The Volokh Conspiracy
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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.