2A advocate predicts Hawaii "sensitive places" bill will be overturned in court

Mark Humphrey

I happen to agree with Andrew Namiki Roberts that the sweeping new restrictions on lawful concealed carry will be ripe for a court challenge just as soon as Gov. Josh Green puts pen to paper and signs SB 1230 into law, but I’m not nearly as optimistic about a quick resolution in favor of Hawaiian gun owners trying to exercise their right to bear arms in self-defense.

The road to overturning any new infringements on the Second Amendment approved by Hawaii’s legislature runs squarely through the Ninth Circuit Court of Appeals, and since the Heller decision was handed down by the Supreme Court in 2008 the appellate court has never found a gun control law unconstitutional; siding with states like California and Hawaii time and time again even when it resulted in some absurdly reasoned opinions. The Ninth Circuit declared in Peruta that the Second Amendment doesn’t protect the right to carry a concealed firearm, for example, and a few years later determined that there’s no right to openly carry a firearm either despite the plain language of the Second Amendment protecting both the right to keep and bear arms in self-defense.

That same hostility towards our Second Amendment rights will likely be on display once again when the inevitable legal challenges to SB 1230 reach the appellate court, though once again we’re talking about some pretty flagrant violations of the rights of residents.

If Senate Bill 1230 becomes law, it would be illegal to carry firearms in what the bill deems “sensitive places,” including government buildings, hospitals, restaurants and bars that serve alcohol, stadiums, movie theaters, concert halls, schools and colleges. The bill is on Gov. Josh Green’s desk after receiving approval from lawmakers last week.

The bill also bans carrying guns at permitted public gatherings or demonstrations for which a permit. Carrying a firearm on a sidewalk adjacent to such a gathering would also be illegal.

“SB 1230 and its companion bills are a knee-jerk reaction to last year’s Supreme Court ruling in NYSRPA Vs. Bruen,” Hawaii Firearms Coalition Director Andrew Namiki Roberts told The Center Square. “As made clear by the legislators in this year’s session, they wanted to pass a bill that was as extreme as they thought they could get away with to subvert the rights of Hawaii’s law-abiding firearms owners.”

The bill would also install stricter requirements for obtaining a concealed carry license and adjust related regulatory fees.

“There are many provisions in the bill that serve no purpose other than to make it harder for people to obtain firearms,” Roberts said. “The biggest concern should be with how obviously unconstitutional much of the bill is. For example, the requirement that someone be a resident of Hawaii to apply for a concealed carry license. This is a clear violation of the Second and Fourteenth Amendments, making it so that visitors and serving military members lose their right to bear arms upon entry to the state.”

Roberts went on to say that the changes to Hawaii’s already-restrictive gun laws “will make it easier to file lawsuits”, and predicts that many of them will “likely go away over the next few years.” As long as the current makeup of the Supreme Court remains in place that’s a pretty safe prediction, but if Democrats are able to gain enough votes in the Senate (and Joe Biden wins another four years in the White House), they’ll pack SCOTUS full of anti-gun justices intent on overturning HellerMcDonald, and Bruen in short order.

If Democrats are thwarted in their plans to weaponize the Court against the Second Amendment, however, Roberts is correct that the gun control measures likely to be signed into law will present SCOTUS with multiple opportunities to weigh in on the scope of our right to keep and bear arms, including the bizarre and untenable status quo that strips us of that right once we cross the borders of the state where we live. My Virginia concealed carry license allows me to lawfully bear arms in 35 states, but my right to bear arms in self-defense disappears completely if I travel to states like New York, New Jersey, Massachusetts, and Maryland. If the Second Amendment isn’t a second-class right, as SCOTUS has said, then why is it utterly negated when I venture into those blue states? My First Amendment rights don’t disappear when I cross the state line. My Fourth Amendment rights remain intact if I were to drive up I-95 and cross over into Maryland, so why should my Second Amendment rights vanish at the border between the two states?

Not only does Hawaii not recognize any out-of-state carry licenses, as Roberts points out SB 1230 would prohibit non-residents from acquiring a Hawaii license as well. That leaves them with absolutely no ability to lawfully bear arms in self-defense, and the courts should quickly toss out the law as a violation of the Second Amendment.

Again though, I have no confidence that the Ninth Circuit will do the right thing when the inevitable lawsuit (or lawsuits) taking on SB 1230 reach the appellate court level. If Hawaii’s laws are going to be wiped off the books it’s going to take action from the highest court in the land, and gun owners are going to have be engaged and involved in the 2024 elections to keep the pro-2A majority in place. If Democrats are able to take over the Court it won’t just be Hawaii’s gun laws we’ll have to worry about, but a complete refutation of our right to keep and bear arms and the criminalization of a fundamental civil right.