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Young vs. Hawaii
Young vs. Hawaii
FOR PUBLICATION
SUMMARY*
Civil Rights
The en banc court first held that the scope of its review
would be limited to Young’s facial challenge to HRS § 134-9.
There was no need to determine whether Hawai‘i County
properly applied § 134-9, because Young did not bring an as-
applied challenge.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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Hawai‘i has not yet denied him the opportunity for appellate
review. Because Young has not actually been denied a
hearing, his procedural due process claim was speculative,
and there was no need to reach it.
COUNSEL
OPINION
TABLE OF CONTENTS
Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927
Act, which was modeled in part on the Uniform Firearms Act,
required a person to obtain a license to carry a “pistol or
revolver concealed upon his person or to carry one elsewhere
than in his home or office.” Id. § 7. Carry licenses could be
issued by the sheriff or a sitting judge after either had
determined that applicant was “suitable . . . to be so licensed.”
Id. An applicant was deemed “suitable” to carry a firearm
upon meeting a citizenship and age requirement and showing
a “good reason to fear an injury to his person or property, or
. . . other proper reason for carrying a pistol or revolver.” Id.
1
This non-exhaustive list included: (1) a victim of domestic abuse
whose former spouse has violated protective orders; (2) a victim of
stalking with credible threats of bodily harm; and (3) a witness to a crime
who has received credible threats to her safety. Att’y Gen. Letter at 8.
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2
Young has filed two prior actions. See Young v. Hawai‘i, 73 Fed.
R. Serv. 3d 1635 (D. Haw. 2009); Young v. Hawai‘i, 548 F. Supp. 2d 1151
(D. Haw. 2008). Both actions were dismissed.
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3
In the district court, Young argued that § 134-9 violated the Bill of
Attainder Clause, the Contracts Clause, the Ninth Amendment, and the
Privileges or Immunities Clause. He has abandoned those claims on
appeal.
guns, HRS § 134-16; switchblades, id. § 134-52; and butterfly knives, id.
§ 134-53. He also argued that Hawai‘i prohibits the carrying of rifles and
shotguns publicly, id. § 134-23, § 134-24, in violation of the Second
Amendment. He did not raise these arguments in his supplemental
briefing after we granted en banc review. Because Young did not raise
these arguments properly before the district court, we deem them forfeited.
4
The district court dismissed the State of Hawai‘i, the governor, and
the attorney general as defendants. Young, 911 F. Supp. 2d at 983. Young
does not challenge that ruling, but has pressed his claims against the
County of Hawai‘i, the mayor and the chief of police. The State has
appeared as amicus, not as a party to the appeal. For convenience,
because this is a facial challenge to a Hawai‘i statute, we will refer to the
State as the party; in fact the remaining defendants are the County of
Hawai‘i and its officials charged with following state law.
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toto, barring all further actions under it, in this, and every
other case,’” but an as-applied challenge is “wholly fact
dependent: Do the determinative facts shown by the evidence
fall on the protected side of the applicable rule of
constitutional privilege?”) (footnote and citation omitted).
Because a facial challenge is directed to the legislature, the
plaintiff must show that “no set of circumstances exists under
which the [statute] would be valid,” Hotel & Motel Ass’n of
Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir.
2003) (citing Salerno, 481 U.S. at 745) (alteration in
original), and our review of the Hawai‘i statute would be
limited to the text of the statute itself. Calvary Chapel Bible
Fellowship v. County of Riverside, 948 F.3d 1172, 1177 (9th
Cir. 2020). On the other hand, if Young raised and preserved
an as-applied challenge to the Hawai‘i law, our review would
include the circumstances surrounding the chief of police’s
decision to deny Young a license. See id.
5
We agree with Judge Nelson that Young was not required to seek
reconsideration to preserve his claims for appeal. See R. Nelson Dissent
at 205. We merely note that Young did not raise the issue of his allegedly
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1. Heller
arms that did not depend on militia service, the Court did not
undertake to explain how far the protection to bear arms
extended. That is, Heller was not an “exhaustive historical
analysis . . . of the full scope of the Second Amendment.” Id.
at 626. The Court acknowledged that the right to keep and
bear arms, “[l]ike most rights, . . . [is] not unlimited,” and that
it is not a right to “carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” Id. Heller
recognized that the Second Amendment necessarily accepted
certain “longstanding prohibitions” on the possession of
firearms; such restrictions are “presumptively lawful.” Id.
at 626–27, 627 n.26. Although the Court declined to create
an exhaustive list of such longstanding prohibitions, it
identified three classes of lawful prohibitions: bans on
possession by felons and the mentally ill; bans on possession
in sensitive places; and regulations on the commercial sale of
firearms. Id. at 626–27. The Court also determined that the
Second Amendment only protected weapons in “common
use,” id. at 627, including the handgun, which Heller called
the “quintessential self-defense weapon.” Id. at 629.
7
Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965
Sup. Ct. Rev. 119, 122 n.13 (“By ‘law-office history,’ I mean the selection
of data favorable to the position being advanced without regard to or
concern for contradictory data or proper evaluation of the relevance of the
data proffered.”).
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L.J. 61, 67 (2018). But its effects were more wide ranging
than a mere public-arms prohibition. The Statute of
Northampton “was to have long-term importance for the
maintenance of law and order” in the realm, by helping keep
the king’s peace. See Anthony Verduyn, The Politics of Law
and Order During the Early Years of Edward III, 108 Eng.
Hist. Rev. 842, 850 (1993).8 The statute applied to anyone
8
We have referred generally to the “king’s peace” as a shorthand for
the king’s responsibility to maintain the peace in his domain. But the
notion of the king’s peace evolved in England over time. Originally the
king’s peace covered only those within the king’s castle or household. See
David Feldman, The King’s Peace, the Royal Prerogative and Public
Order: The Roots and Early Development of Binding Over Powers,
47 Cambridge L.J. 101, 105 (1988). Just as the king had his “peace,” so
did others: “the peace of the king was one thing, [but] the peace of the
lord of the manor, the peace of the churches, the peace of the sheriff, [and]
the peace of the homestead, were all quite other things.” A.H.F. Lefroy,
Anglo-Saxon Period of English Law, 26 Yale L.J. 388, 388 (1917). Each
head of household had a “duty to protect his household, and an attack on
any member of the household wronged him.” Feldman, 47 Cambridge
L.J. at 105.
When the king’s justices of the peace tried criminal matters, those
matters were tried as an offense against the king. “In modern pleading [in
the United States], the phrase ‘against the peace of the commonwealth’ or
‘of the people’ is used.” Contra pacem, Black’s Law Dictionary (rev. 4th
ed., 1968). Hence, our cases are charged as an offense against the “United
States” or the “State.”
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9
There is some dispute among historians over the extent to which the
Statute of Northampton was enforced as a broad ban on public carry of
arms. For example, historian Joyce Lee Malcolm argues that the statute,
and other firearms prohibitions, were rarely enforced. She claims that
“[a]lthough men were occasionally indicted for carrying arms to terrorize
their neighbours, the strict prohibition against going armed ‘by Night nor
by Day . . . in Fairs, Markets . . . nor in no part elsewhere’ had never been
enforced.” Joyce Lee Malcolm, To Keep and Bear Arms 104 (1994).
Other historians argue that the lack of indictments under the statute is not
probative of its overall enforcement in fourteenth-century England. See,
e.g., Charles, 60 Clev. St. L. Rev. at 13–16 (identifying several royal
edicts that instructed sheriffs to enforce the Statute of Northampton and
noting that Richard II amended the statute in 1396 but retained the
prohibition on going armed in public).
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10
An “affray” was a “noisy fight . . . in some public place, to the
terror of onlookers.” Affray, Black’s Law Dictionary (10th ed. 2014).
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11
Scholars continue to disagree about the reasons underlying Knight’s
acquittal. There seem to be two current schools of thought. Either the
Statute of Northampton required the prosecution to show that Knight
intended to terrorize others by publicly carrying arms, or Knight was
acquitted by virtue of his aristocratic status. Compare David B. Kopel,
The First Century of Right to Arms Litigation, 14 Geo. J. L. & Pub. Pol’y
127, 135–37 (2016) (“[O]nly malicious, terrifying carry was illegal” under
the statute.), with Saul Cornell, The Right to Keep and Carry Arms in
Anglo-American Law: Preserving Liberty and Keeping the Peace, 80 Law
& Contemp. Probs. 11, 26–27 (2017) (positing that aristocrats were “the
one group expressly exempted from the Statute of Northampton”).
Relying on the former explanation, some scholars have argued that Sir
John Knight’s Case shifted English jurisprudence towards a more
permissive open-carry regime. See Eugene Volokh, The First and Second
Amendments, 109 Colum. L. Rev. Sidebar 97, 101–02 (2009); Kopel,
14 Geo. J. L. & Pub. Pol’y at 137–38. Other scholars are unsurprised by
Knight’s acquittal as he was of the class of Englishman that the Statute of
Northampton would not have reached anyway. See Frassetto, 43 S. Ill. U.
L.J. at 64 & n.15.
12
The development of a system of “surety” was closely related to the
development of the “king’s peace.” There were two types of sureties:
sureties for good behavior and sureties of the peace. Feldman,
47 Cambridge L.J. at 102–03. They had different goals. The surety of
good behavior was “a form of conditional pardon given by the king to
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13
Subsequent royal edicts suggest that merely carrying firearms
caused terror even absent an intent to cause terror. See By the Quenne
Elizabeth I: A Proclamation Against the Carriage of Dags, and for
Reformation of Some Other Great Disorders (London, Christopher
Barker, 1594) (the public carry of arms caused “terrour [to] all people
professing to travel and live peaceably”).
14
The Glorious Revolution overthrew James II, who was Catholic.
In his place William and Mary took the throne. Mary, also known as
Queen Mary II, was James’s daughter, but she was Protestant.
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15
We have not been pointed to any English counterpart for the New
Jersey statute. The closest was a proclamation of King James I that
banned the sale, wearing, or carrying of “Steelets, pocket Daggers, pocket
Dags and Pistols, which are weapons utterly unserviceable for defence,
Militarie practise, or other lawfull use, but odious, and noted Instruments
of murther, and mischiefe.” By the King James I: A Proclamation
Against Steelets, Pocket Daggers, Pocket Dagges and Pistols, reprinted
in 1 Stuart Royal Proclamations 359–60 (James F. Larkin & Paul L.
Hughes eds., 1973). The weapons listed in the proclamation were of
particular concern because they were so easily concealed. See Peruta,
824 F.3d at 931. Nothing in the proclamation or the New Jersey statute,
however, limited the prohibition to concealed carry.
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16
Historical context offers some possible explanations for the tension.
Some colonies’ issuance of carry requirements—especially to church,
public gatherings, and other travel—reflects “adaptation to the realities of
colonial life, especially [considering] the ongoing hostile relationship with
Native Americans.” Cornell, 80 Law & Contemp. Probs. at 28. In
addition to tense relations with Native Americans, southern colonies also
feared the possibility of slave uprisings. Id. South Carolina’s church-
carry mandate expressly acknowledged that risk. 7 Statutes at Large of
South Carolina 418 (requiring parishioners to carry arms to church so that
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South Carolinians “may be the better secured and provided against the
insurrections and other wicked attempts of negroes and other slaves”).
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17
Not all the states adopted such a measure. California, Iowa,
Maryland, Minnesota, New Jersey, and New York have never adopted a
constitutional guarantee to keep and bear arms. And some of the states
did not adopt a guarantee until the twentieth century. Volokh, State
Constitutional Rights, 11 Tex. Rev. L. & Pol. at 193–204. Although
Maryland did not adopt a formal guarantee, the Maryland Declaration of
Rights stated that “the inhabitants of Maryland are entitled to the common
law of England, . . . and to the benefit of such of the English statutes, as
existed at the time of their first emigration.” Md. Decl. of Rights, art. III
(1776).
18
In some respects, the Second Amendment is less important than
state constitutions and laws in helping us determine the scope of any pre-
existing right to keep and bear arms. Congress had no general power over
crime, except in federal enclaves or territories. The Constitution gave
Congress authority over three enumerated crimes: counterfeiting, piracy
and felonies on the high seas, and treason. U.S. Const. art. I, § 8, cls. 6,
10; id. art. III, § 3, cl. 2. Any other authority over crime that Congress
asserts must be tied to an enumerated power—such as the Commerce
Clause—through the Necessary and Proper Clause. Id. art. I, § 8, cl. 18.
See United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (“Under our
federal system, the States possess primary authority for defining and
enforcing the criminal law.”) (quotation marks and citations omitted);
Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion)
(“[T]he administration of criminal justice rests with the States except as
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1. Post-Ratification Restrictions
Congress, acting within the scope of those delegated powers, has created
offenses against the United States.”). Given that relationship between the
federal government and the states, early state constitutions, laws, and
practices may be a more reliable indicator of what we thought the states
could and could not do under the “pre-existing [right]” that we “inherited
from our English ancestors.” Heller, 554 U.S. at 599 (quoting Robertson
v. Baldwin, 165 U.S. 275, 281 (1897)).
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2. Nineteenth-Century Restrictions
19
North Carolina’s Declaration of Rights, adopted in 1776, provided:
“That the people have a right to bear arms, for the defence of the State
. . . .” N.C. Decl. of Rights § XVII (1776).
21
The Tennessee Constitution of 1796 provided: “That the freemen
of this State have a right to keep and to bear [a]rms for their common
defence.” Tenn. Const. of 1796, art. XI, § 26.
22
Maine had adopted a constitution only two years earlier. It
provided: “Every citizen has a right to keep and bear arms for the common
defence; and this right shall never be questioned.” Me. Const. of 1819,
art. I, § 16.
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23
We discuss the details of the Massachusetts surety law in greater
detail, infra at note 40 and accompanying text. We covered the English
practice of requiring a surety of the peace supra at note 12.
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1836 Mass. Acts 750, ch. 134, § 16. The 1836 Massachusetts
statute permitted public carry, but limited it to persons who
could demonstrate their need to carry for the protection of
themselves, their families, or their property. In effect, the
Massachusetts law provided that such weapons could not be
carried in public unless the person so armed could show
“reasonable cause.”
24
The Michigan Constitution of 1835 provided: “Every person has
a right to bear arms for the defense of himself and the State.” Mich.
Const. of 1835, art. I, § 13.
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Minn. Pub. Acts 528, ch. 112, § 18; 1854 Or. Laws 220, ch.
XVI, § 17; 1870 W. Va. Acts 703, ch. CLIII, § 8. The
giveaway was Massachusetts’ distinctive phrase “dirk,
dagger, sword, pistol, or other offensive and dangerous
weapon.” Of these states, only Virginia and West Virginia
did not use the phrase. Instead they simply prohibited the
carrying of “any dangerous or offensive weapon” or of a
“deadly and dangerous weapon,” respectively.
25
The Pennsylvania Constitution of 1790 provided: “The right of
citizens to bear arms in defence of themselves and the State shall not be
questioned.” Pa. Const. of 1790, art. IX, § XXI.
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26
The Texas Constitution of 1869 provided: “Every person shall have
the right to keep and bear arms, in the lawful defence of himself or the
State, under such regulations as the legislature may prescribe.” Tex.
Const. of 1869, art. I, § 13.
27
Idaho was admitted to the Union in 1890. The Idaho Constitution
of 1889 provided: “The people have the right to bear arms for their
security and defence; but the legislature shall regulate the exercise of this
right by law.” Idaho Const. of 1889, art. I, § 11.
28
The Kansas Bill of Rights, adopted in 1859, provided: “The people
have the right to bear arms for their defense and security . . . .” Kan.
Const. of 1859, Bill of Rights § 4.
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29
The Alabama Constitution of 1819 provided: “Every citizen has a
right to bear arms in defence of himself and the State.” Ala. Const. of
1819, art. I, § 23.
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30
The Kentucky Constitution provided: “That the right of the citizens
to bear arms in defence of themselves and the State shall not be
questioned.” Ky. Const. of 1799, art. X, § 23.
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31
The decision, however, is notable for another reason. Prompted by
the decision, Kentucky became the first state to write into its constitution
what had long been implicit: that “the general assembly may pass laws to
prevent persons from carrying concealed arms.” Ky. Const. of 1850, art.
XIII, § 25.
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Id. at 251. Because Nunn had not been charged with carrying
his pistol in secret, the judgment of conviction was reversed.32
See also In re Brickey, 70 P. 609, 609 (Idaho 1902) (holding
unconstitutional under both the state and federal constitutions
a statute prohibiting the carrying of deadly weapons in the
city; suggesting that a statute prohibiting concealed carry
would be constitutional).
32
When Nunn was decided, there was no Georgia provision
concerning the right to keep and bear arms. Following the Civil War, the
Georgia Constitution was revised to read: “A well regulated Militia being
necessary to the security of a free people, the right of the people to keep
and bear arms shall not be infringed; but the General Assembly shall have
power to prescribe by law the manner in which arms may be borne.” Ga.
Const. of 1868, art. I, § XIV. In Hill v. State, 53 Ga. 472 (1874), the
Georgia Supreme Court upheld against a state constitutional challenge a
statute prohibiting the carrying of a pistol or revolver, among other
“deadly weapon[s],” in courts, places of worship, and public gatherings.
Id. at 480–81 (“The manner of bearing arms includes not only the
particular way they may be carried upon the person, that is openly or
secretly, on the shoulder or in the hand, loaded or unloaded, cocked or
uncocked, capped or uncapped, but it includes, also, the time when, and
the place where, they may be borne.”).
In 1877, the Georgia Constitution was revised again, and the right to
bear arms lost its prefatory clause. Ga. Const. of 1877, art. I, § 1, para.
XXII (“The right of the people to keep and bear arms shall not be
infringed, but the General Assembly shall have power to prescribe, the
manner in which arms may be borne.”). In Strickland, the Georgia
Supreme Court upheld against a state constitutional challenge a law
requiring a license for any person to “carry[] about his person” a pistol or
revolver. 72 S.E. at 260. The court cited the Statute of Northampton and
other English sources. The court observed that “no one will contend that
children have a constitutional right to go to school with revolvers strapped
around them, or that men and women have a right to go to church, or sit
in the courtrooms, or crowd around election precincts, armed like
desparadoes, and that this is beyond the power of the Legislature to
prevent.” Id. at 264.
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33
The Alabama Constitution stated that “[e]very citizen has a right to
bear arms in defence of himself and the State.” Ala. Const. of 1819, art. I,
§ 23.
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At trial, English proved that the pistol was not loaded and was
inoperable. Id. at 473. The court took note of various state
decisions, including the Alabama and Georgia decisions. It
also referred to the Statute of Northampton, Sir John Knight’s
Case, and Blackstone. Id. at 476. Analyzing the Second
Amendment, the court concluded that its intended scope was
limited to arms that were “useful and proper to an armed
militia.” Id. at 474 (“Can it be understood that these [deadly
weapons named in the statute] were contemplated by the
framers of our bill of rights? Most of them are the wicked
devices of modern craft.”). The Texas Supreme Court
rejected as “simply ridiculous” the idea that the specific
weapons banned in the statute were “proper or necessary
arms of a ‘well-regulated militia.’” Id. at 476; see id. (“The
word ‘arms’ . . . refers to the arms of a militiaman or soldier,
and the word is used in its military sense.”). Turning next to
English’s challenge under the state constitution, the court
determined that the Texas Constitution “confers upon the
legislature the power to regulate the privilege [to bear arms]”
so long as it does not “tak[e] it away.” Id. at 478.34 The court
concluded that Texas law restricted, but did not deprive, its
residents of the right to bear arms. No one “should claim the
right to carry upon his person any of the mischievous devices
inhibited by the statute, into a peaceable public assembly, as,
for instance into a church, a lecture room, a ball room, or any
other place where ladies and gentlemen are congregated
together.” Id. at 478–79.
34
The Texas Constitution provided: “Every person shall have the
right to keep and bear arms, in the lawful defence of himself or the State,
under such regulations as the legislature may prescribe.” Tex. Const. of
1869, art. I, § 13.
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35
Tennessee’s Constitution of 1870 provided: “That the citizens of
this State have a right to keep and to bear arms for their common defense;
but the [L]egislature shall have power by law, to regulate the wearing of
arms with a view to prevent crime.” Tenn. Const. of 1870, art. I, § 26.
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36
Fife and Haile were not the only cases from the Arkansas Supreme
Court to evaluate the constitutionality of a firearms restrictions under the
state constitution. Both cases built on an 1842 concealed-carry decision,
which concluded that the “[l]egislature possesses competent powers to
prescribe, by law, that any and all arms, kept or borne by individuals, shall
be so kept and borne as not to injure or endanger the private rights of
others . . . .” State v. Buzzard, 4 Ark. 18, 27 (1842) (op. of Ringo, C.J.).
See Ark. Const. of 1836, art. II, § 21 (“That the free white men of this
State shall have a right to keep and to bear arms for their common
defence.”).
Though Buzzard did not involve open carry, the court’s reasons for
upholding the statute reveal an expansive understanding of the
legislature’s authority to regulate public-arms carriage. In the court’s
view, “if the right to keep and bear arms be subject to no legal control or
regulation whatever, it might, and in time to come doubtless will, be so
exercised as to produce in the community disorder and anarchy.” Id. at 21
(op. of Ringo, C.J.).
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37
There are a number of cases we have not reviewed here that discuss
only the question of concealed carry, without addressing, in a holding or
dicta, the question of open carry. See, e.g., State v. Mitchell, 3 Blackf. 229
(Ind. 1833); Wright v. Commonwealth, 77 Pa. 470 (1875); State v.
Wilforth, 74 Mo. 528 (1881); State v. Speller, 86 N.C. 697 (1882); State
v. Workman, 35 W. Va. 367 (1891).
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3. Twentieth-Century Restrictions
38
St. George Tucker explained that “[u]pon dissolution of the regal
government, all public offences became offences against that particular
state in which they were committed.” Accordingly, crimes in Virginia
were “alledged to be committed against the peace and dignity of this
commonwealth.” 5 St. George Tucker, Blackstone’s Commentaries, at
app’x 20.
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United States v. Brewster, 408 U.S. 501, 521 (1972). See U.S. Const. art.
I, § 6, cl. 1 (granting Senators and Representatives privilege against arrest
during and traveling to and from legislative sessions “except [for]
Treason, Felony and Breach of the Peace”); Williamson v. United States,
207 U.S. 425, 446 (1908) (“[T]he term treason, felony and breach of the
peace, as used in the constitutional provision relied upon, excepts from the
operation of the privilege all criminal offenses” (internal quotation marks
omitted)).
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N.C. Const. of 1971, art. I, § 30; cf. La. Const. of 1974, art. I,
§ 11 (removing any reference to the state’s authority to
regulate concealed carry); Mo. Const. of 1945, art. I, § 23
(same). Eight states recognized the legislature’s power to
regulate the carrying of arms, without limiting the express
power to concealed carry. Perhaps the most explicit of these
is the Oklahoma Constitution, which provides: “The right of
a citizen to keep and bear arms in defense of his home,
person, or property, or in aid of the civil power, when
thereunto legally summoned, shall never be prohibited; but
nothing herein contained shall prevent the Legislature from
regulating the carrying of weapons.” Okla. Const. of 1907,
art. II, § 26; see also Fla. Const. of 1885, art. I, § 20; Fla.
Const. of 1968, art. I, § 8; Ga. Const. of 1868, art. I, § 14; Ga.
Const. of 1877, art. I, § 1, para. XXII; Idaho Const. of 1889,
art. I, § 11; Ill. Const. of 1970, art. I, § 22; Tenn. Const. of
1870, art. I, § 26; Tex. Const. of 1869, art. I, § 13; Tex.
Const. of 1876, art. I, § 23; Utah Const. of 1895, art. I, § 6;
Utah Const. of 1984, art. I, § 6.39
39
Even when a state constitution was silent on the power of the
legislature to regulate the carrying of weapons (openly or concealed), state
courts upheld the power of the legislature to regulate carrying. See, e.g.,
Mitchell, 3 Blackf. at 229; Aymette, 21 Tenn. at 161–62; Buzzard, 4 Ark.
at 28 (op. of Ringo, C.J.), 33 (op. of Dickinson, J.); Wright, 77 Pa. at 471;
Blaksley, 83 P. at 620–21; Isaiah, 176 Ala. at 28. The Supreme Court of
Arkansas, reviewing the cases and acknowledging that the Arkansas
Constitution lacked an express conferral of legislative power, referred to
an express provision in the Tennessee Constitution as “a matter of
superabundant caution, inserted to prevent a doubt, and that, unexpressed,
it would result from the undefined police powers, inherent in all
governments, and as essential to their existence as any of the muniments
of the bill of rights.” Haile, 38 Ark. at 567.
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2. The Exceptions
40
The Massachusetts law contemplated both sureties of the peace and
sureties for good behavior, a practice with deep roots in English law. See
supra note 12 (explaining the forms of surety). Section 16 required that
a person accused of being a threat to the peace in the future “find sureties
for keeping the peace.” Section 18 referenced “[a]ny surety in a
recognizance to keep the peace, or for good behavior . . . .” 1836 Mass.
Acts 750, ch. 134, §§ 16, 18 (emphasis added).
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***
41
We note that the Court in Heller was not referring to surety
provisions, but to provisions dealing with discharging weapons. 554 U.S.
at 632–34.
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42
Even if we were disposed to declare pistols and revolvers necessary
for our own self-defense in public places, we see no reasonable stopping
point at firearms. See Strickland, 72 S.E. at 263. If pistols and revolvers
are useful for self-defense, so are dirks and daggers and “other dangerous
and unusual weapons” such as Samurai swords or a trident and net.
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43
The history of legislation the dissent does cite is the post-Civil War
history of the Black Codes. See O’Scannlain Dissent at 150–53. We do
not disagree with the history the dissent recounts, but it is not clear how
that history informs the issue before us. The Black Codes, for example,
forbade black Americans (and others) from keeping arms. See id. at 150
n.8 (citing examples). The congressional reaction to these codes was the
Civil Rights Act of 1866. That Act provided that all citizens, without
regard to prior condition of slavery, would have “the same right . . . to
make and enforce contracts, to sue, be parties, and give evidence, to
inherit, purchase, lease, sell, hold, and convey real and personal property,
and to full and equal benefit of all laws and proceedings for the security
of person and property, as is enjoyed by white citizens . . . .” Act of Apr.
9, 1866, ch. 31, § 1, 14 Stat. 27. Concerned that the Act might be beyond
Congress’s powers, Congress proposed a new amendment, which became
our Fourteenth Amendment. As he introduced the proposed amendment,
Representative Thaddeus Stevens explained that it would guarantee that
Civil War, the states divided along sectional lines over how
to regulate arms, with Northern and Western states following
what has been called the “Massachusetts Model.” He
observes, consistent with the dissent’s point, that “the
constitutionality of the Massachusetts Model was never
sufficiently called into question.” Patrick J. Charles, Armed
in America: A History of Gun Rights from Colonial Militias
to Concealed Carry 143 (2018) (footnote omitted). He
suggests three reasons why that is so. First, “Northerners, by
and large, detested the practice of going habitually armed,”
and therefore accepted the legitimacy of this exercise of
police power. Id. Second, even under the Massachusetts
Model, individuals could “carry weapons for self-defense so
long as they could show a pressing or imminent threat.” Id.
at 144. And third, “Northerners viewed the right to self-
defense as a right of the last resort”; they simply did not feel
the need to carry as often as their Southern counterparts, who
“embrace[d] notions of vengeance and honor.” Id. at 145. In
the South, the states “differentiate[d] between the open and
concealed carriage of arms. While open carriage was more
often than not legally condoned, concealed carriage was
prohibited.” Id.
44
We have addressed all of these cases in Part III.C.2.b and will not
repeat our discussion here.
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dissent dismisses all the state cases that disagreed with its
conclusion, it confidently concludes that “the majority has not
cited a single apposite case in which any nineteenth-century
court held to the contrary.” Id. at 149. The trick, of course,
is the word “apposite.” The dissent rejects decisions from
four states, Arkansas, Georgia, Texas, and West Virginia
because “each decision was explicitly premised on a militia-
focused view of the right to bear arms.” Id. at 145.
According to the dissent, Heller rejected a militia-based
reading of the Second Amendment, and each of these cases
“rests on the untenable militia-based view of the right.” Id.
at 144. The dissent has overstated its case. In Heller, the
Court rejected the view that the Second Amendment’s
prefatory clause—“A well regulated Militia, being necessary
to the security of a free State”—was “the central component
of the right,” that is, that one might possess arms only in
defense of the state. Heller, 554 U.S. at 599 (emphasis
omitted); see id. at 577 (“Petitioners and today’s dissenting
Justices believe that [the Second Amendment] protects only
the right to possess and carry a firearm in connection with
militia service.”). Rather, the Court held that the “entirely
sensible” reading was that the Second Amendment prevented
“the threat that the new Federal Government would destroy
the citizens’ militia by taking away their arms.” Id. at 599;
see id. at 598 (“During the 1788 ratification debates, the fear
that the Federal Government would disarm the people in
order to impose rule through a standing army or select militia
was pervasive in Antifederalist rhetoric.”).
the dissent down that road. Either Heller has decided this
question, in which case there is no need for further historical
inquiry, or we need to examine the entire historical record
with care.
45
Subject to the permissions outlined in § 134-5 and to other
enumerated exceptions, Hawai‘i also prohibits the public carry of loaded
or unloaded firearms other than a pistol or revolver. HRS §§ 134-23, 134-
24. The state further prohibits the possession of automatic firearms,
certain types of rifles and shotguns, and most assault pistols. Id. § 134-8.
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A. Prior Restraint
Binderup v. Att’y Gen., 836 F.3d 336, 344 (3d Cir. 2016) (en
banc) (finding that restrictions on Second Amendment rights
are “subject to scrutiny in much the way that burdens on First
Amendment rights are”); Ezell v. City of Chicago, 651 F.3d
684, 706–07 (7th Cir. 2011) (recognizing that courts have
adopted First Amendment principles of scrutiny in Second
Amendment cases). After all, the Bill of Rights explicitly
protects both the freedom of speech and the right to keep and
bear arms.
B. Procedural Challenge
V. CONCLUSION
I respectfully dissent.
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II
and bear Arms, shall not be infringed.” U.S. Const. amend. II.
Critically, the Amendment protects not only the right to
“keep” arms, but also the right to “bear” arms. Central to
Young’s challenge is the latter of these two verbs.
1
Hawaii bizarrely suggests that we should not focus too heavily on
Tucker, whom Hawaii discounts as “a single nineteenth-century
commentator.” This is a strange attack, indeed, given the Supreme Court’s
direct reliance on Tucker’s notes in both McDonald, 561 U.S. at 769, and
Heller, 554 U.S. at 606. Tucker’s notes deserve similar weight here.
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2
Blackstone was far from alone in recognizing a natural right to self-
defense “belong[ing] to [all] persons merely in a state of nature, and which
every man is intitled to enjoy whether out of society or in it.” 1 William
Blackstone, Commentaries *123. Quite a few commentators of that era
likewise championed such a right. See Leonard W. Levy, Origins of the
Bill of Rights 140–41 (2001) (referencing a 1769 article in the prominent
colonial newspaper A Journal of the Times, which described the English
right as “a natural right which the people have reserved to themselves,
confirmed by the Bill of Rights, to keep arms for their own defence”);
David B. Kopel, The Natural Right of Self-Defense: Heller’s Lesson for
the World, 59 Syracuse L. Rev. 235, 242 (2008) (“The Anglo-Americans
learned the language of natural rights, including the natural right of self-
defense . . . .”).
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Id. at 616–17.3
3
The majority curiously (and erroneously) suggests that, many
decades later, the Alabama Supreme Court recognized a state power to
impose “severe restrictions” on open public carry in a case that upheld a
prohibition against carrying certain arms on private property owned by
another. See Maj. Op. 77–78 (citing Isaiah v. State, 58 So. 53 (Ala.
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4
And, just after the turn of the twentieth century, the Supreme Court
of Idaho likewise struck down a robust territorial prohibition against the
public carry of firearms, holding that it violated of the Second Amendment
because “the legislature has no power to prohibit a citizen from bearing
arms in any portion of the state of Idaho, whether within or without the
corporate limits of cities, towns, and villages.” In re Brickey, 70 P. 609,
609 (Idaho 1902).
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5
Moreover, not even all the cases with militia-focused views of the
right to bear arms took Buzzard’s approach to open public carry. Several
such cases protected the right to bear arms in a way that supports, or is at
least consistent with, a right to such carry. See, e.g., Andrews v. State,
50 Tenn. (3 Heisk.) 165, 186–87 (1871) (holding that, if a pistol “is
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adapted to the usual equipment of the soldier,” then a statute that “forbids
by its terms the carrying of the weapon publicly or privately, without
regard to time or place, or circumstances . . . . violates the constitutional
right to keep arms”); Aymette v. State, 21 Tenn. (2 Hum.) 154, 160 (1840)
(“In the nature of things, if they were not allowed to bear arms openly,
they could not bear them in their defence of the State at all.”).
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6
The majority dismisses Heller’s relevance on this point only by
grossly understating its holding. The majority suggests that Heller left
open the possibility that the Second Amendment protects gun rights only
to the extent that such rights are relevant to a functional militia. See Maj.
Op. 120–22. Nothing could be further from the truth. To be sure, Heller
observed that “the threat that the new Federal Government would destroy
the citizens’ militia by taking away their arms was the reason that right [to
keep and bear arms]—unlike some other English rights—was codified in
a written Constitution.” Heller, 554 U.S. at 599 (emphasis added). But the
Court made abundantly clear that the substance of the right that was so
codified was not limited to militia-relevant firearms practices. Rather,
even if it might be shown that individual “self-defense had little to do with
the right’s codification[,] it was the central component of the right itself.”
Id.
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7
And “even Duke, an outlier which marks perhaps the most
restrictive interpretation that any nineteenth-century court gave to the
defense-based right to bear arms, implicitly rejected no-carry laws as
unconstitutional” when it reasoned that the Texas provision “was
constitutional because it ‘respected the right to carry a pistol openly when
needed for self-defense.’” O’Shea, supra, at 655 (quoting Duke, 42 Tex.
at 459).
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8
Those freedmen who had fought for the Union Army during the war
frequently returned home “to the States of the old Confederacy, where
systematic efforts were made to disarm them and other blacks.”
McDonald, 561 U.S. at 771; see also The Freedmen’s Bureau Bill, N.Y.
Evening Post, May 30, 1866, at 2 (“In South Carolina and Florida the
freedmen are forbidden to wear or keep arms.”). These were part and
parcel with the broader efforts of “those who sought to retain the
institution of slavery . . . to eliminate more and more of the basic liberties
of slaves, free blacks, and white abolitionists.” See McDonald, 561 U.S.
at 843–44 (Thomas, J., concurring in part and concurring in the judgment).
right to keep and bear arms.” Heller, 554 U.S. at 614; see also
Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan.
J.L. & Pub. Pol’y 17, 20 (Winter 1995) (“The various Black
Codes adopted after the Civil War required blacks to obtain
a license before carrying or possessing firearms . . . . These
restrictive gun laws played a part in provoking Republican
efforts to get the Fourteenth Amendment passed.”).
Indeed, even before the Civil War, those who had sought
to dispossess black Americans of the right to carry arms for
self-defense understood that they were really seeking to
dispossess black Americans of fundamental constitutional
rights. This was made all-too-painfully clear by the Supreme
Court’s infamous decision in Dred Scott v. Sandford, 60 U.S.
(19 How.) 393 (1857), rendered four years before the first
shots were fired at Fort Sumter. See McDonald, 561 U.S. at
807–08, 822–23, 849 (Thomas, J., concurring in part and
concurring in the judgment) (looking to Dred Scott as
necessary context for Reconstruction-era historical analysis).
Writing for the Court, Chief Justice Taney—disgracefully—
dismissed Dred Scott’s suit for freedom after concluding that
black men and women had never been a part of the sovereign
“people” of the United States and therefore could find no
recourse in an Article III court. See Dred Scott, 60 U.S. (19
How.) at 407. To hold otherwise, Chief Justice Taney wrote,
would have “entitled [black Americans] to the privileges and
immunities [i.e., fundamental rights] of citizens” and thus
granted them the rights he felt only whites could enjoy: “[I]t
would give them the full liberty of speech in public and in
private upon all subjects upon which [white] citizens might
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For one, the majority argues that the English right to carry
weapons openly was severely limited for centuries by the
1328 Statute of Northampton and suggests, in turn, that we
should incorporate such an understanding of English rights
into our Constitution’s Second Amendment. Exploring
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9
An “affray,” derived from the French word “effraier” (meaning “to
terrify”), is an act that disturbs the peace. See 1 William Hawkins, A
Treatise of the Pleas of the Crown 134 § 1 (1716).
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10
The majority erroneously asserts that Chune v. Piott (K.B. 1615),
80 Eng. Rep. 1161, eliminated from “the crime of unlawful carrying” the
“element” of “in terrorem populi Regis” (i.e., carrying “to the terror of the
king’s people”). See Maj. Op. 49. In actuality, Chune merely held that a
valid arrest for “unlawful carrying” did not require the arresting sheriff to
have personally witnessed the accused causing terrorem populi Regis.
80 Eng. Rep. at 1162. That is to say, King’s Bench loosened the
evidentiary standards by which the element of in terrorem populi Regis
could be proven; it did not abandon the element itself.
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Not so.
The fact that such laws existed hardly shows that general
prohibitions on public carry would have been understood to
be constitutional at the time. On the contrary, the only reason
to enact laws specifically prohibiting firearm carry in
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11
In a similar (though somewhat more colorful) vein, the majority
cites in passing an 1880 treatise in which Benjamin Vaughan Abbott
approved of regulations that would address the particular danger posed by
careless individuals mishandling firearms as “fireworks” in public. See
Maj. Op. 90 (citing Benjamin Vaughan Abbott, Judge and Jury 333
(1880)). First, Abbott recognized that the “Constitution secures the right
of the people to keep and bear arms,” including the right of a citizen to
“keep[] a gun or pistol under judicious precautions” and to “practise[] in
safe places the use of it.” Abbott, supra, at 333. But, Abbott contended,
a state could nonetheless enact restrictions against “keeping pistols for
playthings; carrying them carelessly in the pocket; toying with them at
picnics, on board steamers, and in saloons; exhibiting them to curious
girls; lending them to boys; firing at random with them upon city
sidewalks.” Id.
many state laws recounted above.12 Indeed, just after the turn
of the twentieth century, the Idaho Supreme Court struck
down as unconstitutional a similarly restrictive measure that
had been put in place by the territorial legislature there. See
Brickey, 70 P. at 609. And, as with the Black Codes which
sought to suppress the ability of freedmen to own guns
following the Civil War, there may be reason to question
whether similarly illicit goals may have inspired arms
restrictions in these heavily Indian territories. See generally
Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1680
(2012) (“[T]he relationship of Indians and guns [in early
America] developed in parallel to African-Americans and
guns, with both groups situated at the bottom of a racial
hierarchy that facilitated oppression, noncitizen status, and
subjugation.”).
12
The majority cites only one state (as opposed to territorial) law that
purportedly imposed such a broad prohibition. See 1881 Kan. Sess. Laws
80, 92, ch. 37, § 23 (“The [city] council shall prohibit and punish the
carrying of firearms, or other dangerous or deadly weapons, concealed or
otherwise . . . .”). But this provision did not actually impose a direct,
statewide prohibition on carry. Rather, it was contained in the organic
statute incorporating certain cities within the State of Kansas, which in
turn directed their city councils to pass ordinances generally regulate
potential nuisances ranging from “the carrying of firearms” to the mischief
caused by “vagrants, tramps, [and] confidence men.” Id. The majority
presents no evidence of the nature of any municipal firearms regulations
that were actually enacted pursuant to the Kansas statute.
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13
On this point, one should not be misled by the majority’s baseless
suggestion that the preceding historical review has cherry-picked
favorable evidence or somehow been an exercise in something that is “not
history.” See Maj. Op. 116. That is flatly wrong. Once one pierces through
the majority’s theatrical language, the inescapable fact remains that the
majority has identified no historical evidence that has been “discard[ed],”
see id. at 115—let alone any that would undermine the conclusions
articulated above.
But the majority has found none of the above. All the
majority has managed to demonstrate is that the manner of
open public carry has at times been regulated (by laws
criminalizing the carry of especially dangerous or unusual
weapons with the intent or effect of “terrorizing the people,”
surety laws, laws restricting carry in particularly sensitive
public places, and the like), and that such narrow regulations
have at times been upheld or otherwise left unchallenged.
When all is said and done, there is a vast and undeniable
chasm between these (largely uncontroverted) propositions
about the historical presence of some firearms regulation and
the far more troubling proposition that the majority today
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14
The majority might object that it has sometimes “qualified” its
analysis as to apply to prohibitions on the public carry of handguns
specifically (though, sometimes, it has not, see, e.g., Maj. Op. 112). As
discussed above, any such qualification is of no moment, given that Heller
made clear that protections for handguns are especially central to the
Second Amendment because the handgun is the “quintessential self-
defense weapon.” 554 U.S. at 629. If, as the majority says, public carry of
the “quintessential self-defense weapon” can be prohibited, what cannot?
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15
See, e.g., Gordon S. Wood, The Creation of the American Republic:
1776–1787, at 344–89 (1998); Edmund S. Morgan, Inventing the People:
The Rise of Popular Sovereignty in England and America 235–306 (1988);
Bernard Bailyn, The Ideological Origins of the American Revolution
55–93 (1967); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale
L.J. 1425, 1429–66 (1987).
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III
16
By way of (illustrative) comparison, courts have been more willing
to consider the non-“core” status of gun rights other than the expressly
enumerated rights to “keep” (i.e., to possess) and to “bear” (i.e., to carry)
arms, such as the rights to sell certain firearms, or to manufacture firearms
with or without certain features. See, e.g., Pena v. Lindley, 898 F.3d 969,
1009 (9th Cir. 2018) (Bybee, J., concurring in part and dissenting in part);
United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010).
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IV
statute. But in the real world, it is not how the State of Hawaii
or its constituent counties have actually interpreted and
applied section 134-9.
No thanks!
17
Whereas the State now seeks to create ambiguity about whether its
statute limits open carry to security guards and those similarly employed,
there can be no such ambiguity that the County’s 1997 regulation does
exactly that. Accordingly, such a regulation is unconstitutional in its own
right.
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18
The majority’s assertion that “Young did not set out [an as-applied]
claim as an issue before our court in his panel appeal,” Maj. Op. 28, is
even more inaccurate. Young’s opening brief, filed in 2013, plainly states:
“[Hawaii County Police] Chief Kubojiri’s failure to adopt policies which
comport with constitutional guidelines has resulted in HRS § 134-9, as
applied to Mr. Young, to be an unconstitutional deprivation of his
constitutional rights. In the alternative, if no guidelines could make the
statute constitutional then it is unconstitutional on its face.” And it is of no
moment that the panel opinion referred to “several . . . arguments” that
Young had abandoned or waived on appeal. Id. (quoting Young, 896 F.3d
at 1050 n.3). The panel expressly listed those claims that Young had
forfeited; Young’s as-applied challenge to Hawaii’s restrictions on his
ability to carry a handgun openly was not one of them. See Young,
896 F.3d at 1050 n.3.
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19
To be sure, Hawaii argues—and the majority intimates—that
history countenances such an approach. Young’s interest in self-defense,
they say, is merely “generalized,” whereas the Second Amendment and its
English forbearers protected a right to open carry only in service of a
“particularized” need for self-defense. See Maj. Op. 54–55. This putative
distinction, however, proves specious.
20
Because I would reverse the district court on Second Amendment
grounds, I would decline to reach Young’s prior-restraint and due-process
claims.
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1
Young’s counsel appeared on December 21, 2012, after the notice
of appeal was filed.
2
Indeed, we held the plaintiff in Real, represented by counsel,
brought an as-applied challenge though he had never applied for a permit
and his complaint never mentioned the words “as-applied.” 852 F.3d
at 934 (holding Real had standing to bring an as-applied challenge since
he “alleged an intention” to undertake constitutionally protected activity
but “ordinances proscribe[d] his intended conduct”). Just like Young,
Real stated in his response opposing the motion to dismiss that he brought
an as-applied challenge.
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3
Morrison’s complaint never used the words “as-applied” or “facial”
and included only two sentences that could have raised a facial challenge.
In his opposition to the motion to dismiss, Morrison only stated he was
challenging the statute as-applied.
4
The government’s brief argued that Kafka brought only a facial
challenge because “[t]he district court specifically inquired into the
Defendant’s wish to present a case purely as a matter of law, or if he
wished to make a factual record” and Kafka had “declined to present any
facts.” Neither Kafka’s Opening Brief or Reply Brief ever used the words
“as-applied.”
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5
It is far different when a party, represented by counsel, specifically
pleads only a facial challenge and affirmatively disclaims any as-applied
challenge. See Calvary Chapel Bible Fellowship v. Cnty. of Riverside,
948 F.3d 1172, 1177 (9th Cir. 2020).
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6
As Judge O’Scannlain notes, the three-judge panel did not find
Young forfeited his as-applied challenge. O’Scannlain Dissent at 187
n.18. To the extent that the majority believes otherwise, Maj. Op.
at 29–30, “a party does not necessarily forfeit an issue by first raising it”
in en banc proceedings. United States v. Hernandez-Estrada, 749 F.3d
1154, 1160 (9th Cir. 2014) (en banc). Indeed, the “exercise” of our
“judicial responsibility” dictates considering the as-applied challenge. See
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Moreover, the majority makes much of the fact that the three-judge
panel did not address Young’s as-applied challenge. Maj. Op. at 28. But
as the majority acknowledges, since the three-judge panel (rightfully) held
the statute to be facially unconstitutional, the statute was “void in toto”
and unconstitutional as-applied; thus, there was no need for the three-
judge panel to address the as-applied challenge separately. See Maj. Op.
at 26–27; Powell’s Books, 622 F.3d at 1207 n.1.
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7
The majority also characterizes Young’s pro se civil rights
complaint as “lengthy and rambling.” Maj. Op. at 25 n.3. On the one
hand, the majority thus criticizes Young’s pro se complaint for his verbose
diction, and on the other, the majority faults Young for not alleging
enough. Even besides this contradiction, such uncharitable
characterizations are unhelpful to resolving this case.
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8
Though the majority pays lip service to the relaxed pro se pleading
standard, the majority nevertheless applies Miller’s stringent “specific[]
and distinct[]” standard—dealing with a represented party’s appellate
brief—to Young’s pro se complaint. Maj. Op. at 28–30. And the majority
exacerbates its error by inappositely relying on Greenwood v. F.A.A.,
where the represented appellant raised an issue “for the first time on
appeal.” 28 F.3d 971, 977 (9th Cir. 1994). The majority ignores the
consistently detailed allegations in Young’s complaint. Moreover, it also
ignores our duty to look at “the breadth of the remedy employed by the
Court” as the “exercise of its judicial responsibility” demands. Citizens
United, 558 U.S. at 331, 333; see also Isaacson, 716 F.3d at 1230.
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9
The majority suggests it would “manufacture jurisdictional issues”
to remand for the district court to consider the as-applied challenge
erroneously labeled as a facial challenge. Maj. Op. at 28 n.6. Not so. Our
court has appellate jurisdiction over final judgments of the district court,
including ones that “erroneously treated the as-applied challenge brought
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. . . as a facial challenge.” See Stormans, Inc., 586 F.3d at 1140; CPR for
Skid Row v. City of Los Angeles, 779 F.3d 1098, 1111 (9th Cir. 2015)
(remanding where district court did not address crucial part of as-applied
challenge); Foti, 146 F.3d at 635, 640–42 (recognizing plaintiffs’ as-
applied challenge even though the district court considered only the facial
challenge and expressly declined to consider the as-applied challenge).
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10
This court should not decide in the first instance to dismiss Young’s
complaint based on a failure to plead according to the non-binding Hawaii
Attorney General’s Opinion (“AG Opinion”) issued over six years after
his complaint was filed—in response to the panel opinion upholding his
facial challenge. Such positions taken purely for the sake of litigation are
entitled to little, if any, weight. See Kisor v. Wilkie, 139 S. Ct. 2400, 2417
& n.6 (2019).
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11
Without remand, Young could suffer claim or issue preclusion if
this court affirms the dismissal of his complaint with prejudice. See
Littlejohn v. United States, 321 F.3d 915, 919–20 (9th Cir. 2003) (“Claim
preclusion prevents the relitigation of claims previously tried and
decided.” (citation omitted)); Scafidi v. Las Vegas Metro. Police Dep’t,
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1185, 1190 n.3 (9th Cir. 2003). Indeed, the First, Third,
Fourth, Seventh, Eighth, and D.C. Circuits have held that a
litigant may be able to raise an as-applied challenge even to
presumptively lawful firearms prohibitions. Binderup v. Att’y
Gen. U.S., 836 F.3d 336, 343–48 (3d Cir. 2016) (en banc);
Schrader v. Holder, 704 F.3d 980, 988–89 (D.C. Cir. 2013);
United States v. Moore, 666 F.3d 313, 316–17 (4th Cir.
2012); United States v. Torres-Rosario, 658 F.3d 110, 113
(1st Cir. 2011); United States v. Williams, 616 F.3d 685,
691–92 (7th Cir. 2010); see also United States v. Woolsey,
759 F.3d 905, 909 (8th Cir. 2014) (hearing as-applied
challenge to § 922(g)(1) but not mentioning Heller).
966 F.3d 960, 963 (9th Cir. 2020) (“Issue preclusion, or collateral
estoppel, bars successive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination essential to the prior
judgment.” (internal quotation marks and citations omitted)). Thus, it is
unclear whether he could bring his complaint anew given the current
disposition of the case. See Outdoor Media Dimensions Inc. v. Crunican,
202 F.3d 278 (9th Cir. 1999) (unpublished) (affirming a facial challenge
but “remand[ing] so that the judgment can be amended to state that it is
without prejudice as to an ‘as applied challenge’”).
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II
12
Hawaii did not address this position in any of its briefs; it merely
stated in response to questioning at oral argument that the County
Regulations are inconsistent with the AG Opinion’s reading of the statute.
It did not specify whether or how supposed inconsistency with a non-
binding legal opinion meets the preemption requirements under H.R.S
§ 46–1.5(13). In any event, arguments regarding statutory questions
“raised for the first time at oral argument” are waived. Perez-Guzman v.
Lynch, 835 F.3d 1066, 1075 n.4 (9th Cir. 2016). “That course seems
doubly wise because, based on oral argument, it appears that the
government knew of this potential argument, but may have deliberately
chosen not to raise it.” Ctr. for Investigative Reporting v. United States
Dep’t of Justice, 982 F.3d 668, 686 (9th Cir. 2020).
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III
13
Hawaii defends the County Regulations only with a conclusory
assertion that the “regulation does not limit open-carry licenses to security
guards,” because “[t]he language of the County’s regulation mirrors the
language of the state statute.” This interpretation is flatly contradicted by
the plain language of the County Regulations. The statute does not
include the regulatory language cited here, nor is the phrase “security
guards” included in the statute’s title, as it is in the County Regulations’
title.