Guns

Two Hawaii Gun Regulations Struck Down

The laws require that “individuals purchase a handgun ... within 10 days of obtaining a permit to acquire” (Hawaii law requires such a permit) and that “individuals physically bring their firearm to the police department for in-person inspection and registration within five days of acquiring it.”

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From Yukutake v. Connors, decided today by Judge J. Michael Seabright (D. Haw.):

Hawaii Revised Statutes … § 134-2(e), requires, in relevant part, that individuals purchase a handgun (i.e., a pistol or revolver) within 10 days of obtaining a permit to acquire…. HRS § 134-3(c), requires, in relevant part, that individuals physically bring their firearm to the police department for in-person inspection and registration within five days of acquiring  it….

The challenged provisions in both HRS § 134-2(e) and HRS § 134- 3(c) are not longstanding and impose only a moderate burden on the right to bear arms. As such, both provisions are subject to intermediate scrutiny. And because the Government has entirely failed to demonstrate how each law effectuates its asserted interest in public safety, neither law can pass constitutional muster under this standard of review.

The nature and quantity of the showing required by the government [under intermediate scrutiny] "will vary up or down with the novelty and plausibility of the justification raised." To meet its burden, the government may resort to a wide range of sources, including "legislative text and history, empirical evidence, case law, and common sense, as circumstances and context require." But "the government must present more than anecdote and supposition." Courts owe substantial deference to a legislature's policy judgments; their "sole obligation is to assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence."

The Government has not met its burden here. Defendant states that the 10-day permit use period furthers the "important government interest" of public safety "in that such requirements provide more effective supervision and control over the sale, transfer, and possession of firearms." It is "self-evident" that public safety is a substantial and important government interest. But Defendant has failed to demonstrate how the 10-day permit use period furthers that interest.

To begin, the Government does not show that the legislature considered any evidence—let alone substantial evidence—prior to enacting the law. The Government cites only to legislative history that pronounces the public safety purpose of gun regulation generally, but provides no legislative history addressing why HRS § 134-2(e)'s 10-day permit use period, in particular, was enacted. The Government also fails to provide any legislative history addressing what evidence the legislature considered prior to enacting that requirement. Likewise, the Government provides no empirical evidence or case law suggesting that a 10-day permit use period would enhance public safety. Indeed, as the Government conceded during oral argument, its arguments boil down to simple "common sense."

The Government's primary common-sense argument is that a short expiry period is necessary to ensure that the information provided when an individual applies for a permit to acquire a specific handgun remains accurate when that person acquires that gun…. [T]he 10-day permit use period minimizes the probability that any changes—disqualifying or otherwise—will occur between the time that the permit issues and the time that the applicant makes use of that permit to purchase a gun.

But the Government makes no effort to explain how this promotes public safety—that is, why the law is a reasonable fit to its asserted objective. In absence of an explanation, the court's best guess as to the Government's reasoning is that the law ensures that individuals do not make use of a permit to acquire after they become disqualified from owning a gun. But that this promotes public safety is not a common-sense conclusion. In fact, the opposite could be true. By shortening the permit use period to reduce the likelihood that disqualifying changes occur before the applicant obtains the handgun, the law arguably increases the likelihood that individuals will already be in possession of a gun should a disqualifying change occur. This outcome could negatively impact public safety by increasing the probability that unqualified individuals may be in possession of guns. Of course, in the absence of any evidence addressing the effect of the law on public safety, this is mere conjecture. Nevertheless, this conjecture demonstrates that it is not a simple matter of common sense that the 10-day permit use period promotes public safety. Finally, it is worth noting that if it really were common sense that a 10-day permit use period promoted public safety, Hawaii likely would not be the only state in the nation to maintain such a restrictive requirement.

The Government has failed to show that there is a reasonable fit between their stated objective of promoting public safety and the 10-day permit use period imposed by HRS § 134-2(e). The 10-day permit use period for handguns does not survive intermediate scrutiny….

[As to the 5-day inspection period requirement], the Government [again] wholly fails to demonstrate how the in-person inspection and registration requirement furthers these interests. It merely states that "ensuring that the registration information is accurate, ensuring that the firearm complies with Hawaii law, and confirming the identity of the firearm can be easily accomplished simply by bringing the firearm to the registration for inspection."

This bald statement is not enough to meet the Government's burden. "To survive intermediate scrutiny, the defendants must show 'reasonable inferences based on substantial evidence' that the statutes are substantially related to the governmental interest." Here, the Government has provided no evidence whatsoever in support of its position. The Government has provided no legislative history speaking to the legislature's reasons for amending the statute. It has not shown that inaccurate registration was a problem affecting public safety (or even a problem at all) prior to enactment of the 2020 in-person inspection and registration requirement, nor has it provided any studies, examples from other jurisdictions, or any other type of evidence suggesting that an in-person inspection and registration requirement would ameliorate such a problem.

In absence of concrete evidence, the only support that the Government offers is conjecture. Defendant asserts that in-person inspection and registration promotes public safety by requiring that the police directly inspect the serial number on the gun itself, rather than the number as reported by the buyer and (separately) by the seller on the permit. Specifically, the Government speculates that "[s]ome people might innocently make mistakes in transcribing serial numbers or other identifying information" or may be unaware that their gun's identifying marks or other attributes have been impermissibly altered. And, the Government hypothesizes, individuals may not be aware of these errors or inconsistencies until they bring their firearm to the police station to have it physically inspected. But this hypothetical falls short under intermediate scrutiny. To meet its burden, the Government must "present some meaningful evidence, not mere assertions, to justify its predictive judgments."

Thus, it once again appears that the Government's only permissible argument is that common sense shows the law is reasonably related to its interest in promoting public safety. But the notion that in-person inspection and registration promotes public safety is not a matter of common sense. First, as stated above, in the absence of any evidence to that end, it is not a common-sense conclusion that mistakes in registration were a problem prior to enactment of the  in-person inspection and registration requirement. Indeed, there is redundancy built into the registration process even without the in-person requirement—both the firearm seller and buyer must provide the serial number and other identifying information about the firearm. As Plaintiffs point out, "it strains credulity that both a firearms store and a buyer would both fail to properly transcribe numbers or realize" that the gun has been impermissibly altered.

Second, as the D.C. Circuit pointed out in Heller v. District of Columbia (D.C. Cir. 2015), requiring individuals to bring firearms into the police station for in-person inspection and registration may "more likely be a threat to public safety [because] there is a risk that the gun may be stolen en route or that the would-be registrant may be arrested or even shot by a police officer seeing a 'man with a gun.'" While these possibilities—like the Government's hypothetical about mistaken transcription—are no more than conjecture, they demonstrate that it is not a simple matter of common sense that in-person inspection and registration promotes public safety.

Finally, it is again worth noting that Hawaii is the only state in the country to require in-person inspection and registration of firearms. As in the case of the 10-day permit use period, if it were truly a matter of common sense that in-person inspection and registration promoted public safety—or that misidentification in the absence of in-person inspection and registration was a problem—one would expect additional states to maintain similar requirements. The Government has failed to show that the in-person inspection and registration requirement is reasonably tailored to a significant, substantial, or important government interest. HRS § 134-3(c)'s in-person inspection and registration requirement does not survive intermediate scrutiny.

Congratulations to Alan Beck and Stephen D. Stamboulieh, who represented the challengers.

NEXT: 30K-Follower TikToker Jailed for Violating "Stop Talking About Petitioner" Restraining Order

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  1. Maybe this one will stick and not get appealed. We can only hope.

    On the topic of gun control, within 24 hours the Taliban started confiscating weapons.
    https://www.reuters.com/article/afghanistan-conflict-arms/taliban-in-afghan-capital-kabul-start-collecting-weapons-from-civilians-idUSL1N2PN0KR

    Women don’t need those rifles for personal protection, so sayeth the Taliban.

    1. Taliban. Democrats. All same same.

      1. The only thing those two group have in common is that they know how easy it is to rule over sheep who wont fight back.

        1. Is that why clingers are uncompetitive in the culture war? You’re all sheep, with the associated level of intelligence?

          In any event, your betters thank you for being so easy to defeat.

          1. The Taliban literally said they were going to try to be diverse. I wonder how that will impact child sex slave operations. Nevermind, it will make you have a warm and fuzzy.

          2. What a good job the feminists did, electing Biden. Twelve year old girls will now be taken from 6th grade to become the sex slaves of 60 year old, stinky Taliban. Those people do not have toilet paper. Artie should be proud of this culture war victory.

            What’s next on the Biden agenda? The surrender of Taiwan.

            Then comes a major terror attack on the US.

          3. Your obsession with the idea of being “better” than others speaks volumes about you.

            It means, with about 90 per cent certainty, that you’re a loser in the real world, and only marginally “better” than a skid row bum.

            Now pipe down, kiddo, the adults are trying to talk.

      2. Next for the traitor filth, Biden? The surrender of Taiwan.

        1. Trump set the withdrawal date.

          1. Trump set the withdrawal date at May 1. Biden violated that agreement. The Taliban controlled substantially less of Afghanistan when he cancelled it and they, rationally, were outraged. He then gave them six plus months to increase their control of the country. Further, he took no steps to prepare for the withdrawal. Tpfinally, he is the President and the Buck Stops There,

          2. Whatever Trump did, I’ll tell you what he didn’t do, he wasn’t the one that executed the withdrawal.

            Biden has shown he is fully capable of reversing Trump’s policies when he wants to. Trump never showed this level of incompetence at anything other than picking FBI director’s and chief of staffs. And Biden certainly topped him there with his VP pick.

            1. Whining, disaffected, desperate, they-know-they-are-beaten clingers are among my favorite culture war casualties.

              1. Ah, yes, the empty ad hominem. Last refuge of someone who has nothing of substance to say.

              2. After the surrender of Taiwan, comes a major terror attack on the US, from Afghanistan. Then, Artie goes to a camp for wokies. The hierarchy of the wokies gets a trial and a bullet. Most are rent seeking lawyers. You will be rounded up, lawyers, you will be tried an hour. You will be shot in the court basement.

              3. I guess those 9 million new first time gun owners (that I guess became “Insta-Clingers” didn’t get the message that they are already beaten.

                Maybe they’re all just too busy having fun at the range, to check their Artie-Mail? But cheer up you clueless dork, maybe the next few million will?

          3. Bzzt, wrong

            1: Trump set an entirely different date
            2: The Biden Admin has had no problem at all throwing out or ignoring Trump Admin policies they didn’t like (see: the US Southern border)

            The Biden Admin did this. they own it. They made multiple predictions abotu what would happen because of their policy. Their policy failed

            Biden and the Democrats own that failure, 100%

            1. They also own most of the media, which means not having to own anything else.

          4. Five year olds who watch Sesame Street learn the phrase, “One thing is not like the others.” Two administrations can have the same goal, but that doesn’t mean in the least that the planning and successful execution of those plans are remotely similar. This should not need to be explained to an adult.

            1. The people spouting this know there is a difference. It’s all spin, perhaps in the hope of persuading the naive or those with little interest.

              1. When Leon Panetta calls Afghanistan a ‘Bay of Pigs’ moment for Biden… you know its really bad.

                1. Except Kennedy is still considered a great president. Biden thinks this won’t hurt him, long run.

                  1. For very loose definitions of “long run”. Biden is 80.

                  2. People who don’t follow history think Kennedy was a great President, because he got killed before he was quite able to start a nuclear war or get caught on film shooting up in the White House while partying with hookers. Then “Don’t speak ill of the dead” cemented his rep.

                    Biden is going to have to die quite soon to be half as lucky. If he just fades into undeniable senility he’s toast.

                  3. Panetta’s point was that Kennedy took ownership of his failure Biden did not.

                    1. I loved his “Statesman” like “The buck stops with me…” speech … where he then proceeded to blame everyone else including everyone except Corn Pop for his massive “Cluster Flop”. Sadly, Joe never learned that it’s all about “Deeds not Words”.

                      Frankly, I’m stunned that the media, that worked so hard to put Joe in office, actually showed the videos of the plane disaster and the helicopters hauling away the embassy staff.

                      I guess the Pentagon sent the same team to train the Afghani Military that they used to train the ARVN to hold off the North Vietnamese so effectively. Lather, Rinse, Repeat.

                    2. “Frankly, I’m stunned that the media, that worked so hard to put Joe in office, actually showed the videos of the plane disaster and the helicopters hauling away the embassy staff.”

                      Turns out that your pre-conceived notions of ‘the media’ aren’t true at all. Who could’ve predicted such a thing?!

                    3. You shouldn’t be surprised. Biden was just a tool to get rid of Trump, they don’t value him for himself.

                      I really doubt that Biden is going to last out his first term. They’ll probably end up invoking the 25th amendment, and replace him with Harris. Just wait until a bit past the halfway point, if Biden can keep it together that long, so that Harris still qualifies for two terms.

          5. “Trump set the withdrawal date.”

            If you guys really want the buck to stop with Trump, you should push to get him reinstated.

    2. Removing weapons from civilians is a classic move from authoritarian governments. It makes it much harder for the civilians to fight back when further rights are stripped and further abuses are heaped upon them.

      Even when its done for the “best of intentions” stripping rights like these often has a way of coming back to haunt you. Like stripping freedom of speech for “just” hate speech. Or removing religious protections for “just the bad ones”. Or removing legal protections for “just the bad people”….

      Time and time and time again, its been seen to be a slope that is turned around towards the path to autocratic regimes.

      Often a minor power can get away with stripping one or two of these rights, so long as there’s a major power keeping it in line. But if the major power strips the rights…then its downhill from there.

      1. Removing weapons from civilians is a classic move from authoritarian governments

        Also like, the UK and Australia and a lot of Europe.

        So maybe slow your roll one that slope.

        1. Yeah, the UK, Australia, and a lot of Europe, have authoritarian governments. Authoritarian governments are the rule, not the exception, sadly.

          1. Indeed. Australia has been hit by creeping authoritarianism, pretty stunningly.

            Imagine New York simply suspending its legislature for months…or longer. That’s what Victoria has done with its parliament. Just…not meeting. Due to the emergency.

            https://www.brookings.edu/articles/the-risks-to-australias-democracy/

        2. “Often a minor power can get away with stripping one or two of these rights, so long as there’s a major power keeping it in line. But if the major power strips the rights…then its downhill from there.”

          1. What if the three major-ist powers all do it?
            (USA, Communist Chine, Russia)

            1. Then you get into an unfree world, where rights are stripped and the people are oppressed.

        3. I love when your own smug argument is so easily discredited.

          All of those places lock people up for insulting special groups. Case closed.

        4. Apparently the distance from kneejerk to own-goal is not far.

  2. So many regulations amount to nothing more than Jim Crow for guns. If you can’t ban a constitutional right, you can make its exercise so difficult and expensive it accomplishes mostly the same thing.

    With guns there’s virtually no limit to the taxes or fees that can be tacked on. You don’t see this with any other enumerated right.

    1. No matter what the Supreme Court rules in the fall on NYSPA, the Democrat Party states have shown that they’ll always impose the maximum gun restrictions that the courts will let them get away with it. They’ll never actually respect the right.

      Of course, all of this comes down to there being no consequences to passing unconstitutional laws. Now that the 10 day is period has been ruled unconstitutional, they’ll be back with a 15 day

    2. How are minorities going to be able to comply with all this? Getting an ID is nearly impossible for them and this is much more difficult.

  3. The obvious purpose is not public safety but harassment of law abiding gun owners.

    Seems to me to also not be in the governments interest to require a permission slip (permit, license, etc) for an non prohibited person to acquire something they have a right “keep and bear” But then I guess that wasn’t in this case.

    1. That’s the purpose of all gun laws. That’s why they don’t actually prosecute gun crimes (including lying on the 4473) because it would target mostly black criminals, and black criminals and their “families,” people like Stacey Abrams, are essential parts of the Democrat Party base.

  4. Finally a Hawaiian judge gets something right.

    1. How long before an appeals court blocks it?

  5. Intermediate scrutiny. What a concept.
    Can’t wait for the next level of scrutiny.
    What do you think it will be?

    1. This scrutiny shit is meaningless lawyer gibberish for personal feelings, self interest, bias. It has no physical reality. It is fictitious garbage. Can Volokh, just once, acknowledge the physical world outside of lawyer made up shit?

      1. Monkey business with scrutiny, watering it down to rational basis, is the primary mechanism the 9th circuit uses to dance around any second amendment claims compelled by Heller. Until the supreme Court specifies strict scrutiny, you can expect that monkey business to continue. The conservatives on the court know this.

        That’s why I think the next second amendment case the supreme Court takes will clearly delineate the strict scrutiny. The court doesn’t have the balls to strike down Marquee gun control like assault weapons bans like Heller demands they do. What they will do is specify strict scrutiny and then expect the lower courts to apply it to strike it down for them.

        When it comes to the second amendment scrutiny is everything.

    2. There should only be one level of scrutiny: “Just comply with it, already”.

    3. “Double secret probation scrutiny.”
      Wait, we already have a FISA court.

  6. And the people rejoiced..

    1. Presumably, a majority of Hawaiians voted for the (Democratic) legislators who put these regulations in place. Maybe they like having their constitutional rights abridged…

      1. Which is why they are called “rights” so that the majority cannot abridge them.

      2. So if the Texas legislator passes a law banning abortion or LGBT rights that makes it okay because they represent the majority? Or does checks and balances only apply to your side.

        Courts exist so the minority has a place to redress their oppression by the majority. Tyranny of the majority is very much still a thing, and is a big reason why the filibuster still exists, it’s the primary reason why the Bill of Rights exists, it’s the very reason the Constitution is built around checks and balances, limiting the excesses of the majority is in America’s governmental DNA.

        1. The difference is that you can actually find this right in the Constitution, rather than imaginary emanations and penumbras.

          But, yes, IF abortion actually was a right guaranteed by the Constitution, the majority couldn’t vote to infringe it.

        2. Leftists think the only rights that are important are killing babies and penetrating other men’s butts.

      3. The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights, may not be submitted to vote; they depend on the outcome of no elections.”
        —SUPREME COURT OF THE US, WV BOARD OF EDUCATION V. BARNETTE,
        319 US 624 AT 638

        A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.
        –SUPREME COURT OF THE US, WESTBROOK V. MIHALY, 2 CAL 3D 756

        Hain’t we got all the fools in town on our side? And hain’t that a big enough majority in any town?
        –HUCKLEBERRY FINN

  7. Good news, thanks. My only quibble is with the court’s notion along the line of, “If this was a good idea, someone else would have done it already.”

    I can be a pesky customer letting a business know when I’m not satisfied with a product or service. It’s not unusual for a response like “nobody has complained about this before.”

    My practiced response, “I don’t mind being first” which is a simple reminder that the absence of a precedent doesn’t invalidate the action.

    1. But the court’s argument isn’t just ‘no one else is doing it’. It’s ‘if it was such a good idea, either someone else would already be doing it, or you’d have specific evidence of a problem that it would directly solve’. Relying on common sense implies tons of people are already doing that, because they all came to the same conclusion.

    2. The inverse of this argument is where people claim that a practice must be constitutional because there’s no contrary case law.

      Because nobody previously had the cast iron gall to attempt the practice and get shut down…

      1. I practice in open records law where, in my state, the rule is that access is presumed and it’s the burden of the custodian to prove that any exception applies. I still constantly run into custodians who try to tell me or my clients or courts “there’s no law on point requiring me to turn over THIS exact kind of record.

    3. The point of common sense is that it’s common. If no one else is doing it, then it’s not common, it’s unusual. It may still be right, but you can’t use “common sense” as the argument to promote it. They had no argument or evidence other than common sense, which is why the point that no one else is doing it is relevant.

      1. “Common sense” means “we didn’t do the homework and just pulled it out of our ass.”

        “Common sense” gave us geocentrism, flat earth, and pantheons.

  8. What a strange law. It’s like a reverse-waiting period law. Rather than a “cooling off” period (which arguably benefits public safety), you are given a deadline to purchase a firearm. The real purpose of such laws, whatever the pretext may be, is to dissuade people from purchasing firearms by making it a hassle to do so.

    1. They don’t want people just filing the paperwork in anticipation that they might want to promptly buy a gun some time down the road. The goal is that the paperwork inconveniences you, there can be no work-around to avoid that.

    2. New Jersey has a similar law, but you have to use it within 90 days. But, you can only buy one handgun every 30 days. So if you buy three permits, you have to time it perfectly.

      It’s designed to harass. Nothing more, nothing else.

      Leftists should be gassed.

    3. having followed this case for some time, it might help understand WHY they enacted this law: there is only one police department where this papwerwork can be obtained, and where the gun must be brought for inspection, and their hours are VERY limited. that means two things: one must miss work if they ve a “regular hours” job, and when they ARE open the office is very crowded. I think it takes, all in, some four different trips to the police department before yuo can walk home wiht yuor new gun, free of further beisance requreiemnts. THIS is what prmopted the lawsuit. The actual process is not clear from the mere legal pwperwor requiremtns, It was, from the git go, a tool to make it as close to impossible to complete as was possible to do.

      Hawaii is a beautifulplace, but no way would I ever LIVE there, and in fact I’ve never even visited. Last I heard one had to book their flight, ANd two weeks in ahtel for the quarantine they were near certain to impose upon you. Their thinking is antithetical to normal lifr.

  9. Hey, remember when this site used to actually be a law blog, and a post about a court decision might actually result in a discussion of the decision, rather than immediately becoming deranged partisan sniping?

    1. As a gun law, it IS deranged partisan sniping.

      1. Those are English words, but they do not have any coherent meaning in the order used.

        1. Oh, they make perfect sense. Moreover, there’s a double entendre in there too. Can you see it?

          In short, that comment alone is a reminder why I still come to this blog, which has deteriorated lately. It’s little better than reddit at times.

  10. I’ve bought handguns in Hawaii. One is required to go three times to the Downtown Honolulu police station to do so, and only on work days i.e. take off at least three half days from work in order to comply with the law: first: buy the gun and pay for it, take a form from the gun shop with Make, Model, serial number, caliber to the Downtown police station. Only the downtown police station will do, mind you, and if you don’t live downtown you may have well over an hour drive each way. You will be fingerprinted and you will submit a form asking the chief for permission to buy the gun. Second trip, again only on a work day during work hours: take a half day off from work and drive downtown to pick up your permission slip. It will not be mailed, and if you don’t pick it up on time you will start the process over. Third time: after you give your permission slip to the gun store, pick up your gun and take another half day off from work to return yet again to the downtown police station and show the nice people behind the bullet resistant glass that your gun is the same one for which you already provided make, model, serial number and caliber. Then you can take it directly home where you shall keep it except for driving directly to a gunsmith or firing range. Unloaded, locked in your vehicle is not otherwise legal.

    This is ‘a moderate burden’.

    There are a lot more anti-2nd Amendment laws in effect here, but we needn’t go into them here. Hawaii’s weapons laws, taken as a whole, show clearly that the legislature’s intent is to stamp the Constitution into the mud. Our legislators and the people who vote for them hold the constitution in utter contempt.

    1. I think we should apply the same process to abortion and gay sodomy. Every time a homosexual man wants to penetrate his “husband,” he should have to apply for a similar permit, and it’s only good for one particular night. And if he wants to bareback and spread HIV, he needs a super duper permit.

  11. “HRS § 134-3(c), requires, in relevant part, that individuals physically bring their firearm to the police department for in-person inspection and registration within five days of acquiring it….”

    Meanwhile, requiring in-person voting is a horrendously unacceptable abrogation of one’s rights.

    1. Perhaps a constitutional amendment making a voter registration card a nationwide concealed carry permit?

      1. that is very nearly tne originl intent of the Framers. No physicalcard to vote, no physicalcard to own/use/carry about upon one’s person, store. transport, any firearm one chooses to possess.
        that is what a RIGHT looks like. Today’s dweebs do not get it. Time to “fix” that.

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