More than three years after the Supreme Court struck down "may issue" carry laws, and more than 18 months after the state of Hawaii adopted its own Bruen-response law, the Hawaii Police Department is finally moving forward with plans to revise its rules for bearing arms, which were crafted nearly thirty years ago.
Though Hawaii was technically a "may issue" state, Hawaii County was essentially a "no-issue" jurisdiction. While things have gotten marginally better since Bruen, the proposed rules don't go nearly far enough to ensure that average citizens can access their Second Amendment rights.
The proposed rules can be found here and here, but I've highlighted a few of the worst abuses below.
For starters, applicants for a Permit to Acquire or a Permit to Carry must report in person to the Hawaii PD, but they can't just show up. Instead, they have to make an appointment, which already creates an artificial delay. Once their application has been submitted (along with a non-refundable fee), the Hawaii police chief will "determine whether the applicant has 'the essential character or temperament necessary to be entrusted with a firearm," by examining:
Information from a health care provider indicating that the person has had suicidal or homicidal thoughts or tendencies within the preceding five years. To allow the Chief to make this determination, the applicant shall provide:
(A) The completed and signed HIPAA compliant authorization for release of all mental health information, including psychiatric, behavioral health, and substance abuse information, from all medical sources, including but not limited to all health care providers, health care plans, clinics, laboratories, pharmacies, medical facilities, other health care providers, and government entities. The applicant shall also complete any forms required by the applicant’s health care provider or relevant government entity forrelease of mental health information;
(2) Statements or actions by the person indicating any dangerous propensity or violent animus toward one or more individuals or groups, including groups based on race, color, national origin, ancestry, sex, gender identity, gender expression, sexual orientation, age, disability, religion, or any other characteristic, and the propensity or animus is of a nature or to an extent that would objectively indicate to a reasonable observer that it would not be in the interest of the public health, safety, or welfare for the person to own, possess, or control a firearm or ammunition. The Chief may consider information provided as part of the application, as well as any other information available to the Hawaiʻi Police Department or the general public, in making this determination; and
(3) Other information that would lead a reasonable, objective observer to conclude that the person presents or would present a danger to the community as a result of acquiring or possessing a firearm or intends or is likely to use a firearm for an unlawful purpose or in an unlawful manner.
This isn't "shall issue" at all, since it gives the chief broad leeway to subjectively determine whether someone is suitable to possess a gun, even if they've passed a background check and have complied with the state's training requirements.
The rule states that the chief will consider "objective factors", but some of those factors are inherently subjective, like "any other specific and articulable indicia that would indicate to a reasonable observer... that the applicant lacks the character or temperament to be entrusted with a firearm; and ny other factors provided by law, giving more weight to incidents that are serious or recent, and less weight to incidents that are minor or occurred in the distant past."
This draconian process, by the way, only allows you to obtain a Permit to Acquire. Applicants have to repeat a similar process if they want to get a concealed carry permit, along with additional training requirements.
The proposed rule also requires every carry applicant to have a Hawaii address, which will prevent any out-of-state visitors from lawfully exercising their right to bear arms. The Ninth Circuit Court of Appeals has already found that Caifornia's ban on non-resident carry likely violates the Second Amendment, but that's not stopping Hawaii from trying to impose an identical restriction.
Even worse, if you want to open carry in Hawaii that also requires a permit, and in that case you must demonstrate an “urgency” or “need” to carry a firearm, as well as being “engaged in the protection of life and property.” The Supreme Court has already explicitly stated that conditioning concealed carry permits on a justifiable need is unconstitutional, so this is nothing more than giving the Court a giant middle finger.
The proposed rule sounds like it would also greatly limit the number of firearm trainers in Hawaii.
Each firearm certification program for permits and each firearm certification program for Licenses shall be led by an instructor verified by the Hawaiʻi Police Department.
... Absent a verification process formalized by the State of Hawaiʻi, the Hawaiʻi Police Department may develop clear and objective criteria to verify qualifications of applicants to become instructors, with verification to be valid for two years. Such clear and objective criteria shall require the applicant to provide evidence of the following:
(3) For applicants seeking verification to provide training for Permits to Acquire, the applicant shall have the required qualifications to teach others regarding mental health, suicide prevention, and domestic violence issues associated with firearms and firearm violence. The applicant shall satisfy at least one of the following:
(A) If the applicant intends to conduct one or more portions of the training, the applicant shall submit evidence of the applicant’s education and experience in each field.
(B) If a physician, psychologist, social worker, or other health care professional licensed in Hawaiʻi and with training and experience in these issues intends to conduct one or more portions of the training, the applicant shall provide the name, contact information, and qualifications of the person conducting each of these portions.
So how much education and experience in mental health, suicide prevention, and domestic violence issues does an firearm instructor have to have before they can be certified? Well, we don't know, because apparently the Hawaii Police Department hasn't yet come up with its supposedly "clear and objective criteria". The fact that the proposed rule suggests physicians, psychologists, social workers, and other "health care professionals" may be brought in to teach those portions of the training is a sign that the vast majority of firearm instructors would be deemed unqualified to do so. The fewer the trainers, the fewer carry permits, which seems to be the goal here.
The only good news is that there are a couple of public hearings coming up in Kailua-Kona and Hilo where gun owners will have three minutes each to voice their objections. Whether that will be enough to persuade or convince the Hawaii PD to go back to the drawing board remains to be seen, but if these proposed rules are put into effect I guarantee these indefensible abuses will be the subject of a federal lawsuit.
