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; ORDER
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.
On Remand from the United States Supreme Court
Filed August 19, 2022
2 YOUNG V. STATE OF HAWAII
Before: Sidney R. Thomas, 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.
Order;
Dissent by Judge O’Scannlain
SUMMARY*
Second Amendment
Following the Supreme Court’s order vacating this court’s
judgment and remanding to this court “for further
consideration in light of New York State Rifle & Pistol Assn.,
Inc. v. Bruen, 597 U.S. ___ (2022),” the en banc court
vacated the judgment of the district court and remanded this
case to the district court for further proceedings pursuant to
the Supreme Court order.
Dissenting, Judge O’Scannlain, joined by Judges
Callahan, Ikuta, and R. Nelson, stated that the court shied
away from its obligations to provide guidance to the lower
courts and to answer the straightforward legal question of
whether Hawaii’s “may-issue” permitting scheme violated the
Second Amendment right of a responsible law-abiding citizen
to carry a firearm for self-defense outside of the home. Bruen
held unconstitutional a “may-issue” permitting scheme for
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
YOUNG V. STATE OF HAWAII 3
public carry of handguns, much like the law challenged in
this case. So, after Bruen, the question here was simple.
Instead of remanding without explanation or justification, the
court should have reversed the district court in an opinion
holding that plaintiff had stated a claim upon which relief
could be granted, that the “may-issue” permitting scheme was
unconstitutional, and that the case must proceed accordingly
in district court.
ORDER
The Supreme Court vacated the judgment of this Court,
992 F.3d 765, and has remanded this case to us “for further
consideration in light of New York State Rifle & Pistol Assn.,
Inc. v. Bruen, 597 U.S. ___ (2022),” Young v. Hawaii, 2022
WL 2347578, at *1 (U.S. 2022). We vacate the judgment of
the district court and remand this case to the district court for
further proceedings pursuant to the Supreme Court order.
Plaintiff-Appellant’s motion for summary reversal is
DENIED.
Defendants-Appellees’ request for supplemental briefing
before this Court is DENIED.
O’SCANNLAIN, Circuit Judge, with whom CALLAHAN,
IKUTA, and R. NELSON, Circuit Judges, join, dissenting:
I respectfully dissent from our failure to resolve the
straightforward legal issues presented by this case. The
Supreme Court has vacated the judgment of this Court and
4 YOUNG V. STATE OF HAWAII
remanded this case to us “for further consideration in light of
New York State Rifle & Pistol Association v. Bruen, 597 U.S.
___ (2022).” But today, we decline to give further
consideration to the question presented to us and we decline
even to deal with it.
This case presents the following question: in light of the
Supreme Court’s decision in Bruen, does Hawaii’s “may-
issue” permitting scheme violate the Second Amendment
right of a responsible law-abiding citizen to carry a firearm
for self-defense outside of the home? Bruen held
unconstitutional a “may-issue” permitting scheme for public
carry of handguns, much like the law challenged in this case.
So, after Bruen, the question before us is simple.
Nevertheless, our Court today declines to answer it. In
refusing to do so, our Court delays the resolution of this case,
wastes judicial resources, and fails to provide guidance to the
lower courts of our Circuit. As a judge of this Court, I feel
obliged to offer such guidance, even if a majority of my
colleagues does not.
I
A
George Young wishes to carry a firearm 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.”).
YOUNG V. STATE OF HAWAII 5
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. Id. § 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
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
use those firearms only while “actually engaged” in hunting
or target shooting, Id. § 134-5.
6 YOUNG V. STATE OF HAWAII
B
Ten years ago, 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 handgun 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, 209 U.S. 123 (1908)—was dismissed because
the district court found their general oversight of the
enforcement of Hawaii’s laws “insufficient to establish a
nexus between [such] officials and the alleged violation of
[Young’s] civil rights.”
Dismissing Young’s action against the County on the
merits, the district court determined 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
YOUNG V. STATE OF HAWAII 7
would uphold section 134-9’s open and concealed carry
limitations under intermediate scrutiny. The district court
reasoned that the State’s “substantial interest in safeguarding
the public from the inherent dangers of firearms” was
reasonably furthered by policies that “enable[] officials to
effectively differentiate between individuals who need to
carry a gun for self-defense and those who do not.” Young
timely appealed.
In 2018, a three-judge panel of our Court reversed the
district court’s dismissal of Young’s Second Amendment
claim against the County, holding that he “has indeed stated
a claim that section 134-9’s limitations on the issuance of
open carry licenses violate the Second Amendment.” Young
v. Hawaii, 896 F.3d 1044, 1074 (9th Cir. 2018). The panel
dismissed as waived Young’s appeal as to the State.1 Id.
This Court then granted rehearing en banc and vacated the
three-judge panel’s decision. Young v. Hawaii, 915 F.3d 681
(9th Cir. 2019).
In 2021, sitting en banc, we reached a conclusion
different from that of the three-judge panel. Young v.
Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc). Applying
our court’s post-Heller precedents, we held that the
restrictions imposed by section 134-9 are “not within the
scope of the right protected by Second Amendment.” Id.
at 826. Young filed a petition for writ of certiorari.
1
At that time, Young filed a notice of appeal with respect to the
dismissal of his claims against both the State and County, but on appeal
he made 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 neither filed a response brief nor sought to participate in oral
argument. We thus did not review the district court’s judgment regarding
the State when we first heard this case.
8 YOUNG V. STATE OF HAWAII
Following its decision in Bruen, the Supreme Court
granted Young’s petition, vacated our en banc decision, and
remanded the case to us for further consideration in light of
its opinion.
II
A
For section 134-9 to pass constitutional muster, “the
government must affirmatively prove that its firearms
regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms.” Bruen, Slip
Op. at 10. To the extent our court has required anything more
in Second Amendment cases, those cases are no longer good
law.
The Supreme Court in Bruen explicitly overruled the
lower courts’ two-step test which would apply means-end
scrutiny to the Second Amendment. Id. at 8, 10, 15 (rejecting
means-end scrutiny and admonishing the lower courts to
apply a one-step categorical test). Because “the reasoning or
theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority,”
we are “bound by the later and controlling authority” of the
Supreme Court, and therefore we must “reject the prior circuit
opinion[s] as having been effectively overruled.” Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003). As the Supreme
Court just instructed us, “the standard for applying the
Second Amendment is as follows: When the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of
YOUNG V. STATE OF HAWAII 9
firearm regulation. Only then may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’” Bruen, Slip Op. at 15 (quoting
Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n.10.
(1961)).
B
In a Second Amendment case, we must “assess whether
modern firearms regulations are consistent with the Second
Amendment’s text and historical understanding.” Id. at 17.
However, although “[h]istorical analysis can be difficult”
and, at times, it requires “nuanced judgments about which
evidence to consult and how to interpret it,” the analysis in
this case is simple under the binding precedent set forth in
Bruen. Id. at 16 (quoting McDonald v. Chicago, 561 U.S.
742, 803–04 (2010) (Scalia, J., concurring)).
The three-judge panel undertook a thorough textual and
historical inquiry the first time we heard this case, see Young,
896 F.3d at 1052, but we need not conduct the same inquiry
now because the Supreme Court has already done it for us.
In Bruen, the Court considered the constitutionality of
“proper-cause” statutes such as that enacted by Hawaii. See
Slip Op. at 5–6 (identifying the Hawaii law at issue in this
case as analogous to the New York law at issue in Bruen).
Accordingly, the Supreme Court parsed the text of the Second
Amendment and evaluated at great length “whether
‘historical precedent’ from before, during, and after the
founding evinces a comparable tradition of regulation” to
“proper-cause” laws. Id. at 18; see id. at 23–62. After
thorough review, the Court concluded that neither text nor
historical precedent support “proper-cause” language
restrictions.
10 YOUNG V. STATE OF HAWAII
1
As with the petitioners in Bruen, Young is an “ordinary,
law-abiding, adult citizen[],” and is therefore unequivocally
“part of ‘the people’ whom the Second Amendment protects.”
Id. at 23. As the Court observed in Bruen, “handguns are
weapons ‘in common use’ today for self-defense.” Id. And
the plain text of the Second Amendment contemplates not
just the “keeping” of arms in the home, but also the
“bear[ing] of arms” beyond it. Id. at 23–24. Therefore, as
with the petitioners in Bruen, “[t]he Second Amendment’s
plain text thus presumptively guarantees” to Young “a right
to ‘bear’ arms in public for self-defense.” Id. at 24.
2
Because “the Constitution presumptively protects”
Young’s right to carry arms in public for self-defense, Hawaii
“must . . . justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm
regulation.” Id. at 15. Put differently: since the Second
Amendment guarantees to the people “a general right to
public carry,” the constitutionality of section 134-9 hinges on
whether there was at the time of the ratification of the Second
Amendment or the Fourteenth Amendment “a tradition of
broadly prohibiting the public carry of commonly used
firearms for self-defense.” Id. at 24, 29–30. The government
has the burden to show such a tradition. Id. at 15.
But Hawaii cannot meet its burden, because, as the
Supreme Court held in Bruen, there was no such tradition. Id.
at 29–30. Nor was there a “historical tradition limiting public
carry only to those law-abiding citizens who demonstrate a
special need for self-defense.” Id. at 30. Historical
YOUNG V. STATE OF HAWAII 11
restrictions on public carry may have “limited the intent for
which one could carry arms, the manner by which one carried
arms, or the exceptional circumstances under which one
could not carry arms.” Id. at 62. But such valid historical
exceptions are quite the opposite of section 134-9, which flips
the presumption by limiting public carry licenses to “an
exceptional case.”
A law-abiding citizen need not demonstrate a special need
to exercise his or her right to carry arms in public for self-
defense. Id. But like the New York law at issue in Bruen,
section 134-9 requires ordinary citizens like Young to
demonstrate an exceptional reason to obtain a public carry
permit. Thus, section 134-9 violates the Fourteenth
Amendment by “prevent[ing] law-abiding citizens with
ordinary self-defense needs from exercising their right to
keep and bear arms.” See id. at 63. Bruen admits of no other
conclusion.
III
The Second Amendment “‘elevates above all other
interests the right of law-abiding, responsible citizens to use
arms’ for self-defense.” Id. at 17 (quoting District of
Columbia v. Heller, 554 U.S. 570, 653 (2008)). The Supreme
Court has thus admonished the lower courts that this right
“demands our unqualified deference.” Bruen, Slip. Op. at 17.
But “may-issue” permitting schemes violate this Second
Amendment right. Like all such schemes, Hawaii’s “may-
issue” permitting law, section 134-9, infringes the right of
Young, a law-abiding responsible citizen, to carry a handgun
in public for the purpose of self-defense. Young has indeed
stated a claim that section 134-9 violates the Fourteenth
12 YOUNG V. STATE OF HAWAII
Amendment by depriving him of the right protected by the
Second Amendment.
Our Court should say so. We are bound, now, by Bruen,
so there is no good reason why we could not issue a narrow,
unanimous opinion in this case. The traditional justifications
for remand are absent here. The issue before us is purely
legal, and not one that requires further factual development.
The majority does not explain, nor can it justify, its decision
to remand this case to the district court without any guidance.
Yet in its terse order and unwritten opinion, the majority
seems to reveal a hidden rule in our Circuit: Second
Amendment claims are not to be taken seriously. I would
prefer to apply the binding decisions of the Supreme Court to
the case at hand.
Instead of remanding without explanation or justification,
we should reverse the district court in an opinion holding that
Young has stated a claim upon which relief may be granted,
that section 134-9 is unconstitutional, and that the case must
proceed accordingly in district court. If we issued such an
opinion, we would ensure that Bruen is applied uniformly in
our Circuit in future cases. And in this case, we would save
the parties and the district court the time and expense of
continuing to litigate issues that we could resolve easily.
Today we shy away from our obligations to answer the
straightforward legal questions presented on appeal and to
provide guidance to the lower courts in our Circuit. And in
doing so, we waste judicial resources by sending the parties
back to square one at the district court. The parties have
waited a decade to resolve this litigation, and Young has
waited over ten years to exercise his constitutional right to
carry a handgun in public for self-defense. Because we opt
YOUNG V. STATE OF HAWAII 13
not to decide this simple case, we force Young to wait even
longer.
Someday, Young will finally be vindicated. Someday,
our Court must issue an opinion that respects the rights
enshrined in the Second Amendment.
Until then: I respectfully dissent.