The Volokh Conspiracy
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The en banc panel majority (seven judges) ordered today, in Young v. Hawaii:
The Supreme Court vacated the judgment of this Court, 992 F.3d 765, and has remanded this case to us "for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ___ (2022)," Young v. Hawaii, 2022 WL 2347578, at *1 (U.S. 2022). We vacate the judgment of the district court and remand this case to the district court for further proceedings pursuant to the Supreme Court order.
Judge Diarmuid O'Scannlain, joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson, dissented, arguing that the Ninth Circuit should have resolved the question itself:
I respectfully dissent from our failure to resolve the straightforward legal issues presented by this case. The Supreme Court has vacated the judgment of this Court and remanded this case to us "for further consideration in light of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022)." But today, we decline to give further consideration to the question presented to us and we decline even to deal with it.
This case presents the following question: in light of the Supreme Court's decision in Bruen, does Hawaii's "may-issue" permitting scheme violate the Second Amendment right of a responsible law-abiding citizen to carry a firearm for self-defense outside of the home? Bruen held unconstitutional a "may-issue" permitting scheme for public carry of handguns, much like the law challenged in this case. So, after Bruen, the question before us is simple. Nevertheless, our Court today declines to answer it. In refusing to do so, our Court delays the resolution of this case, wastes judicial resources, and fails to provide guidance to the lower courts of our Circuit. As a judge of this Court, I feel obliged to offer such guidance, even if a majority of my colleagues does not….
George Young wishes to carry a firearm for personal self-defense in the State of Hawaii. He twice in 2011 applied for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii's Chief of Police, Harry Kubojiri, because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes ("H.R.S.").
Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. Respecting concealed carry, section 134-9 provides that "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police … may grant a license to an applicant … to carry a pistol or revolver and ammunition therefor concealed on the person." The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is "in the actual performance of his duties or within the area of his assignment."
Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27, and may use those firearms only while "actually engaged" in hunting or target shooting….
Ten years ago, on June 12, 2012, Young filed this suit …. In 2018, a three-judge panel of our Court reversed the district court's dismissal of Young's Second Amendment claim against the County, holding that he "has indeed stated a claim that section 134-9's limitations on the issuance of open carry licenses violate the Second Amendment." … In 2021, sitting en banc, we reached a conclusion different from that of the three-judge panel…. Following its decision in Bruen, the Supreme Court granted Young's petition, vacated our en banc decision, and remanded the case to us for further consideration in light of its opinion….
The Supreme Court in Bruen explicitly overruled the lower courts' two-step test which would apply means-end scrutiny to the Second Amendment. Because "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," we are "bound by the later and controlling authority" of the Supreme Court, and therefore we must "reject the prior circuit opinion[s] as having been effectively overruled." As the Supreme Court just instructed us, "the standard for applying the Second Amendment is as follows: When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" …
In a Second Amendment case, we must "assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." However, although "[h]istorical analysis can be difficult" and, at times, it requires "nuanced judgments about which evidence to consult and how to interpret it," the analysis in this case is simple under the binding precedent set forth in Bruen…. In Bruen, the Court considered the constitutionality of "proper-cause" statutes such as that enacted by Hawaii. Accordingly, the Supreme Court parsed the text of the Second Amendment and evaluated at great length "whether 'historical precedent' from before, during, and after the founding evinces a comparable tradition of regulation" to "proper-cause" laws. After thorough review, the Court concluded that neither text nor historical precedent support "proper-cause" language restrictions….
As with the petitioners in Bruen, Young is an "ordinary, law-abiding, adult citizen[ ]," and is therefore unequivocally "part of 'the people' whom the Second Amendment protects." As the Court observed in Bruen, "handguns are weapons 'in common use' today for self-defense." And the plain text of the Second Amendment contemplates not just the "keeping" of arms in the home, but also the "bear[ing] of arms" beyond it. Therefore, as with the petitioners in Bruen, "[t]he Second Amendment's plain text thus presumptively guarantees" to Young "a right to 'bear' arms in public for self-defense." …
Because "the Constitution presumptively protects" Young's right to carry arms in public for self-defense, Hawaii "must … justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Put differently: since the Second Amendment guarantees to the people "a general right to public carry," the constitutionality of section 134-9 hinges on whether there was at the time of the ratification of the Second Amendment or the Fourteenth Amendment "a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense." The government has the burden to show such a tradition.
But Hawaii cannot meet its burden, because, as the Supreme Court held in Bruen, there was no such tradition. Nor was there a "historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." Historical restrictions on public carry may have "limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms." But such valid historical exceptions are quite the opposite of section 134-9, which flips the presumption by limiting public carry licenses to "an exceptional case."
A law-abiding citizen need not demonstrate a special need to exercise his or her right to carry arms in public for self-defense. But like the New York law at issue in Bruen, section 134-9 requires ordinary citizens like Young to demonstrate an exceptional reason to obtain a public carry permit. Thus, section 134-9 violates the Fourteenth Amendment by "prevent[ing] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." Bruen admits of no other conclusion….
The Second Amendment "'elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense." The Supreme Court has thus admonished the lower courts that this right "demands our unqualified deference." But "may-issue" permitting schemes violate this Second Amendment right. Like all such schemes, Hawaii's "may-issue" permitting law, section 134-9, infringes the right of Young, a law-abiding responsible citizen, to carry a handgun in public for the purpose of self-defense. Young has indeed stated a claim that section 134-9 violates the Fourteenth Amendment by depriving him of the right protected by the Second Amendment.
Our Court should say so. We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand.
Instead of remanding without explanation or justification, we should reverse the district court in an opinion holding that Young has stated a claim upon which relief may be granted, that section 134-9 is unconstitutional, and that the case must proceed accordingly in district court. If we issued such an opinion, we would ensure that Bruen is applied uniformly in our Circuit in future cases. And in this case, we would save the parties and the district court the time and expense of continuing to litigate issues that we could resolve easily.
Today we shy away from our obligations to answer the straightforward legal questions presented on appeal and to provide guidance to the lower courts in our Circuit. And in doing so, we waste judicial resources by sending the parties back to square one at the district court. The parties have waited a decade to resolve this litigation, and Young has waited over ten years to exercise his constitutional right to carry a handgun in public for self-defense. Because we opt not to decide this simple case, we force Young to wait even longer.
Someday, Young will finally be vindicated. Someday, our Court must issue an opinion that respects the rights enshrined in the Second Amendment….