Hawaii lost in court. The case involved open carry. Hawaii doesn’t allow it, but the Ninth Circuit Court of Appeals disagreed. Hawaii lost, and it was a massive blow to the anti-gun state. Gun rights activists throughout the nation rejoiced.
It seems that the Aloha State is far from finished with this case, however.
State and local officials last week filed a 114-page request to overturn the decision of a three-judge panel of the U.S. 9th Circuit and send the case before a larger 11-judge en banc panel for a retrial. At stake is Hawaii’s ability to keep its strict limits on the unconcealed carry of firearms in public, which a two-judge majority found in July was unconstitutional.
“The importance of this case is beyond dispute,” argues Hawaii officials in the filing. “The panel struck down carry restrictions that have been in effect in Hawaii in some form for over 150 years. In doing so, it overruled a sovereign State’s judgment on a matter of the utmost concern to public safety. And it did so on the basis of a severe misunderstanding of state law.”
The case involves George Young, whose repeated attempts to obtain a permit going back as far as 2011 were rebuffed in a state where it is notoriously hard to be granted a carry permit of any sort. Young held that his denial of an application for a handgun license stepped on his Second Amendment rights to carry a loaded firearm openly for self-defense outside of the home and the panel agreed. Hawaii law narrowly allows the ability to open carry to a select few — such as security guards — which the state supported in arguments earlier this year. This, the majority held, was just plain wrong.
However, in a 10-page opinion, delivered last week by Hawaii Attorney General Robert Suzuki to Lt. Gov. Douglas Chin, the state’s top lawyer said state law does not limit “unconcealed carry licenses” to just private security officers, and that police chiefs can grant such licenses to those who meet certain standards.
That last paragraph is interesting.
You see, the law may allow, but if it doesn’t happen, then gun owners are still limited by law. When you give a bureaucrat the power to say “yes” or “no” to exercising a right, and that bureaucrat says nothing but “no,” can you claim a person’s right isn’t being infringed?
This is an important question, and if Suzuki’s claim is right, then that makes this case even more important.
One routine concern many gun rights activists express is the idea of the law theoretically permitting citizens to carry guns, but in practice, it almost never happens. This isn’t a hypothetical case, either. We routinely see this happening in places like New York City where the average citizen can’t get a firearm legally. It also occurs in California where many responsible for issuing permits don’t issue many at all. Let’s also not forget New Jersey where many gun owners find that their reasons to want a concealed carry permit are insufficient to sway the people who make the decision on who gets to carry.
In other words, no one can claim this doesn’t happen.
Honestly, this is perhaps a bigger problem than a law that forbids open carry. A law like that is unconstitutional on its surface, and everyone knows it.
But with a case where the law technically allows it, where it’s virtually impossible to get the necessary permit, things get murkier. While folks like myself generally don’t see it as murky in the least–the phrase “shall not be infringed” makes it clear, at least in my mind–we’re not the majority. For others, they accept that the government can limit gun rights, and this looks like a limit.
At least, on the surface. When it looks like a limit but is a de facto ban, that complicates things.
I still believe Hawaii’s restrictions are unconstitutional and need to be smacked down, but now we get to watch as they waste taxpayer money in an effort to continue this battle.