engaged in the protection of life and
property, and is not prohibited under section
134-7 from the ownership or possession of a
firearm, a license to carry a pistol or revolver
and ammunition therefor unconcealed on the
person within the county where the license is
granted.
Id. Many of the statute’s requirements are objective. For
instance, whether the applicant meets the citizenship, age, or
legal-ownership requirements may be determined by the
reviewing chief of police by a simple review of the
application and law enforcement databases. On the other
hand, “the urgency or the need” for the license and the
applicant’s participation in “the protection of life and
property” appear to be subjective requirements not
discoverable by reference to a law enforcement database.
b. The County of Hawai‘i’s regulations. In October
1997, the County of Hawai‘i—where Young lives and where
he applied for several carry permits—promulgated county-
wide rules to evaluate permit applications under § 134-9. See
HRS § 91-3 (detailing the rule-making process for county
boards, county commissions, and other agencies authorized
by law to make rules). These “Rules and Regulations
Governing the Issuance of Licenses to Carry Concealed and
20 YOUNG V. STATE OF HAWAII
Unconcealed Weapons” outline the process the chief of police
would follow in reviewing carry applications under § 134-9.
The county regulation imposed different rules for
concealed arms and for unconcealed arms consistent with
§ 134-9’s bifurcation, but a brief review of the regulations
reveals several inconsistencies between the state statute and
the county’s administration. At the outset, it is clear that
Hawai‘i County’s regulations are more demanding than
§ 134-9. For instance, the regulations seem to consider open-
carry permit applications to be available only to “private
detectives and security guards.” In fact, the first subheading
reads “Rules and Regulations Governing the Carrying of
Concealed Weapons and the Carrying of Weapons by Private
Detectives and Security Guards.” The regulation also
provides the chief of police a mechanism by which to cancel
a previously issued carry permit upon termination of the
applicant’s employment. Meanwhile, § 134-9 does not
impose a professional requirement on the applicant, nor does
it distinguish between applications by security guards and
applications by other citizens.
The county regulation also applies to a broader class of
weapons than does § 134-9. Whereas § 134-9 applies only to
the public carry of “a pistol or revolver and ammunition
therefor,” the county regulation defines “firearm” to include
“rifles, shotguns, automatic firearms, noxious gas projectors,
mortars, bombs, and cannon[s].” Section 134-9 did not
contemplate any of those classes of arms. Similarly, the
county regulation also applies to non-firearm “weapons” that
could be concealed on the person, including “knives,
blackjacks, batons, night sticks, and chemical agents designed
to temporarily subdue or incapacitate a person.” Again,
§ 134-9 is silent on such weapons.
YOUNG V. STATE OF HAWAII 21
c. Hawai‘i Attorney General Opinion Letter. After this
litigation began, the Hawai‘i Attorney General issued a
formal opinion interpreting § 134-9’s requirements and
clarified that § 134-9 does not reserve open-carry permits to
security guards. See State of Haw., Dep’t of the Att’y Gen.,
Opinion Letter No. 18-1, Availability of Unconcealed-Carry
Licenses (Sept. 11, 2018) (https://ag.hawaii.gov/wp-content
/uploads/2018/09/AG-Opinion-No.-18-1.pdf) (Att’y Gen.
Letter). The Attorney General unequivocally rejected
Hawai‘i County’s interpretation that an open-carry permit
applicant must demonstrate a professional need to carry, such
as being a private investigator or security guard. Id. at 3–4.
The Attorney General concluded that such a showing would
be inconsistent with § 134-9, which “does not limit
unconcealed-carry licenses to individuals employed as private
security officers.” Id. at 6. All that the statute requires is that
the applicant (1) meet the objective qualifications; (2) be of
good moral character; (3) demonstrate “sufficient need”; and
(4) present no other reason to be disqualified. Id. at 6–7.
According to the Attorney General’s Opinion Letter, an
applicant’s need is “sufficient” if it is urgent and is related to
“engage[ment] in the protection of life and property.” Id. at 7
(citing HRS § 134-9). The urgency requirement “connote[s]
an immediate, pressing, and heightened interest in carrying a
firearm.” Id. at 8. Coupled with the requirement that the
applicant be “engaged in the protection of life and property,”
an applicant must demonstrate more than a “generalized
concern for safety.” Id.; see also id. at 7 (noting that the
statute only requires an applicant to show a need for armed
self-defense “that substantially exceeds the need possessed by
ordinary law-abiding citizens”) (citing Drake v. Filko,
724 F.3d 426, 428 & n.2 (3d Cir. 2013)). The Attorney
General provided several examples of applicants who would
22 YOUNG V. STATE OF HAWAII
plausibly qualify for an open-carry license regardless of their
profession.1
The Attorney General’s Opinion Letter did not repeal
Hawai‘i County’s regulations, but its interpretation of state
law is considered “highly instructive.” See Kepo