George Young, Jr. v. State of Hawaii

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE K. YOUNG, JR., No. 12-17808

Plaintiff-Appellant,

D.C. No.

v. 1:12-cv-00336-

HG-BMK

STATE OF HAWAII; NEIL

ABERCROMBIE, in his capacity as

Governor of the State of Hawaii; OPINION

DAVID MARK LOUIE I, Esquire, in his

capacity as State Attorney General;

COUNTY OF HAWAII, as a sub-agency

of the State of Hawaii; WILLIAM P.

KENOI, in his capacity as Mayor of

the County of Hawaii; HILO COUNTY

POLICE DEPARTMENT, as a sub-

agency of the County of Hawaii;

HARRY S. KUBOJIRI, in his capacity

as Chief of Police; JOHN DOES, 1–

25; JANE DOES, 1–25; DOE

CORPORATIONS, 1–5; DOE ENTITIES,

1–5,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

Helen W. Gillmor, Senior District Judge, Presiding

2 YOUNG V. STATE OF HAWAII

Argued and Submitted February 12, 2018

Honolulu, Hawaii

Filed July 24, 2018

Before: Diarmuid F. O’Scannlain, Richard R. Clifton,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge Clifton

YOUNG V. STATE OF HAWAII 3

SUMMARY *

Civil Rights

The panel reversed the district court’s dismissal of

claims brought against the County of Hawaii, dismissed

plaintiff’s appeal as to the State of Hawaii, and remanded, in

plaintiff’s 42 U.S.C. § 1983 action alleging that the denial of

his application for a handgun license violated his Second

Amendment right to carry a loaded firearm in public for self-

defense.

The County of Hawaii’s Chief of Police denied

plaintiff’s application to carry a handgun because he failed

to satisfy Hawaii’s licensing requirements, as set forth in

section 134-9 of the Hawaii Revised Statutes. 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.” H.R.S. §§ 134-23, 134-24, 134-25. The exception

allows citizens to obtain a license to carry a loaded handgun

in public, either concealed or openly, under certain

circumstances. Plaintiff alleged that the County violated the

Second Amendment by enforcing against him the State’s

limitations in section 134-9 on the open carry of firearms to

those “engaged in the protection of life and property” and on

the concealed carry of firearms to those who can

demonstrate an “exceptional case.”

The panel acknowledged that while the concealed carry

of firearms categorically falls outside Second Amendment

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 YOUNG V. STATE OF HAWAII

protection, see Peruta v. County of San Diego, 824 F.3d 919,

939 (2016) (en banc), it was satisfied that the Second

Amendment encompasses a right to carry a firearm openly

in public for self-defense. Analyzing the text of the Second

Amendment and reviewing the relevant history, including

founding-era treatises and nineteenth century case law, the

panel stated that it was unpersuaded by the County’s and the

State’s argument that the Second Amendment only has force

within the home. The panel stated that once identified as an

individual right focused on self-defense, the right to bear

arms must guarantee some right to self-defense in public.

The panel held that because Hawaii law restricted plaintiff

in exercising the right to carry a firearm openly, it burdened

conduct protected by the Second Amendment.

In determining the appropriate level of scrutiny to apply

to section 134-9, the panel first held that the right to carry a

firearm openly for self-defense falls within the core of the

Second Amendment. The panel stated that restricting open

carry to those whose job entails protecting life or property

necessarily restricts open carry to a small and insulated

subset of law-abiding citizens. The panel reasoned that the

typical, law-abiding citizen in the State of Hawaii was

entirely foreclosed from exercising the core Second

Amendment right to bear arms for self-defense. The panel

concluded that Hawaii’s limitation on the open carry of

firearms to those “engaged in the protection of life and

property” violated the core of the Second Amendment and

was void under any level of scrutiny.

Dissenting, Judge Clifton stated the majority opinion

disregarded the fact that states and territories in a variety of

regions have long allowed for extensive regulations of and

limitations on the public carry of firearms. Judge Clifton

wrote that such regulations are presumptively lawful under

YOUNG V. STATE OF HAWAII 5

District of Columbia v. Heller, 554 U.S. 570 (2008), and do

not undercut the core of the Second Amendment. In

addition, Judge Clifton stated that the majority opinion

misconceived the intermediate scrutiny test, assumed

without support in the record that Hawaii’s statute operates

as a complete ban, and substituted its own judgment about

the efficacy of less restrictive regulatory schemes.

COUNSEL

Alan A. Beck (argued), Law Offices of Alan Beck, San

Diego, California; Stephen D. Stamboulieh, Stamboulieh

Law PLL, Madison, Mississippi; for Plaintiff-Appellant.

D. Kaena Horowitz (argued), County of Hawaii Deputy

Corporation Counsel; Laureen L. Martin, County of Hawaii

Assistant Corporation Counsel; Office of the Corporation

Counsel, Hilo, Hawaii; for Defendants-Appellees County of

Hawaii, William P. Kenoi, and Harry S. Kubojiri.

Kimberly Tsumoto Guidry, First Deputy Solicitor General;

Robert Tadao Nakatsuji, Deputy Solicitor General;

Department of the Attorney General, Honolulu, Hawaii; for

Defendant-Appellee and Amicus Curiae State of Hawaii.

No appearance for Defendants-Appellees Neil Abercrombie

and David Mark Louie I.

6 YOUNG V. STATE OF HAWAII

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment

encompasses the right of a responsible law-abiding citizen

to carry a firearm openly for self-defense outside of the

home.

I

A

George Young wishes to carry a firearm publicly 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.” H.R.S. §§ 134-23, 134-24,

134-25. The exception allows citizens to obtain a license to

carry a loaded handgun in public, either concealed or openly,

under certain circumstances. H.R.S. § 134-9. 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

YOUNG V. STATE OF HAWAII 7

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.” Police Dep’t of Cty. of

Haw., Rules and Regulations Governing the Issuance of

Licenses 10 (Oct. 22, 1997).

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

only use those firearms while “actually engaged” in hunting

or target shooting, H.R.S. § 134-5.

B

On June 12, 2012, Young filed this suit pro se under

42 U.S.C. § 1983 against the State of Hawaii, its then-

Governor, Neil Abercrombie, and its then-Attorney General,

David Louie (collectively “the State”), as well as the County

of Hawaii, its then-Mayor, William Kenoi, the Hilo County

Police Department, and its then-Chief of Police, Harry

Kubojiri (collectively “the County”). Primarily alleging that

denying his application for a handgun license violates his

Second Amendment right to carry a loaded firearm in public

for self-defense, Young requested, among other things,

injunctive and declaratory relief from the enforcement of

section 134-9’s licensing requirements.

The State filed a motion to dismiss Young’s claims under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and

the County filed a motion to dismiss the claims under Rule

12(b)(6). The district court granted both. As for the State of

Hawaii, the district court found Young’s action to be barred

8 YOUNG V. STATE OF HAWAII

by sovereign immunity. Young’s action against the State

officials—while not barred by sovereign immunity under Ex

Parte Young, 209 U.S. 123 (1908)—was dismissed because

the district court found their general oversight of the

enforcement of Hawaii’s laws “insufficient to establish a

nexus between [such] officials and the alleged violation of

[Young’s] civil rights.”

Dismissing Young’s action against the County on the

merits, the district court found that section 134-9 “does not

implicate activity protected by the Second Amendment,”

because that Amendment “establishes only a narrow

individual right to keep an operable handgun at home for

self-defense.” In the alternative, the district court indicated

that it would uphold section 134-9’s open and concealed

carry limitations under intermediate scrutiny. As the court

reasoned, the State’s “substantial interest in safeguarding the

public from the inherent dangers of firearms” was

reasonably furthered by policies that “enable[] officials to

effectively differentiate between individuals who need to

carry a gun for self-defense and those who do not.”

Young timely appealed. 1

1

Young filed a notice of appeal with respect to the dismissal of his

claims against both the State and County, but on appeal he makes no

arguments to contest the district court’s reasons for dismissing his claims

against the State. Believing itself no longer a party to the case, the State

has neither filed a response brief nor sought to participate in oral

argument. We thus do not review the district court’s judgment in its favor

and Young’s appeal against the State accordingly must be dismissed.

The State has, however, filed several briefs as amicus curiae. At oral

argument, the County explicitly endorsed the arguments of the State

YOUNG V. STATE OF HAWAII 9

II

A

Young’s argument is straightforward: he asserts that the

County has violated the Second Amendment by enforcing

against him the State’s limitations in section 134-9 on the

open carry of firearms to those “engaged in the protection of

life and property” 2 and on the concealed carry of firearms to

those who can demonstrate an “exceptional case.” 3

made as amicus curiae. Thus, when we refer to arguments made by the

State they are to be found in its amicus briefs as adopted by the County.

2

Young does not address the additional limitation in section 134-9

providing that an open carry license may only be granted “[w]here the

urgency or the need has been sufficiently indicated.” Nor could we

evaluate such a requirement at the motion to dismiss stage, absent

evidence showing the stringency of the requirement. Thus, we do not

decide whether such requirement violates the Second Amendment.

3

In the district court, Young also argued that section 134-9 violates

the Ninth Amendment, the Privileges or Immunities Clause, the Bill of

Attainder Clause, and the Contracts Clause. Young has abandoned such

claims on appeal.

But Young does raise several new arguments on appeal. He argues

that the State of Hawaii’s prohibitions on the possession of electric guns

(H.R.S. § 134-16), switchblades (H.R.S. § 134-52), and butterfly knives

(H.R.S. § 134-53) violate the Second Amendment. He also argues that

the prohibition on carrying rifles and shotguns publicly, arising out of

section 134-24, violates the Second Amendment. Because Young failed

properly to raise these arguments before the district court, we deem such

arguments forfeited. See United States v. Greger, 716 F.2d 1275, 1277

(9th Cir. 1983).

10 YOUNG V. STATE OF HAWAII

1

The County and the State respond that Young’s claim is

foreclosed by our en banc decision in Peruta v. County of

San Diego (Peruta II), 824 F.3d 919 (2016) (en banc), which

overturned a three-judge panel’s decision striking down a

concealed carry licensing regime, see Peruta v. County of

San Diego (Peruta I), 742 F.3d 1144 (9th Cir. 2014).

In Peruta II, we considered a challenge to San Diego’s

limitations on the concealed carry of handguns outside of the

home. 824 F.3d at 924. California law generally prohibits

carrying firearms in public, whether concealed or openly.

See Cal. Penal Code §§ 25400, 25850, 26350. But San Diego

County leaves open the opportunity to carry a concealed

firearm upon the demonstration of “good cause.” See Peruta

II, 824 F.3d at 926. Rejecting Peruta’s challenge, our en banc

court held that “the Second Amendment right to keep and

bear arms does not include, in any degree, the right of a

member of the general public to carry concealed firearms in

public.” Id. at 939 (emphasis added). But, as even the dissent

acknowledges, our court explicitly left unresolved the

question of whether the Second Amendment encompasses a

right to open carry. See id. (“There may or may not be a

Second Amendment right for a member of the general public

to carry a firearm openly in public. The Supreme Court has

not answered that question, and we do not answer it here.”).

Young’s claim therefore picks up where Peruta’s left off and

presents an issue of first impression for this circuit: whether

the Second Amendment encompasses a right to carry

firearms openly in public for self-defense.

YOUNG V. STATE OF HAWAII 11

2

Our interpretation of the Second Amendment is guided

by the Supreme Court’s decisions in District of Columbia v.

Heller, 554 U.S. 570 (2008), and McDonald v. City of

Chicago, 561 U.S. 742 (2010). In Heller, the Court

invalidated a District of Columbia ban on handgun

possession in the home, holding that the Second Amendment

guarantees an individual right to keep a handgun in one’s

home for self-defense, and rejecting a collective view of the

right. See 554 U.S. at 635. Because the District of Columbia

law had completely banned “the quintessential self-defense

weapon” within the home, the Court saw no need to clarify

further the scope of the right or the level of scrutiny it

demands. See id. at 629. “Under any of the standards of

scrutiny that [the Court has] applied to enumerated

constitutional rights,” such a severe deprivation must fail. Id.

at 628–29.

In McDonald, the Court incorporated the Second

Amendment against the States through the Fourteenth

Amendment, invalidating a Chicago law that effectively

banned handgun possession by residents of the city. 561 U.S.

at 750. In determining whether the pre-existing right

codified by the Second Amendment was “fundamental to

our scheme of ordered liberty,” the Court stressed the

centrality of self-defense: “Self-defense is a basic right,

recognized by many legal systems from ancient times to the

present day . . . .” Id. at 767. Consequently, the Court held it

“clear that this right is ‘deeply rooted in this Nation’s history

and tradition,’” thus binding the States alongside the federal

government. Id. at 768 (quoting Washington v. Glucksberg,

521 U.S. 702, 721 (1997)); see also id. at 805–06 (Thomas,

J., concurring in part and concurring in the judgment)

(agreeing that the Second Amendment is “fully applicable to

12 YOUNG V. STATE OF HAWAII

the States,” but via the Fourteenth Amendment’s Privileges

or Immunities Clause).

As was the case in Peruta II, we find ourselves

navigating waters uncharted by Heller and McDonald: the

degree to which the Second Amendment protects, or does

not protect, the carrying of firearms outside of the home.

B

Our circuit, like others, employs a two-step approach to

Second Amendment challenges. See Jackson v. City & Cty.

of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014); see also

United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010);

United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).

We first ask “whether the challenged law burdens conduct

protected by the Second Amendment.” Jackson, 746 F.3d at

960 (quoting United States v. Chovan, 735 F.3d 1127, 1136

(9th Cir. 2013)). If so, we must “apply an appropriate level

of scrutiny.” Id. And because Heller makes clear that

evaluating restrictions of Second Amendment rights under

rational basis review is inappropriate, see 554 U.S. at 628

n.27, any means-end scrutiny applied must be some form of

heightened scrutiny, such as intermediate or strict scrutiny.

Of course, we remain ever mindful not to treat the Second

Amendment any differently from other individual

constitutional rights. It is not “a second-class right,”

McDonald, 561 U.S. at 780, nor a “constitutional orphan,”

Silvester v. Becerra, No. 17-342, 2018 WL 943032, at *8

(U.S. Feb. 20, 2018) (Thomas, J., dissenting from denial of

certiorari).

Heller and McDonald set the goalposts for our inquiry,

which requires determining the scope of the Second

Amendment with respect to public carry. We must discern

the scope of the Amendment not as it appears to us now, but

YOUNG V. STATE OF HAWAII 13

“with the scope [it was] understood to have when the people

adopted [it].” Heller, 554 U.S. at 634–35. Our lodestars are

“text and history,” id. at 595, because they bear most

strongly on what the right was understood to mean, at the

time of enactment, to the public. Because “words and

phrases were used in their normal and ordinary as

distinguished from technical meaning,” id. at 576 (quoting

United States v. Sprague, 282 U.S. 716, 731 (1931)), our

approach is not just a textual one, but also a contextual one.

See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts, at xxv (2012) (“Words don’t

have intrinsic meanings; the significance of an expression

depends on how the interpretive community alive at the time

of the text’s adoption understood those words.”). History and

convention, therefore, illuminate our understanding of the

text.

We are not the first circuit to grapple with how far, and

to what extent, the Second Amendment applies outside the

home. Two circuits, looking closely at the text and history of

the Amendment, have held that the Second Amendment

indeed protects a general right to carry firearms in public for

self-defense. See Wrenn v. District of Columbia, 864 F.3d

650, 665 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933,

936–37 (7th Cir. 2012). 4 Three others have simply assumed

the Second Amendment applies outside the home, without

4

The Illinois Supreme Court has agreed with the reasoning of Moore

and subsequently held that the Second Amendment applies outside the

home. See People v. Aguilar, 2 N.E.3d 321, 327 (Ill. 2013) (“[I]f Heller

means what it says, and ‘individual self-defense’ is indeed ‘the central

component’ of the second amendment right to keep and bear arms, then

it would make little sense to restrict that right to the home, as

‘confrontations are not limited to the home.’” (internal citations and

brackets omitted) (quoting Heller, 554 U.S. at 599 and Moore, 702 F.3d

at 935–36)).

14 YOUNG V. STATE OF HAWAII

delving into the historical nature of the right. See Woollard

v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Drake v.

Filko, 724 F.3d 426, 431 (3d Cir. 2013); Kachalsky v. Cty.

of Westchester, 701 F.3d 81, 89 (2d Cir. 2012).

III

A

We start, as we must, with the text. The Second

Amendment provides: “A well regulated Militia, being

necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II. It is apparent from the face of the text that

the Amendment protects the right not only to “keep” but also

to “bear” arms. The latter verb is central to Young’s

challenge.

Heller provides useful guidance. To “bear,” the Court

explained, means to “wear” or to “carry . . . upon the person

or in the clothing or in a pocket, for the purpose . . . of being

armed and ready for offensive or defense action in a case of

conflict with another person.” Heller, 554 U.S. at 584

(quoting Muscarello v. United States, 524 U.S. 125, 143

(1998) (Ginsburg, J., dissenting)). And Heller explained that

“bear arms” did not solely refer to carrying a weapon as part

of a militia. Id. at 585. Rather, to “bear” an object means to

carry it, and “[w]hen used with ‘arms,’ . . . the term has a

meaning that refers to carrying for a particular purpose—

confrontation.” Id. at 584.

The prospect of confrontation is, of course, not limited

to one’s dwelling. See Wrenn, 864 F.3d at 657 (“After all,

the Amendment’s core lawful purpose is self-defense, and

the need for that might arise beyond as well as within the

home.” (internal quotations and citations omitted)); Moore,

YOUNG V. STATE OF HAWAII 15

702 F.3d at 941 (“[T]he interest in self-protection is as great

outside as inside the home.”). Thus, carrying firearms

outside the home fits comfortably within Heller’s definition

of “bear.”

Indeed, the fact that the Second Amendment protects

bearing as well as keeping arms implies some level of public

carry in case of confrontation. A right to “keep” arms, on its

own, necessarily implies a right to carry those arms to some

extent. For instance, in order to “keep” arms, one would have

to carry them home from the place of purchase and

occasionally move them from storage place to storage place.

Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.

2011) (holding that the right to possess firearms “implies a

corresponding right to acquire and maintain proficiency in

their use”). The addition of a separate right to “bear” arms,

beyond keeping them, should therefore protect something

more than mere carrying incidental to keeping arms. See

Thomas M. Cooley, The General Principles of

Constitutional Law in the United States of America 271

(1880) (“[T]o bear arms implies something more than mere

keeping.”). Understanding “bear” to protect at least some

level of carrying in anticipation of conflict outside of the

home provides the necessary gap between “keep” and “bear”

to avoid rendering the latter guarantee as mere surplusage.

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)

(“[I]t cannot be presumed that any clause in the constitution

is intended to be without effect . . . .”).

Heller and McDonald suggest a similar understanding of

“bear.” Heller described the “inherent right of self-defense”

as “most acute” within the home, implying that the right

exists, perhaps less acutely, outside the home. 554 U.S. at

16 YOUNG V. STATE OF HAWAII

628. 5 McDonald similarly described the right as “most

notabl[e]” within the home, implying the right exists,

perhaps less notably, outside the home. 561 U.S. at 780.

Heller also identified “laws forbidding the carrying of

firearms in sensitive places such as schools and government

buildings” as presumptively lawful. 554 U.S. at 626. Why

bother clarifying the definition of sensitive public places if

the Second Amendment did not apply, at all, to any public

place? 6

In short, the text of the Amendment, as interpreted by

Heller and McDonald, points toward the conclusion that

“bear” implies a right to carry firearms publicly for self-

defense. 7

B

We next consider the writings of “important founding-

era legal scholars” to discern the original public

5

The Delaware Supreme Court recently adopted this interpretation

of Heller’s “most acute” language. See Bridgeville Rifle & Pistol Club,

Ltd. v. Small, 176 A.3d 632, 651 n.100 (Del. 2017) (“[T]he Heller

Court’s statement that ‘the need for defense of self, family, and property’

is ‘most acute’ in the home suggests that the need must be less acute

elsewhere—but nonetheless present.” (quoting Heller, 554 U.S. at 628)

(internal citation omitted)).

6

The State’s amicus brief asks us to stretch this list of presumptively

lawful measures to allow all laws “preserving public safety.” This

argument borders on the absurd. Surely not all areas of the public are as

sensitive as schools or government buildings, nor is it, as the State

suggests, a “very small and reasonable step to view virtually the entire

public sphere as a ‘sensitive place.’”

7

Strangely, the dissent is content to reach a contrary conclusion and

effectively to limit the Second Amendment’s protections to within the

home without even bothering to grapple with the text of the Amendment.

YOUNG V. STATE OF HAWAII 17

understanding of the Second Amendment right, because, as

Heller explains, “[t]hat sort of inquiry is a critical tool of

constitutional interpretation.” 554 U.S. at 605; see also

Jackson, 746 F.3d at 960, 962–63.

Several legal treatises that were in wide circulation

throughout the founding era support our textual

understanding of “bear arms.” In an early American edition

of Blackstone’s Commentaries on the Laws of England—

indeed, the “most important” edition, as Heller points out,

see 554 U.S. at 594—St. George Tucker, a law professor at

the College of William & Mary and former influential

Antifederalist, insisted that the right to armed self-defense is

the “first law of nature” and that “the right of the people to

keep and bear arms” is the “true palladium of liberty.” 1 St.

George Tucker, Blackstone’s Commentaries: With Notes of

Reference to the Constitution and Laws of the Federal

Government of the United States; and of the Commonwealth

of Virginia app. n.D. at 300 (Phil., William Young Birch &

Abraham Small 1803); see also McDonald, 561 U.S. at 769

(treating Tucker’s notes on Blackstone as heavily instructive

in interpreting the Second Amendment); Heller, 554 U.S. at

606 (same). And in advocating for the prerogative of the

Judiciary to strike down unconstitutional statutes, Tucker

wrote: “If, for example, congress were to pass a law

prohibiting any person from bearing arms, as a means of

preventing insurrections, the judicial courts, . . . would be

able to pronounce decidedly upon the constitutionality of

these means.” Tucker, supra, at 289; see also Michael P.

O’Shea, Modeling the Second Amendment Right to Carry

Arms (I): Judicial Tradition and the Scope of “Bearing

Arms” for Self-Defense, 61 Am. U. L. Rev. 585, 637–38

(2012). Indeed, as Tucker explained, “[i]n many parts of the

United States, a man no more thinks, of going out of his

house on any occasion, without his rifle or musket in his

18 YOUNG V. STATE OF HAWAII

hand, than a European fine gentleman without his sword by

his side.” Tucker, supra, vol. 5, app., n.B, at 19.

Blackstone himself espoused a similarly sacred view on

the right to bear arms for Englishmen, which was most

notably codified in the 1689 English Declaration of Rights

as the right of Protestants to “have Arms for their Defense

suitable to their Conditions and as allowed by Law.” Bill of

Rights 1689, 1 W. & M., c. 2 (Eng.); see also Alden v. Maine,

527 U.S. 706, 715 (1999) (noting that Blackstone’s works

“constituted the preeminent authority on English law for the

founding generation”). As Blackstone explained, the 1689

Declaration enshrined “the natural right of resistance and

self-preservation” and “the right of having and using arms

for self-preservation and defence.” 1 William Blackstone,

Commentaries *144. 8 It followed from Blackstone’s

premise that such a right, the predecessor to our Second

Amendment, “was by the time of the founding understood to

be an individual right protecting against both public and

private violence.” Heller, 554 U.S. at 594 (emphasis added);

see also 2 William Blackstone, Commentaries on the Laws

of England 441 (Edward Christian ed., 1795) (“[E]veryone

8

Blackstone was far from alone in viewing the right to self-defense

as a natural right, thus “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 *119. Quite a few

scholars and commentators of that era on either side of the Atlantic

likewise championed a natural right to defend oneself. See Leonard W.

Levy, Origins of the Bill of Rights 140–41 (2001) (referencing a 1768

article in the prominent colonial newspaper A Journal of the Times that

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”); see also 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 . . . .”).

YOUNG V. STATE OF HAWAII 19

is at liberty to keep or carry a gun, if he does not use it for

the [unlawful] destruction of game.”).

C

Following Heller’s historical imperative, we next move

to nineteenth century judicial interpretations of the right to

bear arms, whether as part of the Second Amendment or

analogous state constitutional provisions. See 554 U.S. at

605 (“We now address how the Second Amendment was

interpreted from immediately after its ratification through

the end of the 19th century.”). As we will soon discover,

many of the same nineteenth century cases marshalled in

Heller to prove that the Second Amendment secures an

individual right to self-defense reveal just as persuasively

that the Second Amendment must encompass a right to carry

a firearm openly outside the home.

1

We begin with Bliss v. Commonwealth, 12 Ky. (2 Litt.)

90 (1822), cited in Heller, 554 U.S. at 585 n. 9, a decision

“especially significant both because it is nearest in time to

the founding era and because the state court assumed (just as

[Heller] does) that the constitutional provision at issue

codified a preexisting right.” Nelson Lund, The Second

Amendment, Heller, and Originalist Jurisprudence,

56 UCLA L. Rev. 1343, 1360 (2009). Interpreting

Kentucky’s Second Amendment analogue—providing that

“the right of the citizens to bear arms in defense of

themselves and the state, shall not be questioned”—the

state’s highest court had no doubt that any law restricting the

public carry of firearms would “import a restraint on the

right of the citizens to bear arms.” Bliss, 12 Ky. at 90–92.

The court then invalidated a restriction on the concealed

carry of weapons, despite the availability of open carry,

20 YOUNG V. STATE OF HAWAII

reasoning that “whatever restrains the full and complete

exercise of [the right to bear arms], though not an entire

destruction of it, is forbidden by the explicit language of the

constitution.” See id. The Bliss court’s strict approach to

restraints on the concealed carry of firearms was an outlier

in the Nineteenth Century, see Peruta II, 824 F.3d at 935–

36, and Kentucky did later amend its constitution to allow

the legislature to “pass laws to prevent persons from carrying

concealed arms,” Ky. Const. art. XIII, § 25. Nonetheless, the

Kentucky constitutional convention left untouched the

premise in Bliss that the right to bear arms protects open

carry.

In Tennessee, the state’s highest court offered its

interpretation of the right to bear arms eleven years after

Bliss. See Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833),

cited in Heller, 554 U.S. at 585 n.9. After he was convicted

of disturbing the peace by appearing armed in public,

Simpson faulted the indictment for failing clearly to require

proof of actual violence. Id. at 357–58. The high court

agreed, because—even assuming that colonial law did not

require proof of actual violence to punish colonists for

walking with weapons—the Tennessee “constitution ha[d]

completely abrogated it.” Id. at 360. No such prohibition

could survive the state constitution’s grant of “an express

power . . . secured to all the free citizens of the state to keep

and bear arms for their defence, without any qualification

whatever as to their kind or nature.” Id. Absent an act of

violence, then, Simpson’s indictment for merely carrying

firearms could allege no crime tolerable to the constitution

of Tennessee. See id. at 360–62.

The Alabama Supreme Court joined the chorus seven

years later. See State v. Reid, 1 Ala. 612 (1840), cited in

Heller, 554 U.S. at 629. Interpreting the Alabama “right to

YOUNG V. STATE OF HAWAII 21

bear arms, in defense of []self and the State,” the high court

declared that an Alabamian must be permitted some means

of carrying a weapon in public for self-defense. Id. at 615–

16. The court ultimately upheld a restriction on “the evil

practice of carrying weapons secretly,” citing the

legislature’s power “to enact laws in regard to the manner in

which arms shall be borne. . . . as may be dictated by the

safety of the people and the advancement of public morals.”

Id. at 616. But the court made clear where that power of the

legislature ran dry:

We do not desire to be understood as

maintaining, that in regulating the manner of

bearing arms, the authority of the Legislature

has no other limit than its own discretion. A

statute which, under the pretence of

regulating, amounts to a destruction of the

right, or which requires arms to be so borne

as to render them wholly useless for the

purpose of defence, would be clearly

unconstitutional.

See id. at 616–17.

The Georgia Supreme Court embraced precisely that

position six years later, making explicit what Reid intimated.

See Nunn v. State, 1 Ga. 243 (1846), cited in Heller, 554 U.S.

at 612, 626, 629. There, the Georgia high court considered a

Second Amendment challenge to a statute creating a

misdemeanor for carrying a pistol, either openly or

concealed. Id. at 246. Starting off with a clear statement of

the constitutional guarantee, the court explained: “The right

of the whole people, old and young, men, women and boys,

and not militia only, to keep and bear arms of every

description, and not such merely as are used by the militia,

22 YOUNG V. STATE OF HAWAII

shall not be infringed, curtailed, or broken in upon, in the

smallest degree . . . .” Id. at 251 (emphasis omitted). And

with those Second Amendment lines properly set, the court

held that Georgia’s statute went too far:

We are of the opinion, then, that so far as the

act of 1837 seeks to suppress the practice of

carrying certain weapons secretly, that it is

valid, inasmuch as it does not deprive the

citizen of his natural right of self-defence, or

of his constitutional right to keep and bear

arms. But that so much of it, as contains a

prohibition against bearing arms openly, is

in conflict with the Constitution, and void . . .

Id. (emphasis added). Critically, we must afford Nunn’s

understanding of the Second Amendment a good deal of

weight, because, as Heller explains, “[i]ts opinion perfectly

captured the way in which the operative clause of the Second

Amendment furthers the purpose announced in the prefatory

clause.” 554 U.S. at 612; see also O’Shea, supra, at 627 (“No

case, historic or recent, is discussed more prominently or

positively in Heller than the Georgia Supreme Court’s 1846

decision in Nunn v. State.”).

The Louisiana Supreme Court soon followed the course

set by Alabama and Georgia. See State v. Chandler, 5 La.

Ann. 489 (1850), cited in Heller, 554 U.S. at 613, 626. The

high court first rejected Chandler’s Second Amendment

challenge to a Louisiana law prohibiting concealed carry,

reasoning that the law was “absolutely necessary to

counteract a vicious state of society, growing out of the habit

of carrying concealed weapons, and to prevent bloodshed

and assassinations committed upon unsuspecting persons.”

Id. at 489–90. But, in precisely the same manner as the Nunn

YOUNG V. STATE OF HAWAII 23

and Reid courts, the Chandler court drew the line which the

legislature could not cross. As the court explained: “[The

prohibition on concealed carry] interfered with no man’s

right to carry arms . . . ‘in full open view,’ which places men

upon an equality. This is the right guaranteed by the

Constitution of the United States . . . .” Id. at 490; see also

Heller, 554 U.S. at 613 (citing favorably Chandler’s holding

that “citizens had a right to carry arms openly”).

Thus, each of these nineteenth century cases found

instructive by Heller when settling the Second Amendment

as an individual right to self-defense is just as instructive

when evaluating the application of that right outside the

home. While nineteenth century legislatures enjoyed latitude

to regulate the “manner in which arms shall be borne,” no

legislature in these states could, “under the pretence of

regulating,” destroy the right to carry firearms in public

altogether. See Reid, 1 Ala. at 616–17. Accordingly, even

though our court has read these cases to exclude concealed

carry from the Second Amendment’s protections, see Peruta

II, 824 F.3d at 933–36, the same cases command that the

Second Amendment must encompass a right to open carry. 9

9

The dissent faults our reliance on decisions from the South,

implying that the thorough analysis found in such opinions must have

been the product of a “culture where slavery, honor, violence, and the

public carrying of weapons were intertwined.” Dissent at 6 (citations and

quotations omitted). To say the least, we are puzzled. The dissent

overlooks the fact that the Southern cases on which we rely only arose

because the legislatures in those states had enacted restrictions on the

public carry of firearms. Indeed, were it the case that the Southern culture

of slavery animated concerns to protect the right to open carry, why

would the Georgia legislature have sought to ban open carry in the first

place?

24 YOUNG V. STATE OF HAWAII

2

We are well aware that there were judicial proponents of

a more limited right to bear arms during the nineteenth

century.

Most prominent is the Arkansas Supreme Court’s 1842

interpretation of the right in State v. Buzzard, 4 Ark. 18

(1842). There, a divided court upheld an Arkansas

prohibition on the concealed carry of “any pistol, dirk,

butcher or large knife, or a sword in a cane,” but each judge

in the splintered majority appeared poised to go much

further. Chief Justice Ringo advocated his view that the

Second Amendment served as no bar to the Arkansas

legislature’s authority to restrict any carrying of firearms:

“[N]o enactment on this subject, which neither directly nor

indirectly so operates as to impair or render inefficient the

means provided by the Constitution for the defense of the

State, can be adjudged invalid on the ground that it is

repugnant to the Constitution.” Id. at 27. But Justice

Dickinson went even further, writing that the Second

Amendment was nothing “but an assertion of that general

right of sovereignty belonging to independent nations to

regulate their military force,” thus finding no individual right

within its guarantee. Id. at 32; but see id. at 34–35 (Lacy, J.,

dissenting) (viewing the Second Amendment as an

individual right to self-defense).

As a more fundamental matter, too, we cannot agree with the

dissent’s choice to cast aside Southern cases. Heller placed great

emphasis on cases from the South, and Nunn in particular. We are an

inferior court. Can we really, while keeping a straight face, now say that

such cases have little persuasive effect in analyzing the contours of the

Second Amendment? We think not.

YOUNG V. STATE OF HAWAII 25

Several nineteenth century courts hewed to Buzzard’s

approach and upheld restrictions on the public carry of

weapons without emphasizing, as did courts in Nunn’s camp,

the limits of legislative authority. See Hill v. State, 53 Ga.

472, 474–75 (1874) (upholding prohibition on carrying

weapons “to any court of justice . . . or any place of public

worship, or any other public gathering . . . except militia

muster grounds”); English v. State, 35 Tex. 473, 474 (1871)

(upholding prohibition on carrying “pistols, dirks, daggers,

slungshots, swordcanes, spears, brass-knuckles and bowie

knives”); State v. Workman, 14 S.E. 9, 10–12 (W. Va. 1891)

(upholding presumption of criminality “when a man is found

going around with a revolver, razor, billy, or brass knuckles

upon his person”).

Yet, with Heller on the books, cases in Buzzard’s flock

furnish us with little instructive value. That’s because Heller

made clear that the Second Amendment is, and always has

been, an individual right centered on self-defense; it has

never been a right only to be exercised in connection with a

militia. See, e.g., 554 U.S. at 592, 599, 616, 628. And bound

as the inferior court that we are, we may only assess whether

the right to bear arms extends outside the home on the

understanding that the right is an individual one centered on

self-defense. Thus, Heller knocks out the load-bearing

bricks in the foundation of cases like Buzzard, for those

courts only approved broad limitations on the public carry of

weapons because such limitations in no way detracted from

the common defense of the state. See, e.g., Buzzard, 4 Ark.

at 27 (opinion of Ringo, C.J.) (“The act in question does not,

in my judgment, detract anything from the power of the

people to defend their free state and the established

institutions of the country.”); Hill, 53 Ga. at 475 (“In what

manner the right to keep and bear these pests of society

[dirks, bowie knives, and the like], can encourage or secure

26 YOUNG V. STATE OF HAWAII

the existence of a militia, and especially of a well regulated

militia, I am not able to divine.”); English, 35 Tex. at 477

(“The terms dirks, daggers, slungshots, sword-canes, brass-

knuckles and bowie knives, belong to no military

vocabulary.”); Workman, 14 S.E. at 11 (“So, also, in regard

to the kind of arms referred to in the amendment, it must be

held to refer to the weapons of warfare to be used by the

militia . . . .”); see also Wrenn, 864 F.3d at 658 (reasoning

that such cases are “sapped of authority by Heller”); Moore,

702 F.3d at 941 (regarding “the historical issues as settled by

Heller”); O’Shea, supra, at 653 (same). 10

3

Once we set aside each of those cases that rest on a

militia-focused view of the right to bear arms, we find only

two cases from the nineteenth century that might be read to

allow severe deprivations on open carry.

10

Not all cases with views of the Second Amendment contrary to

Heller took the Buzzard approach, however. Several of such cases

protected the right to bear arms in a way that supports, or is at least

consistent with, the right to open carry. See Andrews v. State, 50 Tenn.

(3 Heisk.) 165, 186–87 (1871) (holding that, if a pistol “is 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.”); Cockrum v. State,

24 Tex. 394, 401–03 (1859) (construing the Second Amendment purely

as a tyranny-deterring measure, but nevertheless barring the complete

prohibition of carrying a bowie-knife, “an exceeding[ly] destructive

weapon”).

YOUNG V. STATE OF HAWAII 27

The first, State v. Duke, is an 1874 decision from the

Supreme Court of Texas, where the court concluded that the

legislature could confine the carry of firearms to certain

places, and only when the bearer had reasonable grounds to

fear an attack. 42 Tex. 455, 456–59 (1874). Why the

departure from the Nunn line of cases? One need only take a

peek at the Texas constitutional provision that served as the

basis for the court’s decision, which provided that “[e]very

person shall have the right to keep and bear arms in the

lawful defense of himself or the State, under such

regulations as the Legislature may prescribe.” See id. at 458

(emphasis added). While the Second Amendment surely

tolerates some degree of regulation, its very substance is not

so explicitly limited by such a regulatory caveat. We

shouldn’t pencil one in. 11

The second case, Walburn v. Territory, is a decision from

the Supreme Court of the Territory of Oklahoma, coming at

the very end of the nineteenth century in 1899. 59 P. 972

(Okla. Terr. 1899) (Mem). Convicted of carrying a revolver

on his person, Walburn challenged his conviction on several

grounds, one of which being an argument that Oklahoma’s

carrying prohibition was “in conflict with the constitution of

the United States.” Id. at 973. Beyond such a general

assertion, however, “[n]o authorities [were] cited in support

of this position, nor [was] the proposition very earnestly

urged.” Id. Accordingly, the court rejected the challenge:

“As at present advised, we are of the opinion that the statute

11

But “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 law “respected the

right to carry a pistol openly when needed for self-defense.” O’Shea,

supra, at 655 (quoting Duke, 42 Tex. at 459).

28 YOUNG V. STATE OF HAWAII

violates none of the inhibitions of the constitution of the

United States, and that its provisions are within the police

power of the territory.” Id. (emphasis added). We see little

reason to credit much a decision that explicitly

acknowledged a lack of due consideration. Cf. Heller,

554 U.S. at 623–24 (rejecting dissent’s reliance on United

States v. Miller, 307 U.S. 174 (1939), in part because of the

incomplete briefing in Miller and its lack of a thorough

consideration of the history of the Second Amendment).

D

Finally, as did the Court in Heller, we turn to the

legislative scene following the Civil War. See 554 U.S. at

614–16. While considering materials that post-date the Bill

of Rights by at least 75 years might stretch the term “original

public meaning,” Heller explains that, “[i]n the aftermath of

the Civil War, there was an outpouring of discussion of the

Second Amendment in Congress and in public discourse, as

people debated whether and how to secure constitutional

rights for newly free slaves.” Id. at 614. So, although such

evidence “do[es] not provide as much insight into [the

Second Amendment’s] original meaning as earlier sources,”

we nevertheless consider such evidence somewhat

instructive on its meaning. 12 See id.

12

This evidence is not more probative when applying the right to

state and local governments. While McDonald relied extensively on

history from the post–Civil War period when deciding whether the right

to bear arms is “among those fundamental rights necessary to our system

of ordered liberty,” thus incorporating it against the States, 561 U.S. at

770–78, McDonald also made clear that the substantive restrictions the

right imposes on states are precisely the same as those imposed on the

federal government, id. at 785–86; id. at 805 (Thomas, J., concurring in

part and concurring in the judgment) (agreeing that “the right to keep and

YOUNG V. STATE OF HAWAII 29

Particularly relevant in this period are the efforts of many

Southern states to disarm free blacks after the Civil War by

adopting Black Codes, because “[t]hose who opposed these

injustices frequently stated that they infringed blacks’

constitutional right to keep and bear arms.” Heller, 554 U.S.

at 614–16; see also Clayton E. Cramer, The Racist Roots of

Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (1995) (“The

various Black Codes adopted after the Civil War required

blacks to obtain a license before carrying or possessing

firearms or bowie knives . . . . These restrictive gun laws

played a part in provoking Republican efforts to get the

Fourteenth Amendment passed.”).

The Supreme Court’s infamous decision in Dred Scott v.

Sanford, 60 U.S. 393 (1857), rendered four years before the

first shots were fired at Fort Sumter, would pave the way for

such Black Codes to proliferate after the war. See

McDonald, 561 U.S. at 807–08, 822, 849 (Thomas, J.,

concurring in part and concurring in the judgment) (looking

to Dred Scott as necessary context in Civil War era historical

analysis). Writing for the Court, Chief Justice Taney—

disgracefully—dismissed Dred Scott’s suit for freedom after

concluding that blacks 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 60 U.S. at 407. To hold

otherwise, Chief Justice Taney wrote, would have “entitled

[blacks] to the privileges and immunities of citizens” and

thus granted them the rights he felt only whites could enjoy:

bear arms set forth in the Second Amendment [is] ‘fully applicable to the

States’” (emphasis added)). Because Heller ascribed less weight to

evidence from the post-Civil War period when interpreting the Second

Amendment’s restrictions on the federal government, 554 U.S. at 614, it

necessarily follows that the evidence is less probative when interpreting

the Amendment’s restrictions on state and local governments.

30 YOUNG V. STATE OF HAWAII

“[I]t would give them the full liberty of speech in public and

in private upon all subjects upon which its own citizens

might speak; to hold public meetings upon political affairs,

and to keep and carry arms wherever they went.” Id. at 416–

17.

Perhaps emboldened by Chief Justice Taney’s opinion,

“those who sought to retain the institution of slavery . . .

[began] 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). And the pervasive fear of slave

rebellions “led Southern legislatures to take particularly

vicious aim at the rights of free blacks and slaves to speak or

to keep and bear arms for their defense.” Id. at 845; see also

Act of Dec. 23, 1833, § 7, 1833 Ga. Acts 226, 228 (“[I]t shall

not be lawful for any free person of colour in this state, to

own, use, or carry fire arms of any description whatever.”).

The subsequent Civil War was far from a perfect fix to

these problems. 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.”). Emblematic

of these efforts was an 1865 law in Mississippi that declared

“no freedman, free negro or mulatto . . . shall keep or carry

fire-arms of any kind, or any ammunition, dirk or bowie

knife.” McDonald, 561 U.S. at 771 (quoting Certain

Offenses of Freedmen, 1865 Miss. Laws p. 165, § 1, in

1 Documentary History of Reconstruction 289 (W. Fleming

ed. 1950)). The law was vigorously enforced. As an 1866

letter from Rodney, Mississippi to the Harper’s Weekly

YOUNG V. STATE OF HAWAII 31

magazine lamented, “[t]he militia of this county have seized

every gun and pistol found in the hands of the (so called)

freedmen. . . . They claim that the statute laws of Mississippi

do not recognize the negro as having any right to carry

arms.” The Labor Question at the South, Harper’s Weekly,

Jan. 13, 1866, at 19. Seeking help from outside of the state,

the letter emphasized that such Mississippi laws did “not

protect, but insist[ed] upon infringing on their liberties.” Id.

Worse still, “[w]ithout federal enforcement of the

inalienable right to keep and bear arms, . . . militias and

mobs were tragically successful in waging a campaign of

terror against [newly free slaves].” McDonald, 561 U.S. at

856 (Thomas, J., concurring in part and concurring in the

judgment).

Such blatant injustices did not continue unnoticed by

Congress, which established the Freedmen’s Bureau to aid

newly freed blacks still suffering in the Reconstruction

South. Working to fulfill its mandate, an 1866 report by the

Bureau targeted a Kentucky law that sought to deprive

freedmen of their Second Amendment rights: “[T]he civil

law [of Kentucky] prohibits the colored man from bearing

arms . . . . Their arms are taken from them by the civil

authorities . . . . Thus, the right of the people to keep and bear

arms as provided in the Constitution is infringed.” Heller,

554 U.S. at 614–15 (quoting H.R. Exec. Doc. No. 70, 39th

Cong., 1st Sess., 233, 236). But Kentucky was far from the

only state subject to scrutiny; a joint congressional report

decried a South Carolina practice of “seizing all fire-arms

found in the hands of the freedmen.” Id. at 615 (quoting Joint

Comm. on Reconstruction, H.R. Rep. No. 30, 39th Cong.,

1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier

General R. Saxton)). The joint report plainly envisioned a

right to bear arms outside the home, emphasizing that

32 YOUNG V. STATE OF HAWAII

freedmen in South Carolina “need [firearms] to kill game for

subsistence.” Id.

Indeed, even those congressmen who opposed federal

action to protect the rights of freedmen understood the

fundamental constitutional rights at stake. Senator Davis of

Kentucky acknowledged, alongside the writ of habeas

corpus, the right “for every man bearing his arms about him

and keeping them in his house, his castle, for his own

defense,” but argued that congressional action on the matter

would usurp the role of Kentucky in caring for its citizens.

See Cong. Globe, 39th Cong., 1st Sess. 370–71 (1866)

(emphasis added), cited in Heller, 554 U.S. at 616.

To summarize the history canvassed thus far: the

important founding-era treatises, the probative nineteenth

century case law, and the post-civil war legislative scene

each reveal a single American voice. The right to bear arms

must include, at the least, the right to carry a firearm openly

for self-defense.

E

But wait! The dissent says we have yet to consider the

impact of historical “good cause” restrictions on the scope

of the Second Amendment right to carry a firearm in public.

According to the dissent, many states heavily restricted the

public carry of weapons absent good cause to fear injury to

person or property. Dissent at 65–67. A review of the

dissent’s evidence compels us to disagree.

Many states during the nineteenth century required

people who carried weapons in a disruptive fashion to post a

bond (or a “surety”) to ensure their good behavior. See, e.g.,

The Revised Statutes of the Commonwealth of Massachusetts

750 § 16 (Boston, Theron Metcalf & Horace Mann 1836)

YOUNG V. STATE OF HAWAII 33

(hereinafter Mass. Acts). And to enforce the surety

requirement, such states commonly relied on a citizen-

complaint mechanism. That is, if an arms carrier gave any

observer “reasonable cause to fear an injury, or breach of the

peace,” the observer could complain to his local magistrate,

who might then require the disruptive carrier “to find

sureties for keeping the peace,” generally “for a term not

exceeding six months.” See id. But if the disruptive carrier

also had “reasonable cause to fear an assault or other injury,”

such person could be excused from posting sureties despite

the complaint. Id. As an example of the pieces put together,

Michigan’s 1846 surety law provided that if any person went

armed with an “offensive and dangerous weapon, without

reasonable cause to fear an assault or other injury . . . he may,

on complaint of any person having reasonable cause to fear

an injury or breach of the peace, be required to find sureties

for keeping the peace.” The Revised Statutes of the State of

Michigan 692 § 16 (Detroit, Sanford M. Green 1846).

The dissent erroneously characterizes surety laws as

imposing a severe restriction on the public carry of weapons

absent good cause to fear injury. And its analysis of the

actual historical evidence is, in a word, cursory. While the

dissent focuses on the exception to the surety requirement

for carriers with a specialized need for self-defense, it

ignores the clearly limited scope of the requirement in the

first place: only upon a well-founded complaint that the

carrier threatened “injury or a breach of the peace” did the

good cause exception come into play, “by exempting even

the accused” from the burden of paying sureties. Wrenn,

864 F.3d at 661. Thus, “[a] showing of special need did not

expand carrying for the responsible; it shrank burdens on

carrying by the (allegedly) reckless.” Id.

34 YOUNG V. STATE OF HAWAII

Indeed, what is most troubling about the dissent’s

historical “analysis” is that it reliably quotes the good cause

exception to the surety requirements but hardly mentions the

limiting citizen-complaint mechanism present in virtually

every single one of its quoted sources. See The Statutes of

Oregon 220 § 17 (Oregon, Asahel Bush 1854) (complainant

must possess “reasonable cause to fear an injury, or breach

of the peace”); The Revised Statutes of the Territory of

Minnesota 528 § 18 (Saint Paul, James M. Goodhue 1851)

(complainant must possess “reasonable cause to fear an

injury or breach of the peace”); The Revised Statutes of the

State of Maine 709 § 16 (Hallowell, Glazier, Masters &

Smith 1847) (complainant must possess “cause to fear an

injury or breach of the peace”); Statutes of the Territory of

Wisconsin 381 § 16 (Albany, Packard, Van Benthuysen &

Co. 1839) (complainant must possess “reasonable cause to

fear an injury or breach of the peace”); 1836 Mass. Acts 750

§ 16 (complainant must possess “reasonable cause to fear an

injury, or breach of the peace”). The dissent might wish to

set aside the requirements to complain under surety laws, but

we suspect those who actually did complain under such laws

would hesitate before treating the requirements so lightly.

Were a complainant to bring an “unfounded, frivolous or

malicious” claim that an arms carrier threatened the public

peace, the magistrate would not only dismiss the complaint,

but also hold the complainant “answerable to the magistrate

and the officer for their fees.” See, e.g., 1836 Mass. Acts 749

§ 7. 13

13

Only one of the surety laws cited by the dissent lacks explicit

reference to the citizen-complaint mechanism. An 1847 Virginia law

provided that if any person went armed with “any offensive or dangerous

weapon, without reasonable cause to fear an assault or other injury . . .

he may be required to find sureties for keeping the peace.” Acts of the

YOUNG V. STATE OF HAWAII 35

In any event, even if all arms carriers without good cause

had to post sureties (they did not), the laws would not add

much to our analysis. Heller saw little weight in historical

prohibitions that promised only “a small fine and forfeiture

of the weapon (or in a few cases a very brief stay in the local

jail).” 554 U.S. at 633. Certainly, an obligation to post a

surety fits that mold. Like a small fine, sureties are “‘akin to

modern penalties for minor public-safety infractions like

speeding or jaywalking,’ which makes them (in the Court’s

view) poor evidence of limits on the [Second] Amendment’s

scope.” Wrenn, 864 F.3d at 661 (quoting Heller, 554 U.S. at

633–34). In fact, sureties seem to us even less noteworthy

than small fines, since a disruptive carrier—once he posted

a surety—“could go on carrying without criminal penalty.”

Id. And if he refrained from breaching the peace, of course,

his money posted as a surety would be returned in a matter

of months.

All in all, we are unmoved by the dissent’s misguided

interpretation of history. While surety laws used the

language “reasonable cause,” they bear no resemblance to

modern-day good cause requirements to carry a firearm. 14

General Assembly of Virginia 129 § 16 (Richmond, Samuel Shepherd

1848). But the Virginia law doesn’t tell us much about the right of

Virginians to carry weapons in public, since it only provided that the

arms carrier “may” be required to find sureties, with no clarification.

What we do know, however, is that “may” certainly does not mean

“shall,” neither today nor in 1847.

14

Nor are we much persuaded by the remainder of the dissent’s

historical evidence. Dissent at 10–12. The dissent is correct, of course,

that near the close of the nineteenth century and the beginning of the

twentieth century some states began enacting stricter limitations on the

public carry of weapons. See, e.g., 1888 Idaho Sess. Laws 23 (prohibiting

public carry of weapons within the “confines of any city, town or

36 YOUNG V. STATE OF HAWAII

F

One more historical misconception to dispel.

The County and the State, apparently seeing little room

to quarrel with American history, argue that the English right

to carry weapons openly was limited for centuries by the

1328 Statute of Northampton, and that we should

incorporate wholesale that understanding of English rights

into our Constitution’s Second Amendment. Exploring

fourteenth century English law books (after a thorough

dusting) reveals that the statute allowed no ordinary

Englishman to “bring . . . force in affray of the peace, nor to

go nor ride armed by night nor by day, in Fairs, Markets, nor

in the presence of the Justices or other Ministers, nor in no

part elsewhere.” Statute of Northampton 1328, 2 Edw. 3, c.

3 (Eng.). 15 But the statute’s effects did not remain in the

fourteenth century, as it “would become the foundation for

firearms regulation in England for the next several

centuries.” Peruta II, 824 F.3d at 930. Our court has

village”). But it is difficult to ascribe much weight to isolated statutes,

with no record of enforcement, that were enacted so distant from the

founding. Cf. Heller, 554 U.S. at 632 (“[W]e would not stake our

interpretation of the Second Amendment upon a single law . . . that

contradicts the overwhelming weight of other evidence . . . .”). And we

are particularly reluctant to rely on such statutes given that it is

impossible to discern whether they were enacted with a militia or a self-

defense oriented view of the right to bear arms in mind. See O’Shea,

supra, at 642–43 (noting the popularity of a “hybrid view” of the Second

Amendment during the post-Civil War period, where the right was

individual but “the chief function of the right . . . was to support civic

purposes such as military readiness”).

15

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 136, ch. 63, § 1 (1716).

YOUNG V. STATE OF HAWAII 37

interpreted the statute and its enforcement history as

consistently prohibiting concealed carry, see id. at 932, but

we have not until now considered whether it also prohibited

open carry.

1

As one would expect, delineating the precise lines within

which a fourteenth century English statute was enforced is a

difficult task. See, e.g., See Patrick J. Charles, The Faces of

the Second Amendment Outside the Home: History Versus

Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 12

(2012). In the immediate period after Parliament enacted the

statute, it appears that some English constables were ordered

to enforce the statute literally and to arrest all those who

dared to “go armed,” without regard for the bearer’s apparent

peacefulness. See Letter to the Mayor and Bailiffs of York

(Jan. 30, 1334), in Calendar of the Close Rolls, Edward III,

1333–1337 294 (H.C. Maxwell-Lyte ed. 1898). But not all

English constables faced similar orders; for example,

Northumberland officers were ordered in 1332 to arrest only

“persons riding or going armed to disturb the peace.” Letter

to the Keeper and Justices of Northumberland (Oct. 28,

1332), in Calendar of the Close Rolls, Edward III, 1330–

1333 610 (H.C. Maxwell-Lyte ed. 1898) (emphasis added).

Nevertheless, looking only to Chaucer’s fourteenth

century England provides little instructive force, particularly

because “[c]ommon-law rights developed over time.” See

Wrenn, 864 F.3d at 660. And over the next few centuries, a

narrow interpretation of the statute—like that given to

Northumberland constables in 1332—began to dominate the

English legal landscape. Writing almost 300 years after the

statute was enacted, Serjeant William Hawkins, an English

legal commentator praised by Blackstone, explained that “no

wearing of Arms is within the meaning of this Statute, unless

38 YOUNG V. STATE OF HAWAII

it be accompanied with such Circumstances as are apt to

terrify the People; from whence it seems clearly to follow,

That Persons of Quality are in no Danger of Offending

against this Statute by wearing common Weapons.”

1 William Hawkins, A Treatise of the Pleas of the Crown

136 § 9 (1716). 16 Hawkins’s narrow interpretation of the

statute was in accord with that of the Court of King’s Bench,

which clarified that “the meaning of the [Statute of

Northampton] was to punish people who go armed to terrify

the King’s subjects.” Sir John Knight’s Case, 87 Eng. Rep.

75, 76, 3 Mod. 117 (K.B. 1686) (emphasis added). 17

16

Indeed, even some wearing of arms that might have been “apt to

terrify the People” fell outside of the statutes prohibitions, as Hawkins

explained that one who “arm[ed] himself to suppress Rioters, Rebels, or

Enemies” or “upon a Cry made for Arms to keep the Peace” would face

no punishment under the statute. See id. at § 10.

17

We disagree with the view that Sir John Knight’s Case should

only be read for the proposition that government agents were exempt

from the statute. See Charles, supra, at 28–30. The case reports leave not

so much as a hint that Knight’s loyalty to the Crown was the critical issue

before the Court of King’s Bench. Indeed, Knight was charged with

“goeing with a blunderbus in the streets, to the terrifyeing his majesties

subjects.” 1 Narcissus Luttrell, A Brief Historical Relation of State

Affairs from September 1678 to April 1714 380 (Oxford Univ. Press

1857) (emphasis added). And contemporaneous reports of his acquittal

reported that “sir John Knight, the loyall, was tried at the court of kings

bench for a high misdemeanor, in goeing armed up and down with a gun

att Bristoll; who being tried by a jury of his own citty, that knew him

well, he was acquitted, not thinking he did it with any ill design.” Id. at

389 (emphasis added); see also Moore, 702 F.3d at 936 (interpreting the

case in the same manner). After his acquittal, Sir Knight was required to

post a bond for good behavior, Rex v. Knight, 90 Eng. Rep. 331,

Comberbach 41 (1686), a peculiar measure for one supposedly cloaked

in government authority.

YOUNG V. STATE OF HAWAII 39

Of course, an untoward intent to terrorize the local

townsfolk was not always needed to face arrest and

imprisonment; as Blackstone interpreted the statute—an

interpretation credited by Heller, 554 U.S. at 627—“going

armed, with dangerous or unusual weapons, is a crime

against the public peace, by terrifying the good people of the

land.” 4 William Blackstone, Commentaries *148–*149

(emphasis added). Indeed, Hawkins wrote that “a Man

cannot excuse the wearing such Armour” even “by alledging

that such a one threatened him.” Hawkins, supra, at 136 § 8.

But clearly not all weapons can be characterized as

“dangerous or unusual,” else Heller’s exemption of Second

Amendment protection for weapons of that kind would

swallow the Amendment’s protections as a whole. See

554 U.S. at 627; Moore, 702 F.3d at 936 (“[T]he Court

cannot have thought all guns are ‘dangerous or unusual’ and

can be banned, as otherwise there would be no right to keep

a handgun in one’s home for self-defense.”).

Consequently, we see little in the more recent historical

record to suggest that the Statute of Northampton barred

Englishmen from carrying common (not unusual) arms for

defense (not terror).

2

More fundamentally, however, we respectfully decline

the County’s and the State’s invitation to import English law

wholesale into our Second Amendment jurisprudence.

While English law is certainly relevant to our historical

inquiry because the Second Amendment “codified a pre-

existing right,” Heller, 554 U.S. at 592, our aim here is not

merely to discover the rights of the English. Indeed, there is

a scholarly consensus that the 1689 English right to have

arms was less protective than its American counterpart. See

Jonathan Meltzer, Note, Open Carry for All: Heller and Our

40 YOUNG V. STATE OF HAWAII

Nineteenth-Century Second Amendment, 123 Yale L.J.

1486, 1500 (2014); Joyce Lee Malcolm, To Keep and Bear

Arms: The Origins of an Anglo-American Right 120–21

(1994). That is because the English right was “not available

to the whole population, given that it was restricted to

Protestants, and like all written English rights it was held

only against the Crown, not Parliament.” Heller, 554 U.S. at

593. Accordingly, it only guaranteed the right of Protestants

to have arms “as allowed by law.” See Malcom, supra, at

121, 162. But not all laws that restricted the right of

Englishmen to have arms found a place across the Atlantic.

As St. George Tucker observed, it would have been strange

to apply in the United States an English law that presumed

any gathering of armed men was treasonous, because “the

right to bear arms is recognized and secured in the

[American] constitution itself.” See Tucker, supra, vol. 5,

app., n.B, at 19; see also Cooley, supra, at 270 (noting that

the Second Amendment “was adopted with some

modification and enlargement from the English Bill of

Rights”); William Rawle, A View of the Constitution of the

United States of America 126 (2d ed. 1829) (writing that the

English right, unlike the Second Amendment, “is allowed

more or less sparingly, according to circumstances”).

Thus, instead of stitching into the Second Amendment

every odd law that hemmed in the rights of fourteenth

century Englishmen, we consider those English laws only to

the extent they inform the original public understanding of

the Second Amendment. See Heller, 554 U.S. at 594 (“By

the time of the founding, the right to have arms had become

fundamental for English subjects.” (emphasis added)). With

our historical inquiry properly framed, the fog encircling the

Statute of Northampton’s “true” meaning clears away, for

the American understanding and implementation of the

YOUNG V. STATE OF HAWAII 41

statute was unambiguously consistent with a robust Second

Amendment right to open carry.

To the extent the Framers considered the Statute of

Northampton as instructive of the pre-existing right to bear

arms, they took a narrow view of its prohibitions. See

Eugene Volokh, The First and Second Amendments,

109 Colum. L.Rev. Sidebar 97, 101 (2009). In that vein,

Justice James Wilson, a leading drafter of the Constitution,

credited Serjeant Hawkins and construed the statute to

prohibit arming oneself “with dangerous and unusual

weapons, in such a manner, as will naturally diffuse a terrour

among the people.” 2 James Wilson, Collected Works of

James Wilson 654 (Kermit L. Hall & Mark D. Hall eds.

1967); see also Volokh, The First and Second Amendments,

supra, at 101 (“American benchbooks for justices of the

peace echoed [Wilson’s observation], citing Hawkins

. . . .”). William Rawle, a prominent member of the

Pennsylvania Assembly that ratified the Constitution,

likewise cited Hawkins and wrote that the right to bear arms

would not rule out a law prohibiting “the carrying of arms

abroad by a single individual, attended with circumstances

giving [observers] just reason to fear that he purposes to

make an unlawful use of them.” Rawle, supra, at 126. 18

18

To the extent that one could read Hawkins as having thought the

Statute of Northampton would permit only “Persons of Quality”

(nobility) to carry weapons, see Hawkins, supra, at 136 § 9, such a class-

based limitation clearly found no place in the United States. Volokh, The

First and Second Amendments, supra, at 101–02. Indeed, neither Justice

Wilson nor William Rawle makes any mention of such a limitation when

citing Hawkins, nor do any other American sources that we have read.

See William W. Hening, The New Virginia Justice, Comprising the

Office and Authority of a Justice of the Peace, in the Commonwealth of

42 YOUNG V. STATE OF HAWAII

Justice Wilson and William Rawle’s reading of the

statute is confirmed by the various state weapons carry

regulations throughout the founding era and beyond that

were expressly modelled after the Statute of Northampton

(“Northampton analogues”). See Eric M. Ruben & Saul

Cornell, Firearm Regionalism and Public Carry: Placing

Southern Antebellum Case Law in Context, 125 Yale L.J.

Forum 121, 128–29 (2015) (“[S]everal early American states

expressly incorporated versions of the Statute of

Northampton into their laws.”). Like the surety laws relied

on by the dissent, the state-enacted Northampton analogues

only sought to regulate disruptive—or more specifically,

terrifying—arms carrying. For example, Massachusetts in

1795 enacted a law authorizing justices of the peace to arrest

“all affrayers, rioters, disturbers, or breakers of the peace,

and such as shall ride or go armed offensively, to the fear or

terror of the good citizens.” 1795 Mass. Acts 436 (emphasis

added); see also 1786 Va. Acts 33 (prohibiting going “armed

by night []or by day, in fairs or markets, or in other places,

in terror of the Country”).

The North Carolina Supreme Court offered a definitive

interpretation of its Northampton analogue in 1843,

providing us with the benefit of a more thorough discussion

of its elements. State v. Huntly, 25 N.C. (3 Ired.) 418 (1843).

After holding that firearms fell within the reach of the crime,

the court clarified:

[I]t is to be remembered that the carrying of a

gun per se constitutes no offence. For any

lawful purpose—either of business or

amusement—the citizen is at perfect liberty

Virginia 18 (1795) (discussing Hawkins’s explanation of the Statute of

Northampton without any reference to “Persons of Quality”).

YOUNG V. STATE OF HAWAII 43

to carry his gun. It is the wicked purpose—

and the mischievous result—which

essentially constitute the crime. He shall not

carry about this or any other weapon of death

to terrify and alarm, and in such manner as

naturally will terrify and alarm, a peaceful

people.

Id. at 422–23. True, the court cited “business or

amusement,” instead of self-defense, as examples of lawful

purposes, but a moment’s thought refutes the notion that

such a list was exhaustive; surely a North Carolinian wasn’t

at liberty to carry his rifle only so long as he twirled it in

amusement. Rather, it was the “wicked purpose” that

“constitute[d] the crime.” Id. at 423.

3

We thus disagree with the dissent’s view that carrying a

weapon was itself sufficient to face punishment under a

state-enacted Northampton analogue. Dissent at 65 n.1. As

that argument goes, when the drafters of virtually every

single state Northampton analogue criminalized going

armed “to the terror” or “in affray” of others, the terror or

affray language was just purposive; that is, “terrorizing the

public was the consequence of going armed,” so such

language was incorporated into the statutes merely to clarify

why going armed was itself unlawful. See Ruben & Cornell,

supra, at 129–30; Charles, supra, at 33.

What an odd way it would be to write a criminal statute!

To interpret such language as merely purposive is to remove

its operative effect, for if going armed was itself unlawful

then clarifying the consequences of going armed adds not an

iota of substance to the crime. Of course, “where the text of

a clause itself indicates that it does not have operative effect,

44 YOUNG V. STATE OF HAWAII

such as ‘whereas’ clauses in federal legislation or the

Constitution’s preamble, a court has no license to make it do

what it was not designed to do.” Heller, 554 U.S. at 578 n.3.

But it is entirely another endeavor to read language mixed in

among operative elements in a criminal statute as merely

purposive. See id. (“[O]perative provisions should be given

effect as operative provisions, and prologues as

prologues.”); Ratzlaf v. United States, 510 U.S. 135, 140–41

(1994) (counseling “heightened” resistance before treating

statutory terms as “words of no consequence . . . when the

words describe an element of a criminal offense”). For

instance, Maine’s 1821 Northampton analogue authorized

the arrest of “all affrayers, rioters, disturbers or breakers of

the peace, and such as shall ride or go armed offensively, to

the fear or terror of the good citizens of this State, or such

others as may utter any menaces or threatening speeches.”

1821 Me. Laws 285. If riding armed were itself unlawful

because it terrorized the good citizens of Maine, it strains

credulity to suggest that Maine drafters would have felt the

need to clarify such reasoning right in the middle of the

statute’s operative provisions. Indeed, why only clarify the

consequences of riding armed, and no other prohibited

conduct?

More troubling, reading the “to the terror” language as

merely purposive frequently places a Northampton analogue

in conflict with its neighboring criminal provisions. Take a

closer look at the Northampton analogue in chapter 97

section 13 of Delaware’s 1852 Revised Statutes, which—in

familiar fashion—authorized the arrest of “all who go armed

offensively to the terror of the people, or are otherwise

disorderly and dangerous.” Revised Statutes of the State of

Delaware, to the Year of Our Lord One Thousand Eight

Hundred and Fifty-Two, Inclusive 333 § 13 (Dover, W.B.

Keen 1852). With that provision in mind, turn to Section 30,

YOUNG V. STATE OF HAWAII 45

where the Delaware Code authorized justices of the peace to

“punish any slave . . . who shall, without the special

permission of his master, go armed with any dangerous

weapon.” Id. at 336 § 30. How might one grant another

permission to “go armed with any dangerous weapon” if one

had no lawful authority to go armed in the first place? Or

consider Tennessee’s 1831 Revised Statutes, which,

immediately after providing its standard-form Northampton

analogue, authorized sheriffs to arrest any person “armed

with the intention of committing a riot or affray.” 1 The

Statute Laws of the State of Tennessee, of a Public and

General Nature 10 (Knoxville, John Haywood & Robert L.

Cobbs 1831). Why on earth would Tennessee have so

limited a sheriff’s authorization to arrest if going armed was

itself unlawful?

Thus, utterly confused by how we might read a

Northampton analogue to prohibit all arms carry, we feel the

better approach with these statutes is to take them at their

word: an American, just like an Englishman, could not go

armed offensively to the terror of the people. Such a

reasonable restriction on public carry is perfectly consistent

with a robust right peacefully to carry a firearm in public. In

all, then, the various Northampton analogues found in states

across the United States confirm that, “whatever

Northampton banned on the shores of England,” the

American right to carry common weapons openly for self-

defense “was not hemmed in by longstanding bans on

carrying.” Wrenn, 864 F.3d at 660–61.

G

Concluding our analysis of text and review of history, we

remain unpersuaded by the County’s and the State’s

argument that the Second Amendment only has force within

the home. Once identified as an individual right focused on

46 YOUNG V. STATE OF HAWAII

self-defense, the right to bear arms must guarantee some

right to self-defense in public. While the concealed carry of

firearms categorically falls outside such protection, see

Peruta II, 824 F.3d at 939, we are satisfied that the Second

Amendment encompasses a right to carry a firearm openly

in public for self-defense. Because section 134-9 restricts

Young in exercising such right to carry a firearm openly, it

burdens conduct protected by the Second Amendment.

IV

Accordingly, we must evaluate section 134-9 under “an

appropriate level of scrutiny.” Jackson, 746 F.3d at 962. In

doing so, we consider “(1) how close the law comes to the

core of the Second Amendment right, and (2) the severity of

the law’s burden on the right.” Id. at 963 (internal quotations

omitted).

We treat this approach as a “sliding scale.” Silvester v.

Harris, 843 F.3d 816, 821 (9th Cir. 2016). On one end, “[a]

law that imposes such a severe restriction on [a] core right

[of the Amendment] that it ‘amounts to a destruction of the

. . . right,’ is unconstitutional under any level of scrutiny.”

Jackson, 746 F.3d at 961 (quoting Heller, 554 U.S. at 629).

On the other end of the spectrum, intermediate scrutiny is

appropriate if the challenged law “does not implicate a core

Second Amendment right, or does not place a substantial

burden on the Second Amendment right.” Id.

A

So, what constitutes the core of the Second Amendment?

As we know, the Second Amendment protects the right “to

keep and bear arms.” U.S. Const. amend. II. The key inquiry

is whether the core of the right encompasses both verbs, or

only one: keeping and bearing arms for self-defense, or,

YOUNG V. STATE OF HAWAII 47

more narrowly, only keeping arms for self-defense within

the home. 19

Heller aids our inquiry but provides no definitive

answer. On the one hand, in rejecting the collective view of

the right, Heller made clear that “self-defense had little to do

with the right’s codification; it was the central component of

the right itself.” 554 U.S. at 599 (emphasis in original); see

also id. at 628 (“[T]he inherent right of self-defense has been

central to the Second Amendment right.”). On the other

hand, Heller noted that “whatever else [the Amendment]

leaves to future evaluation, it surely elevates above all other

19

We disagree with the dissent that our circuit has already

determined whether the Second Amendment’s core applies outside the

home. Dissent at 14. As underscored by our recent en banc decision in

Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc),

our circuit has not yet decided the extent to which Second Amendment

rights—let alone core rights—exist outside of the home. See id. at 686

n.19 (“We have not decided the degree to which the Second Amendment

protects the right to bear arms outside the home.”).

To the extent that other cases in our circuit might have, in passing,

indicated that publicly carrying firearms falls outside the right’s core, the

question was not squarely presented in those cases because each dealt

with restrictions on keeping arms within the home. See, e.g., Chovan,

735 F.3d at 1129–30 (evaluating 18 U.S.C. § 922(g)’s prohibition on

domestic violence misdemeanants from “possessing firearms for life”).

Naturally, then, no such case seriously grappled with the existence of

core rights outside the home. Indeed, we doubt our court would have

resolved in a sentence or two an issue that the Wrenn majority and dissent

debated extensively. See Wrenn, 864 F.3d at 657–64, 668–69; see also

United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc)

(Kozinski, J., concurring) (“Of course, not every statement of law in

every opinion is binding on later panels. Where it is clear that a statement

is made casually and without analysis, where the statement is uttered in

passing without due consideration of the alternatives, or where it is

merely a prelude to another legal issue that commands the panel’s full

attention, it may be appropriate to re-visit the issue in a later case.”).

48 YOUNG V. STATE OF HAWAII

interests the right of law-abiding, responsible citizens to use

arms in defense of hearth and home.” 554 U.S. at 635. We

recognize that several of our sister circuits have interpreted

this language to limit the Amendment’s core to the home.

See Drake, 724 F.3d at 431; Woollard, 712 F.3d at 874;

Kachalsky, 701 F.3d at 93. But we afford little weight to

Heller’s emphasis on the application of the Second

Amendment to the home specifically, for the challenge there

exclusively concerned handgun possession in the home.

554 U.S. at 575–76; see also Drake, 724 F.3d at 445

(Hardiman, J., dissenting). And in any event, it may very

well be the case that within the core of the Amendment, self-

defense at home is “most acute.” Heller, 554 U.S. at 628.

But much of Heller’s reasoning implied a core purpose

of self-defense not limited to the home. The Court cited “at

least seven [state constitutional provisions that]

unequivocally protected an individual citizen’s right to self-

defense,” which is “strong evidence that that is how the

founding generation conceived of the right.” Id. at 603. Also

without any reference to the home, Heller noted that

“[a]ntislavery advocates routinely invoked the right to bear

arms for self-defense,” id. at 609, including Joel Tiffany,

who wrote “the right to keep and bear arms, also implies the

right to use them if necessary in self defence; without this

right to use the guaranty would have hardly been worth the

paper it consumed.” Id. (quoting Joel Tiffany, A Treatise on

the Unconstitutionality of American Slavery 117–18 (1849)).

Charles Sumner’s famous “Bleeding Kansas” speech,

quoted at length in Heller, can hardly be read without

sensing its vociferous declaration that the Second

Amendment’s core reaches self-defense on the American

frontier: “Never was this efficient weapon [the rifle] more

needed in just self-defense, than now in Kansas, and at least

one article in our National Constitution must be blotted out,

YOUNG V. STATE OF HAWAII 49

before the complete right to it can in any way be impeached.”

Id. (quoting The Crime Against Kansas, May 19–20, 1856,

in American Speeches: Political Oratory From the

Revolution to the Civil War 553, 606–07 (T. Widmer ed.

2006)); see also McDonald, 561 U.S. at 775 (“[O]ne of the

‘core purposes of the Civil Rights Act of 1866 and of the

Fourteenth Amendment was . . . to ‘affirm the full and equal

right of every citizen to self-defense.’” (quoting Akhil Amar,

The Bill of Rights: Creation and Reconstruction 264–65

(1998)).

Hence, we heed Heller’s—and McDonald’s—

admonition that citizens be allowed to use firearms “for the

core lawful purpose of self-defense.” Heller, 554 U.S. at

630, quoted in McDonald, 561 U.S. at 768; see also Wrenn,

864 F.3d at 659 (“Whatever motivated the Amendment, at

its core was the right to self-defense.”). While the

Amendment’s guarantee of a right to “keep” arms

effectuates the core purpose of self-defense within the home,

the separate right to “bear” arms protects that core purpose

outside the home. Indeed, Heller tied together the core rights

of keeping and bearing firearms in precisely the same

manner. When describing the “[f]ew laws in the history of

our Nation [that] have come close to the severe restriction of

the District’s handgun ban [within the home],” Heller

pointed to several state statutes that severely restricted the

open carrying of firearms outside the home. 554 U.S. at 629

(emphasis added) (citing Reid, 1 Ala. at 612; Nunn, 1 Ga. at

251; Andrews, 50 Tenn. at 187).

We are unpersuaded that historical regulation of public

carry requires us to remove the right to bear arms from the

Second Amendment’s core protection. See, e.g., Kachalsky,

701 F.3d at 94; United States v. Masciandaro, 638 F.3d 458,

470– 71 (4th Cir. 2011). As the D.C. Circuit has explained,

50 YOUNG V. STATE OF HAWAII

“[t]he rights to keep and to bear, to possess and to carry, are

equally important inasmuch as regulations on each must

leave alternative channels for both.” Wrenn, 864 F.3d at 662.

Regulations on public carry tend to “leave alternative

channels” for self-defense outside the home, id., because

“[w]hen a state bans guns merely in particular places, such

as public schools, a person can preserve an undiminished

right of self-defense by not entering those places,” Moore,

702 F.3d at 940. 20 The prevalence of modest regulations on

bearing arms, such as a restriction on carrying firearms in a

school-zone, does not itself indicate that bearing arms is any

less protected than keeping arms, because the Second

Amendment tolerates equally modest restrictions on keeping

firearms, such as open surface restrictions in the home.

Wrenn, 864 F.3d at 663. Thus, historical restrictions on

public carry “go to show the scope of the right, not its lack

of fundamental character.” See McDonald, 561 U.S. at 802.

In sum, we reject a cramped reading of the Second

Amendment that renders to “keep” and to “bear” unequal

guarantees. Heller and McDonald describe the core purpose

of the Second Amendment as self-defense, see Heller,

554 U.S. at 599; McDonald, 561 U.S. at 787, and “bear”

20

The dissent mischaracterizes the Seventh Circuit’s decision in

Moore. According to the dissent, Moore did not address whether the

“core” of the Second Amendment includes the right to bear arms outside

the home. Dissent at 3. That is incorrect. While not discussing the core

as explicitly as we do here, Moore did make clear that the Second

Amendment “confers a right to bear arms for self-defense, which is as

important outside the home as inside.” 702 F.3d at 942 (emphasis

added); see also id. at 941 (“[T]he interest in self-protection is as great

outside as inside the home.”). And at the very least, Moore rejected our

dissenting colleague’s attempt “[t]o confine the right to be armed to the

home [and thereby] to divorce the Second Amendment from the right of

self-defense described in Heller and McDonald.” Id. at 937.

YOUNG V. STATE OF HAWAII 51

effectuates such core purpose of self-defense in public. We

are persuaded, therefore, that the right to carry a firearm

openly for self-defense falls within the core of the Second

Amendment.

B

We next ask whether section 134-9 “amounts to a

destruction” of the core Second Amendment right to carry a

firearm openly for self-defense. Silvester, 843 F.3d at 821. If

so, the law is “unconstitutional under any level of scrutiny.”

Id.

As previously explained, section 134-9 limits the open

carry of firearms to people engaged in the protection of life

and property, and even those lucky few may carry firearms

only when in the actual course of their duties. Counsel for

the County acknowledged as much at oral argument, stating

that, to his knowledge, no one other than a security guard—

or someone similarly employed—had ever been issued an

open carry license.

Restrictions challenged under the Second Amendment

must be analyzed with regard to their effect on the typical,

law-abiding citizen. Wrenn, 864 F.3d at 665 (“[I]f the

Amendment is for law-abiding citizens as a rule, then it must

secure gun access at least for each typical member of that

class.” (emphasis omitted)). That’s because the Second

Amendment protects the right of individuals to keep and to

bear arms, not groups of individuals. See Heller, 554 U.S. at

595. An individual right that does not apply to the ordinary

citizen would be a contradiction in terms; its existence

instead would wax and wane with the whims of the ruling

majority.

52 YOUNG V. STATE OF HAWAII

Restricting open carry to those whose job entails

protecting life or property necessarily restricts open carry to

a small and insulated subset of law-abiding citizens. Just as

the Second Amendment does not protect a right to bear arms

only in connection with a militia, it surely does not protect a

right to bear arms only as a security guard. The typical, law-

abiding citizen in the State of Hawaii is therefore entirely

foreclosed from exercising the core Second Amendment

right to bear arms for self-defense. 21 It follows that section

134-9 “amounts to a destruction” of a core right, and as such,

it is infirm “[u]nder any of the standards of scrutiny.” See id.

at 628. Thus, we hold that section 134-9’s limitation on the

open carry of firearms to those “engaged in the protection of

21

We do not address whether, after Peruta II, a concealed carry

regime could provide a sufficient channel for typical, law-abiding

citizens to exercise their right to bear arms for self-defense. See 824 F.3d

at 927. While the County’s police chief purportedly awaits an

“exceptional case” to grant a concealed carry license, section 134-9 is

effectively a ban on the concealed carry of firearms. As counsel for the

County openly admitted at oral argument, not a single concealed carry

license has ever been granted by the County. Nor have concealed carry

applicants in other counties fared much better: Hawaii counties appear

to have issued only four concealed carry licenses in the past eighteen

years. See 2000 Haw. Att’y Gen. Reps., Firearm Registrations in

Hawaii, 2000 et seq; see also City of Sausalito v. O’Neill, 386 F.3d 1186,

1223 n.2 (9th Cir. 2004) (“We may take judicial notice of a record of a

state agency not subject to reasonable dispute.”). And there is no dearth

of applicants. See, e.g., 2016 Haw. Att’y Gen. Rep., Firearm

Registrations in Hawaii, 2016 at 9 (noting all 27 applicants for concealed

licenses in the State were denied); 2015 Haw. Att’y Gen. Rep., Firearm

Registrations in Hawaii, 2015 at 9 (noting all 44 applicants for concealed

licenses in the State were denied); 2014 Haw. Att’y Gen. Rep., Firearm

Registrations in Hawaii, 2014 at 9 (noting all 21 applicants for concealed

licenses in the State were denied). Thus, even if the State and County

remain free to accommodate the right to bear arms with concealed carry

after Peruta II, an issue we do not decide, section 134-9 does not offer a

realistic opportunity for a concealed carry license.

YOUNG V. STATE OF HAWAII 53

life and property” violates the core of the Second

Amendment and is void; the County may not constitutionally

enforce such a limitation on applicants for open carry

licenses.

V

Notwithstanding the fact that section 134-9 eviscerates a

core Second Amendment right—and must therefore be

unconstitutional—the dissent would uphold the law under

intermediate scrutiny. We do not wish to dive into the weeds

of intermediate scrutiny, but we feel obligated to note a few

aspects of the dissent’s analysis that are patently inconsistent

not only with intermediate scrutiny, but with the judicial role

itself.

A

As an initial mistake, the dissent chooses to analyze

section 134-9 as a “good cause” requirement to carry a

firearm in public, similar to those upheld by the Second,

Third, and Fourth Circuits. Dissent at 72–73; see Kachalsky,

701 F.3d at 101; Drake, 724 F.3d at 434; Woollard, 712 F.3d

at 876. The dissent emphasizes the language of section 134-

9 that purportedly authorizes the issuance of a concealed

carry license in an “exceptional case.” Yet, to analyze

section 134-9 as such, the dissent must shut its eyes to the

inconvenient fact that no concealed carry license has ever

been granted by the County.

The dissent claims that we lack a factual basis to

acknowledge that reality, but the dissent is clearly wrong.

The County’s attorney conceded at oral argument that no

concealed carry license has ever been granted by the County.

The dissent gives short shrift to such concession, but it is

nothing more than elementary that a party “is bound by

54 YOUNG V. STATE OF HAWAII

concessions made in its brief or at oral argument.” Hilao v.

Estate of Marcos, 393 F.3d 987, 993 (9th Cir. 2004).

Besides, official (and thus judicially noticeable) reports from

the State’s Attorney General confirm what the County

concedes: at least since 2000, no concealed carry license has

been granted by the County. See supra, note 21. And even if

some truly “exceptional” person in the County might one

day receive a concealed carry license, it would be

extraordinary to hold such a purely hypothetical stroke of

luck to be sufficient in safeguarding a constitutional right.

The Second, Third, and Fourth Circuits certainly did not

make such a leap. Those circuits, quite unlike the dissent,

confirmed that the good cause requirements at issue did not

disguise an effective ban on the public carry of firearms. As

the Second Circuit flatly insisted, “New York’s proper cause

requirement does not operate as a complete ban on the

possession of handguns in public.” Kachalsky, 701 F.3d at

91. Likewise, the Third Circuit observed that New Jersey’s

regime provided “clear and specific” standards,

“accompanied by specific procedures that provide

‘safeguards against arbitrary official action.’” Drake,

724 F.3d at 435 (footnote omitted) (quoting Siccardi v. State,

59 N.J. 545, 555 (1971)); see also Woollard, 712 F.3d at

869, 881 & n.10 (distinguishing Maryland’s law, which

allowed for licenses on a showing of a “good and substantial

reason,” from the outright ban invalidated by Moore,

702 F.3d at 940). And each of the good cause regimes that

were upheld provided for administrative or judicial review

of any license denial, Kachalsky, 701 F.3d at 87; Drake,

724 F.3d at 429; Woollard, 712 F.3d at 870, a safeguard

conspicuously absent from Hawaii’s laws. Far from

supporting the dissent’s argument, then, the reasoning of the

Second, Third, and Fourth Circuits suggests that they too

YOUNG V. STATE OF HAWAII 55

would invalidate a firearms carry regime as restrictive as

Hawaii’s.

We should also note the perplexing nature of the

dissent’s reasoning on this point. Suppose the dissent were

correct that “[n]o record has been developed in this case”

sufficient to discount section 134-9’s “exceptional case”

avenue. Dissent at 73. Utilizing the lack of such evidence to

uphold section 134-9 as a good cause requirement—thus

rejecting Young’s claim—would plainly be inappropriate at

this juncture. Young’s action sits at the motion to dismiss

stage. Are we now to dismiss claims under Rule 12(b) for a

lack of record evidence? Of course not!

B

Beyond the dissent’s misconception about how section

134-9 operates, its analysis under intermediate scrutiny is

utterly unpersuasive.

1

First, and foremost, the dissent chooses to omit one-half

of the inquiry. According to the dissent, the only question a

court must answer under intermediate scrutiny is whether the

government action “promotes a substantial government

interest that would be achieved less effectively absent the

regulation.” Dissent at 74 (quoting Fyock v. Sunnyvale,

779 F.3d 991, 1000 (9th Cir. 2015)). That is incomplete,

because a court must also determine whether the government

action “‘burden[s] substantially more [protected conduct]

than is necessary to further’ that interest.” Turner Broad.

Sys., Inc. v. F.C.C. (Turner II), 520 U.S. 180, 213–14 (1997)

(quoting Turner Broad. Sys., Inc. v. F.C.C. (Turner I),

512 U.S. 622, 662 (1994)); see also Shapero v. Ky. Bar

Ass’n, 486 U.S. 466, 476 (1988) (invalidating a flat ban on

56 YOUNG V. STATE OF HAWAII

direct-mail solicitation by lawyers because the government

could regulate “abuses . . . through far less restrictive and

more precise means”). Thus, while intermediate scrutiny

surely does not require the government to pursue the least

restrictive means of achieving an important interest, the

substantial overbreadth or impreciseness of a government

action must be considered.

Here, however, the dissent simply points out Hawaii’s

low firearm death rate and claims victory, at no point

seriously analyzing whether the State could reduce gun

violence through means considerably more targeted than

section 134-9.

2

Confounding the dissent’s erroneous understanding of

intermediate scrutiny is its willingness to defer entirely to the

State regarding the constitutionality of section 134-9.

Dissent at 74–75. The dissent relies on the Supreme Court’s

decision in Turner Broadcasting to justify its analysis, but in

reality the decision undermines the level of deference the

dissent would offer.

“Although we do ‘accord substantial deference to the

predictive judgments’ of the legislature” when conducting

intermediate scrutiny, “the [State] is not thereby ‘insulated

from meaningful judicial review.’” Heller v. District of

Columbia (Heller II), 670 F.3d 1244, 1259 (D.C. Cir. 2011)

(quoting Turner II, 520 U.S. at 195 & Turner I, 512 U.S. at

666). Quite the contrary, a court must determine whether the

legislature has “base[d] its conclusions upon substantial

evidence.” Turner II, 520 U.S. at 196. Indeed, despite the

deference owed, the State bears the burden “affirmatively

[to] establish the reasonable fit we require.” See Bd. of Trs.

of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

YOUNG V. STATE OF HAWAII 57

The State and County here offer some empirical studies

in support of their argument that section 134-9 is a

reasonable means of reducing gun violence, but where does

the dissent actually engage with such evidence? It doesn’t.

Its analysis of the evidence is nothing more than the

conclusory assertion that “Hawaii has met its burden by

citing to significant empirical evidence [apparently two or so

pages in its brief is “significant”] and by explaining the

logical inferences behind its policy choices.” Dissent at 75

(emphasis added).

Mere citation is an inadequate application of

intermediate scrutiny, even according deference to the

predictive judgment of a legislature, and Turner

Broadcasting itself shows why. There, the Supreme Court

extensively analyzed over the course of twenty pages the

empirical evidence cited by the government, and only then

concluded that the government’s “policy [was] grounded on

reasonable factual findings supported by evidence that is

substantial for a legislative determination.” See Turner II,

520 U.S. at 196–224. To say that the dissent’s treatment of

the State’s evidence is in any way comparable to the analysis

of Turner Broadcasting is to omit nearly the entirety of the

Court’s opinion; the Court did much more than cite-check

the government’s brief.

The dissent is comfortable letting the State perform its

intermediate scrutiny analysis because “[i]t is the

legislature’s job, not ours, to weigh conflicting evidence and

make policy judgments.” Dissent at 74 (quoting Kachalsky,

701 F.3d at 99). No statement could more clearly indicate

where the dissent goes wrong: we are certainly not

evaluating a mere “policy judgment” but rather determining

the scope and application of a constitutional right. At

bottom, the dissent would have us fundamentally reject

58 YOUNG V. STATE OF HAWAII

Heller and construe the Second Amendment as nothing more

than an illusory promise. While the dissent might think

Heller was wrongly decided, it is far beyond our power to

overrule it.

VI

We do not take lightly the problem of gun violence,

which the State of Hawaii “has understandably sought to

fight . . . with every legal tool at its disposal.” Wrenn,

864 F.3d at 667. We see nothing in our opinion that would

prevent the State from regulating the right to bear arms, for

the Second Amendment leaves the State “a variety of tools

for combatting [the problem of gun violence], including

some measures regulating handguns.” Heller, 554 U.S. at

636.

But, for better or for worse, the Second Amendment does

protect a right to carry a firearm in public for self-defense.

We would thus flout the Constitution if we were to hold that,

“in regulating the manner of bearing arms, the authority of

[the State] has no other limit than its own discretion.” Reid,

1 Ala. at 616. While many respectable scholars and activists

might find virtue in a firearms-carry regime that restricts the

right to a privileged few, “the enshrinement of constitutional

rights necessarily takes certain policy choices off the table.”

Heller, 554 U.S. at 636.

YOUNG V. STATE OF HAWAII 59

Young has indeed stated a claim that section 134-9’s

limitations on the issuance of open carry licenses violate the

Second Amendment. 22

REVERSED as to the County, DISMISSED as to the

State, 23 and REMANDED for further proceedings

consistent with this opinion. 24

CLIFTON, Circuit Judge, dissenting:

Morris Udall once observed at a congressional

committee hearing that “everything has been said but not

everyone has said it.” After decades of relative inattention,

the Second Amendment has sparked substantial comment in

the last forty years. Others have said things that reflect my

view. I do not feel the need to repeat them.

22

Because we reverse the district court on Second Amendment

grounds, we need not reach Young’s due process claim.

23

The appeal as to the State is dismissed for the reasons discussed

in footnote 1.

24

We deal with the pending motions as follows: (1) The County’s

motion to strike Young’s 28(j) letters, ECF No. 20, is DENIED;

(2) Young’s motion to file a supplemental brief, ECF No. 24, is

GRANTED; (3) Young’s motion to strike the State’s amicus brief, ECF

No. 36, is DENIED; (4) Young’s motion to take judicial notice, ECF

No. 80, is GRANTED IN PART, and we take judicial notice of the

Hawaii Attorney General’s 2014 Firearms Registration Report;

(5) Young’s second motion to file a supplemental brief, ECF No. 84, is

GRANTED; (6) The State’s motion to file a supplemental amicus brief,

ECF No. 92, is GRANTED.

60 YOUNG V. STATE OF HAWAII

Following the Supreme Court’s decisions in District of

Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v.

City of Chicago, 561 U.S. 742 (2010), our court has spoken

more than once regarding the reach of the Second

Amendment. This case requires us to do so again. One

notable decision by our court was Peruta v. County of San

Diego, 742 F.3d 1144 (9th Cir. 2014) (Peruta I). It expressed

an interpretation of the Second Amendment and an

explanation for that understanding very similar to the

majority opinion in this case. This court voted to rehear

Peruta I en banc, however, and effectively overturned that

decision in Peruta v. County of San Diego, 824 F.3d 919 (9th

Cir. 2016) (en banc) (Peruta II). Our opinion in Peruta II

contained a lengthy discussion of history relevant to the

Second Amendment, including the right to bear arms in old

England, colonial America, and in the United States

following adoption of the Fourteenth Amendment. It is

sufficient for now to say that its assessment was different

from that contained in Peruta I and in the opinion of the

majority here.

The Peruta II en banc panel did not opine on the precise

question presented in this case, limiting its holding to the

conclusion that “the Second Amendment does not preserve

or protect a right of a member of the general public to carry

concealed firearms in public.” Id. at 924. As the majority

opinion notes, at 10, that decision left unresolved the

question of whether the Second Amendment supports the

right of a member of the general public to carry a firearm

openly in public.

A majority of the members of the Peruta II en banc panel

expressed additional views relevant to our current case in a

non-precedential fashion, however. In a separate concurring

opinion. Judge Graber, joined by two other members of the

YOUNG V. STATE OF HAWAII 61

panel, fully concurred in the en banc panel’s majority

opinion but went on to express the view that even if it was

assumed that the Second Amendment applied to the carrying

of concealed weapons, the restrictions at issue in that case

struck “a permissible balance between granting handgun

permits to those persons known to be in need of self-

protection and precluding a dangerous proliferation of

handguns on the streets.” Id. at 942 (internal quotation

omitted). The other four judges on the panel who made up

the majority stated that “if we were to reach that question,

we would entirely agree with the answer the concurrence

provides.” Id. In sum, seven of the eleven members of that

en banc panel expressed views that are inconsistent with the

majority opinion in this case.

Other circuit courts have weighed in as well. One other

circuit has expressed an opinion that aligns with the majority

opinion here: Wrenn v. District of Columbia, 864 F.3d 650,

665 (D.C. Cir. 2017). One has decided that the Second

Amendment protects the right to carry firearms in public,

generally agreeing with the conclusion of the majority here,

but it did not describe that right as part of the “core” of the

Second Amendment, as the majority has here: Moore v.

Madigan, 702 F.3d 933 (7th Cir. 2012). Three others have

reached contrary conclusions: Drake v. Filko, 724 F.3d 426

(3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th

Cir. 2013), and Kachalsky v. County of Westchester,

701 F.3d 81 (2d Cir. 2012).

In light of the already existing circuit split, I assume that

the Supreme Court will find it appropriate at some point to

revisit the reach of the Second Amendment and to speak

more precisely to the limits on the authority of state and local

governments to impose restrictions on carrying guns in

public. In the meantime, this court and our counterparts

62 YOUNG V. STATE OF HAWAII

elsewhere will do the best we can to sort out the conflicting

arguments. I respect the opinion of the majority, but my

conclusion is different.

H.R.S. § 134-9 regulates both open carry and concealed

carry. Open carry licenses are available to those who are

“engaged in the protection of life and property” and “[w]here

the urgency or the need has been sufficiently indicated.”

Concealed carry licenses are available “[i]n an exceptional

case, when an applicant shows reason to fear injury to the

applicant’s person or property.” H.R.S. § 134-9.

In my view, this statutory scheme is the same type of

“good cause” public carry regulation that the Second, Third,

and Fourth Circuits upheld in Kachalsky, Drake, and

Woollard, respectively. Good cause licensing schemes, and

extensive state regulation of public carry more generally,

have a long history in the United States. While explicitly

declining to elaborate on specific regulations, the Supreme

Court in Heller expressly noted that the right secured by the

Second Amendment is “not unlimited” and that there were

“longstanding prohibitions” that were “presumptively

lawful.” Heller, 554 U.S. at 626–27 & n. 26. I would hold

that Hawaii’s statute is a longstanding, presumptively lawful

regulation under Heller. At a minimum, the statute survives

intermediate scrutiny, as the core of the Second Amendment

does not include a general right to publicly carry firearms

and there is a reasonable fit between the licensing scheme

and Hawaii’s legitimate interest in promoting public safety.

As a result, I respectfully dissent. As promised, I will try

not to repeat all that has already been said by other judges. I

will limit my comments to a few additional thoughts about

the historical record and the application of intermediate

scrutiny to the statute at hand.

YOUNG V. STATE OF HAWAII 63

I. History

The majority opinion’s conclusions rest heavily on

historical analysis in the vein of the Supreme Court’s

decisions in Heller and McDonald. The premise of that

approach is that the history of firearms regulations prior to

the adoption of the Second Amendment and in the decades

that followed that adoption shed light on the right that the

founders intended to provide. Much of the analysis offered

in the majority opinion repeats what was said in Peruta I,

despite the en banc rejection of that opinion in Peruta II.

The discussion in the majority opinion is incomplete, at

best. Throughout our history, states and their predecessor

colonies and territories have taken divergent approaches to

the regulation of firearms. While some, like the states that

the majority cites, have historically allowed for a general

right to publicly carry firearms, many others have not.

“History and tradition do not speak with one voice here.

What history demonstrates is that states often disagreed as to

the scope of the right to bear arms, whether the right was

embodied in a state constitution or the Second Amendment.”

Kachalsky, 701 F.3d at 91.

The majority opinion supports its conclusion by focusing

solely on the laws and decisions from one region, the

antebellum South. Take a look at the jurisdictions relied

upon by the majority opinion, at 19–23: Kentucky,

Tennessee, Alabama, Georgia, and Louisiana. What jumps

out is that those were all slave states, and the decisions relied

upon by the majority opinion all date from before the Civil

War. The majority opinion affirmatively acknowledges, at

28–32, the peculiar pattern of southern states following the

Civil War, during the era of Black Codes and efforts to keep

firearms out of the hands of former slaves, but it fails to

appreciate that the peculiarity did not start in 1865. To

64 YOUNG V. STATE OF HAWAII

suggest that the approach of the antebellum South reflected

a national consensus about the Second Amendment’s

implications for public carry of firearms is misguided. The

cases from the antebellum South relied upon by the majority

“did not emerge in a vacuum and do not reflect the full range

of American legal history. Rather, they come from a time,

place, and culture where slavery, honor, violence, and the

public carrying of weapons were intertwined.” Eric M.

Ruben & Saul Cornell, Firearm Regionalism and Public

Carry, 125 Yale L.J. F. 121, 125 (2015), http://www.yalela

wjournal.org/forum/firearm-regionalism-and-public-carry.

A more balanced historical analysis reveals that states

have long regulated and limited public carry of firearms and,

indeed, have frequently limited public carry to individuals

with specific self-defense needs. Hawaii’s regulatory

framework fits squarely into that long tradition.

There are two legal conclusions to be drawn from a more

thorough historical analysis. First, good cause licensing

schemes are longstanding and, therefore, are presumptively

lawful limitations on public carry of firearms under Heller.

Second, even if they are not presumptively lawful, the

widespread and longstanding nature of such schemes

supports the conclusion that a general right to publicly carry

firearms is not part of the core of the Second Amendment.

A. An Overview of State Regulation of Public Carry

Other decisions have detailed much of the history of

regulations and limitations on public carry, so I need not

fully reiterate that history here. I will instead provide only a

brief overview of the tradition of regulation of public carry,

with reference to the analysis performed by our court and

other circuits where appropriate.

YOUNG V. STATE OF HAWAII 65

As we recognized in our en banc Peruta II decision,

regulation of public carry has its roots in English law. Dating

back to the thirteenth century, England regulated public

carry of firearms, including both concealed and concealable

weapons. See Peruta II, 824 F.3d at 929–32 (citing, inter

alia, the Statute of Northampton, which prohibited men “to

go nor ride armed by night nor by day, in Fairs, Markets, nor

in the presence of the Justices or other Ministers, nor in no

part elsewhere” and subsequent laws emphasizing that the

Statute prohibited the carrying of concealable weapons). 1 In

the colonial period, several colonies “adopted verbatim, or

almost verbatim, English law” that limited or banned public

carry. Id. at 933.

In the late 18th and 19th centuries, states began to

develop good cause limitations or otherwise continued to

limit public carry. The Second Circuit detailed much of the

19th century history in Kachalsky, 701 F.3d at 90–93.

1

The majority’s analysis of English law and the colonies’ treatment

of English law, at 36–45, is also flawed. For example, the majority

assumes that historical regulations authorizing the arrest of or

criminalizing going armed “to the fear or terror” of the public mean that

the person who goes armed must have had the intent to terrify the public.

See, e.g., Maj. Op. at 42–45. But the majority opinion does not cite

adequate authority for that proposition, and there is no consensus that

supports such an interpretation. Another equally reasonable

interpretation is that these statutes meant that a member of the general

public could not go armed because to do so would terrify the people, and

the statutes included this language to “highlight[] the importance of the

police power in preventing the dangers imposed by public carrying . . . .

The terminology did not legally require circumstances where carrying of

arms was unusual and therefore terrifying. Instead, the act of riding or

going armed among the people was deemed terrifying itself and

considered a breach against the public peace.” Patrick J. Charles, The

Faces of the Second Amendment Outside the Home, 60 Clev. St. L. Rev.

1, 33 (2012).

66 YOUNG V. STATE OF HAWAII

Massachusetts, for example, first adopted a good cause

statute in 1836. Its law provided an exception to its limitation

on public carry for those with “reasonable cause to fear an

assault or other injury, or violence to his person, or to his

family or property.” 1836 Mass. Laws 748, 750, ch. 134,

§ 16. Under this law, any person who went armed without

such good cause “may, on complaint of any person having

reasonable cause to fear an injury or breach of the peace, be

required to find sureties for keeping the peace.” Id.

Wisconsin, Oregon, Minnesota, Michigan, Virginia, and

Maine adopted similar laws. See Act to Prevent the

Commission of Crimes, § 16, reprinted in The Statutes of the

Territory of Wisconsin 379, 381 (1839) (restricting “go[ing]

armed with a . . . pistol or pistols, or other offensive and

dangerous weapon, without reasonable cause to fear an

assault or other injury.”); Proceedings to Prevent

Commission of Crimes, ch. 16, § 17, 1853 Or. Laws 220

(restricting any person from going armed with “pistol, or

other offensive and dangerous weapon, without reasonable

cause to fear an assault, injury, or other violence to his

person, or to his family or property.”); Of Proceedings to

Prevent the Commission of Crime, ch. 193, § 16, reprinted

in Thomas M. Cooley, Compiled Laws of the State of

Michigan 1572 (1857) (restricting any person from going

armed with a “pistol, or other offensive and dangerous

weapon, without reasonable cause to fear an assault or other

injury”); Of Proceedings to Prevent the Commission of

Crimes, 1847 Va. Laws 129, ch. 14, § 16 (restricting

“go[ing] armed with any offensive or dangerous weapon

without reasonable cause to fear an assault or other injury”);

Of Proceedings to Prevent the Commission of Crimes, ch.

112, § 18, Rev. Stat. Minn. 528 (1851) (restricting “go[ing]

armed with a . . . pistol or pistols, or other offensive and

dangerous weapon, without reasonable cause to fear an

assault or other injury.”); Of Proceedings for Prevention of

YOUNG V. STATE OF HAWAII 67

Crimes, ch. 169, § 16, Rev. Stat. Me. 709 (October 22, 1840)

(“Any person, going armed with any dirk, dagger, sword,

pistol, or other offensive and dangerous weapon, without a

reasonable cause to fear an assault on himself, or any of his

family or property, may . . . be required to find sureties for

keeping the peace.”). 2

After the Civil War, additional states adopted laws

similar to the Massachusetts good cause model. Texas, for

example, prohibited “[a]ny person [from] carrying on or

about his person” certain weapons, including pistols, but

provided an affirmative defense if the defendant could show

that he was “in danger of an attack on his person” that was

“immediate and pressing.” An Act to Regulate the Keeping

and Bearing of Deadly Weapons, ch. 35, §§ 1–2, 1871 Tex.

Laws 25 (discussed in State v. Duke, 42 Tex. 455 (1874)).

Several other states and territories also adopted full open

carry bans during this time. See An Act Defining and

Punishing Certain Offenses Against the Public Peace, § 1,

1889 Ariz. Sess. Laws 16 (prohibiting any person within any

settlement from “carry[ing] on or about his person, saddle,

or in his saddlebags, any pistol.”); An Act to Prevent the

Carrying of Fire Arms and Other Deadly Weapons, ch. 52,

§ 1, Wyo. Comp. Laws 352 (1876) (declaring that it is

unlawful for any resident of or visitor to a city or village to

“bear upon his person, concealed or openly, any fire arm or

other deadly weapon.”); An Act Regulating the Use and

2

The majority considers these types of regulations unpersuasive

because of the citizen-complaint mechanism used to enforce some of

these laws. See Maj. Op. at 33–34. But the point here is that states have

long regulated public carry and specifically provided exceptions to their

regulations for those with specific self-defense needs. The fact that the

public carry regulations may have been triggered by citizen-complaint

mechanisms does not change the states’ recognition that public carry

may be limited.

68 YOUNG V. STATE OF HAWAII

Carrying of Deadly Weapons in Idaho Territory, § 1, 1888

Idaho Sess. Laws 23 (declaring that it is unlawful for anyone

who is not a state or federal employee on duty “to carry,

exhibit or flourish any . . . pistol, gun or other deadly

weapons, within the limits or confines of any city, town or

village.”); 1881 Kan. Sess. Laws 92, ch. 37, § 23 (“The

council shall prohibit and punish the carrying of firearms, or

other dangerous or deadly weapons, concealed or

otherwise.”).

Numerous states adopted good cause limitations on

public carry in the early 20th century. Laws from this time

period may also be considered “longstanding” under Heller.

See Heller v. District of Columbia, 670 F.3d 1244, 1253

(D.C. Cir. 2011) (noting that the Supreme Court “considered

prohibitions on the possession of firearms by felons to be

longstanding although states did not start to enact them until

the early 20th century.” (internal quotation marks omitted)).

Indeed, Hawaii’s law dates to this time. 1927 Haw. Laws

209, act 206, § 7; see also 1913 N.Y. Laws 1629 (requiring

a showing of “proper cause”); Drake, 724 F.3d at 432

(explaining that New Jersey’s “justifiable need” standard

based on “special danger” for public carry licenses has

existed in some form for nearly 90 years, beginning in 1924).

Other states imposed other public carry restrictions.

Oklahoma, for example, established strict limits on public

carry. See Will T. Little et al., The Statutes of Oklahoma,

495–96, § 2 (1890) (“It shall be unlawful for any person in

this territory of Oklahoma, to carry upon or about his person

any pistol, revolver . . . or any other offensive or defensive

weapon.”). A more comprehensive review demonstrates that

state regulation of public carry has existed throughout

United States history, and that there is a long history of

regulations similar to Hawaii’s statute.

YOUNG V. STATE OF HAWAII 69

B. Good Cause Regulations Are Longstanding and

Presumptively Lawful

The longstanding and widespread nature of these

regulations is determinative as we decide on the

constitutionality of Hawaii’s regulatory framework. As

noted above, the Supreme Court emphasized in Heller that

nothing in its opinion “should be taken to cast doubt” on the

legitimacy of various longstanding limitations on the carry

of firearms and that the list of “presumptively lawful

regulatory measures” it specifically mentioned did not

“purport to be exhaustive.” Heller, 554 U.S. at 626–27 n. 26.

In Drake, the Third Circuit concluded that New Jersey’s

limitations on public carry to those with a justifiable need to

carry a handgun due to “special danger to the applicant’s life

that cannot be avoided by [other] means” are such

longstanding regulations that they join this presumptively

lawful list. 724 F.3d at 428, 431–34. Hawaii’s limitation on

public carry to those with a fear of injury is very similar to

New Jersey’s regime. Based on the analysis in that decision

and the history discussed above, I conclude that Hawaii’s

scheme should likewise be presumptively lawful under

Heller. 3

3

The majority opinion elects to disregard these enactments because

it says it does not know the level of enforcement and cannot discern

whether they were enacted “with a militia or a self-defense oriented view

of the right to bear arms in mind.” Maj. Op. at 35 n. 13. Those

explanations do not speak to the point, though. States did in fact adopt

these limitations on the carry of firearms, presuming the limitations to be

lawful and consistent with the Second Amendment, and they did so long

ago, making the restrictions long-established regulatory measures that

are presumptively lawful.

70 YOUNG V. STATE OF HAWAII

C. Public Carry Is Not the Core of the Second

Amendment

Even if Hawaii’s regulations were not presumptively

lawful, it is plain from the long history of state regulation

that a general right to publicly carry firearms is not part of

the “core” of the Second Amendment. As the Second Circuit

held in Kachalsky, “[t]he historical prevalence of the

regulation of firearms in public demonstrates that while the

Second Amendment’s core concerns are strongest inside

hearth and home, states have long recognized a

countervailing and competing set of concerns with regard to

handgun ownership and use in public. . . . Because our

tradition so clearly indicates a substantial role for state

regulation of the carrying of firearms in public, we conclude

that intermediate scrutiny is appropriate in this case.”

Kachalsky, 701 F.3d at 96.

The majority opinion is simply incorrect when it

concludes, at 32, that “the important founding-era treatises,

the probative nineteenth century case law, and the post-civil

war legislative scene each reveal a single American voice.”

As demonstrated by the discussion above, there was no

single voice on this question, as there is not today.

The majority’s assertion that our court has not yet

concluded that the core of the Second Amendment is focused

on self-defense in protection of hearth and home is also

incorrect. We have repeatedly made statements to that effect.

See Jackson v. Cty. of San Francisco, 746 F.3d 953, 963–64

(9th Cir. 2014) (“On its face, section 4512 implicates the

core because it applies to law-abiding citizens, and imposes

restrictions on the use of handguns within the home. . . .

Having to retrieve handguns from locked containers or

removing trigger locks makes it more difficult ‘for citizens

to use them for the core lawful purpose of self-defense’ in

YOUNG V. STATE OF HAWAII 71

the home.” (quoting Heller, 554 U.S. at 630)); United States

v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013) (“Heller tells

us that the core of the Second Amendment is ‘the right of

law-abiding, responsible citizens to use arms in defense of

hearth and home.’” (quoting Heller, 554 U.S. at 635)); Bauer

v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017) (“Heller

identified the core of the Second Amendment as the right of

law-abiding, responsible citizens to use arms in defense of

hearth and home.” (internal quotation marks omitted)). It is

true that “[w]e have not decided the degree to which the

Second Amendment protects the right to bear arms outside

the home.” See Teixeira v. Cty. of Alameda, 873 F.3d 670,

686 n. 19 (9th Cir. 2017) (en banc). But despite the majority

opinion’s assertion, Maj. Op. at 47 n. 19, Teixeira did not

say that we have not mapped the “core” of the Second

Amendment. The cases cited above have spoken to that

subject.

Many of the other circuits have defined the core of the

Second Amendment as our prior cases have. See Drake,

724 F.3d at 431 (stating that “the individual right to bear

arms for the purpose of self-defense” in the home is “the

‘core’ of the right as identified by Heller.”); Kachalsky,

701 F.3d at 89, 94 (“Heller explains that the ‘core’

protection of the Second Amendment is the ‘right of law-

abiding, responsible citizens to use arms in defense of hearth

and home.’” (quoting Heller, 554 U.S. at 634–35)); United

States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011)

(“[T]here now exists a clearly-defined fundamental right to

possess firearms for self-defense within the home.”); Bonidy

v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015)

(“If Second Amendment rights apply outside the home, we

believe they would be measured by the traditional test of

intermediate scrutiny.”); Nat’l Rifle Ass’n of America, Inc. v.

ATFE, 700 F.3d 185, 193 (5th Cir. 2012) (“The [Heller]

72 YOUNG V. STATE OF HAWAII

Court invalidated the laws because they violated the central

right that the Second Amendment was intended to protect—

that is, the ‘right of law-abiding, responsible citizens to use

arms in defense of hearth and home.’” (quoting Heller,

554 U.S. at 635) (emphasis in original)). I am thus joined by

most of the other circuits that have spoken to the question in

defining the core of the Second Amendment as defense of

hearth and home. My understanding is firmly grounded in

the long history of allowing substantial state regulation of

public carry.

II. Intermediate Scrutiny

Because I conclude that Hawaii’s regulatory framework

does not “impose[] such a severe restriction on the

fundamental right of self defense of the home that it amounts

to a destruction of the Second Amendment right,” the most

demanding level of review that can be applied to Hawaii’s

regulatory framework is intermediate scrutiny. Silvester v.

Harris, 843 F.3d 816, 821 (9th Cir. 2016). It appears to me

that there is a reasonable fit between Hawaii’s public carry

regulations and its unquestionably legitimate goal of

promoting public safety so that Hawaii’s statute would pass

constitutional muster. Given the stage of the case and the

direction of the majority, it does not seem worthwhile to try

to launch a complete intermediate scrutiny analysis at this

point. I note, however, that the majority opinion makes some

critical errors in declining to consider that analysis.

First, Hawaii does provide an alternative mode of access

to publicly carry firearms for self-defense. As we stated in

Jackson, “firearm regulations which leave open alternative

channels for self-defense are less likely to place a severe

burden on the Second Amendment right than those which do

not.” 746 F.3d at 961. Under Hawaii’s law, citizens may

obtain a concealed carry permit if they can show reason to

YOUNG V. STATE OF HAWAII 73

fear injury. They thus are not “entirely foreclosed” from

obtaining a permit to bear arms in public for self-defense, as

asserted in the majority opinion, at 52. Moreover, the

majority opinion’s assessment, at 52 n. 21, that “section 134-

9 does not offer a realistic opportunity for a concealed carry

license” lacks support in the record. No record has been

developed in this case, so a conclusion that the regulation

acts as a total ban is unsupported. It may be, as stated at oral

argument, that no concealed carry permit has been issued by

the County, but we have no information whatsoever about

the applicants for concealed carry permits, let alone enough

information to support a finding that those applicants would

have been eligible for a permit even if Hawaii had a “shall-

issue” regime. Under our precedent, the fact that Hawaii may

provide an alternative channel for public carry should weigh

in favor of finding that the law withstands constitutional

scrutiny. 4

4

This point speaks to a broader problem with the majority’s

analysis. Throughout its opinion, the majority attempts to focus only on

whether the Second Amendment protects a right to open carry, based on

an erroneous assumption that any other analysis is foreclosed by our

decision in Peruta II. I do not agree with this approach, and its

artificiality becomes clear when we move to the intermediate scrutiny

analysis. Peruta II specifically declined to decide not only whether the

Second Amendment protects open carry, but also whether it protects “a

right of a member of the general public to carry firearms in public.”

Peruta II, 824 F.3d at 927. In applying intermediate scrutiny, the

majority opinion specifically states, at 49 n. 16, that it does not address

whether “a concealed carry regime could provide a sufficient channel for

typical, law-abiding citizens to exercise their right to bear arms for self-

defense.” But this is illogical. The existence of alternative access to

public carry for self-defense in the form of concealed carry is

unquestionably relevant in an intermediate scrutiny analysis. Nothing in

Peruta II said otherwise. If we apply intermediate scrutiny, we must

consider the statute as a whole, rather than pretending that Hawaii has

instituted a complete ban on public carry, both open and concealed.

74 YOUNG V. STATE OF HAWAII

Second, the majority’s decision to pick apart the various

studies cited by the state ignores the Supreme Court’s dictate

to “accord substantial deference to the predictive judgments”

of the state legislature. Turner Broadcasting Sys., Inc. v.

F.C.C., 520 U.S. 180, 195 (1997) (internal quotation marks

omitted). As the Second Circuit stated in Kachalsky, “[i]t is

the legislature’s job, not ours, to weigh conflicting evidence

and make policy judgments.” Kachalsky, 701 F.3d at 99; see

also Drake, 724 F.3d at 439 (noting that “conflicting

empirical evidence . . . does not suggest, let alone compel, a

conclusion that the ‘fit’ between [a state’s] individualized,

tailored approach and public safety is not ‘reasonable.’”).

The test is not whether the state has provided flawless

empirical analysis that is immune to dispute to support its

reasonable conclusion that the regulatory measures promote

public safety. That limiting public carry of firearms may

have a positive effect on public safety is hardly a illogical

proposition. Many other states appear to have reached

similar conclusions, and so have most other nations.

Although the majority may not like the outcomes of

those studies, and may even disagree with their approaches,

intermediate scrutiny does not allow us to dismiss statutes

based on our own policy views or disagreements with

aspects of the analyses cited. In an intermediate scrutiny

analysis, Hawaii is not required to show that its regulatory

scheme “is the least restrictive means of achieving its

interest” in public safety, but rather need only show that the

scheme “promotes a substantial government interest that

would be achieved less effectively absent the regulation.”

Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015)

(internal quotation marks omitted).

YOUNG V. STATE OF HAWAII 75

Hawaii has met its burden by citing to significant

empirical evidence and by explaining the logical inferences

behind its policy choices. See IMS Health Inc. v. Ayotte, 550

F.3d 42, 55 (1st Cir. 2008) (abrogated on other grounds by

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (explaining

that under intermediate scrutiny states are “allowed to justify

speech restrictions by reference to studies and anecdotes”

and “history, consensus, and simple common sense”

(internal quotation marks omitted)). As other circuits have

held in Kachalsky, Drake, and Woollard, and as a majority

of the judges on our en banc panel indicated in Peruta II,

there is a reasonable fit between good cause limitations on

public carry licenses and public safety. See Kachalsky,

701 F.3d at 96–100; Drake, 724 F.3d at 439–40; Woollard,

712 F.3d at 878–82; Peruta II, 824 F.3d at 942.

Hawaii has a very low firearm death rate as compared to

other states: 4.5 deaths per 100,000 total population. See

National Center for Health Statistics, Firearm Mortality by

State,

https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mort

ality/firearm.htm. There are undoubtedly many factors that

lead to that result, but we should not ignore the evidence that

Hawaii has been highly successful in limiting firearm deaths

and promoting public safety. Hawaii has shown that there is

a reasonable fit between its statutory scheme and public

safety, and the state’s decision is owed deference. Any

conclusion otherwise disregards our proper role in an

intermediate scrutiny analysis.

III. Conclusion

The majority opinion goes astray in several respects.

Most obviously, the majority opinion has disregarded the

fact that states and territories in a variety of regions have

long allowed for extensive regulations of and limitations on

76 YOUNG V. STATE OF HAWAII

the public carry of firearms. Many have taken the approach

that Hawaii has taken for almost a century. Such regulations

are presumptively lawful under Heller and do not undercut

the core of the Second Amendment. In addition, the majority

opinion misconceives the intermediate scrutiny test, assumes

without support in the record that Hawaii’s statute operates

as a complete ban, and substitutes its own judgment about

the efficacy of less restrictive regulatory schemes. This

approach is in conflict with Supreme Court precedent, our

own decisions, and decisions by other circuits.

I respectfully dissent.