Appeals court sides with Big Isle man in case about open carry of guns

  • Associated Press file photo

    A handgun sits on a desk May 10, 2016, in the state Department of Land and Natural Resources hunter education classroom in Honolulu.

The 9th Circuit U.S. Court of Appeals on Tuesday sided with a Big Island man when it ruled the Second Amendment affords the right to openly carry a gun in public for self-defense.

The panel of judges ruled 2-1 that Hawaii officials violated Hilo resident George Young’s rights when the Hawaii Police Department denied Young a permit to openly carry a loaded gun in public to protect himself. The decision reversed a lower court ruling that sided with officials who said the amendment only applied to guns kept in homes.

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Tuesday’s ruling pleased some and disappointed others.

“I think this is a proper application of the law,” said Alan Beck, a San Diego attorney who represented Young in the appeal and said he was speaking on his client’s behalf.

According to Beck, in Young’s case, the county conceded it had never issued a permit, and “all around the country, the courts have at least assumed Second Amendment rights apply, to at least a degree,” outside of the home, he said.

Young has lived in Hilo his entire life, except for the 21 years he was in the U.S. Army, Beck said. He’s a “local guy that just wants to be able to defend himself when he leaves his home.”

According to court documents filed Tuesday, the panel acknowledged that while the concealed carry of firearms falls outside Second Amendment protections, “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 treaties 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.”

Because Hawaii law restricted Young from exercising his right to carry a firearm openly, it “burdened conduct protected by the Second Amendment,” read the court document.

While the court does not “take lightly the problem of gun violence,” Circuit Judge Diarmuid O’Scannlain wrote in his opinion that the court sees “nothing in our opinion that would prevent the state from regulating the right to bear arms.”

“… But for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

The Hawaii Rifle Association, an NRA affiliate associate, was pleased with Tuesday’s ruling.

“We are delighted with the decision of the Ninth Circuit, that they are going to push Hawaii to step up with 38 other states to allow us to protect ourselves,” said Hawaii Rifle Association President Harvey Gerwig.

Gerwig said Tuesday afternoon that he hadn’t read the entire decision yet, but explained “open carry” means the firearm would have to be visible to anyone when carrying outside the home.

He and many others, however, prefer concealed carry because people not familiar or trained to use firearms “are upset by people having firearms on them at the grocery store,” and it allows criminals to see who is armed and who is not.

“What we would ask the state government to do is make either available, with the preference being concealed carry,” he said.

“I think it’s important that people understand that this does not just say everybody in Hawaii can now start walking around with a gun,” Gerwig said.

To legally obtain a handgun in Hawaii, applicants must take a firearm safety and training class and meet other requirements for a carry permit, he explained.

James O’Keefe of Hilo, a former member of the Hawaii Rifle Association Board of Directors, an NRA recruiter and firearms instructor, didn’t have a chance to read Tuesday’s decision, but said he approves of the ruling.

He said a third or more of his students are women, and the ruling “gives them an option that has been sorely missed” in self-defense.

He, too, would prefer concealed carry be permitted.

“I don’t expect to see a whole great number of people walking around with open carry firearms on their hips, but I think it’s a precursor to future legal decisions that will open up the right to conceal carry,” O’Keefe said.

State and county officials were disappointed in the ruling.

“The way we see it, this Young decision (is) unfortunate in that it invalidates the Hawaii law that’s designed to protect the safety and well-being of the people of Hawaii,” said Kaena Horowitz, deputy Hawaii County corporation counsel, who represented the county in the appeal. “Carrying firearms in public clearly poses a significant danger to the safety of our community and greatly increases the risk that police officers confront.”

The county is considering its options, including whether to seek an en banc review, meaning in front of all 9th Circuit judges, “and other options that may be available to us.”

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“We are disappointed in the decision that would undermine Hawaii’s strong gun control law and our commitment to protect the public,” said state Attorney General Russell Suzuki in a statement. “But we note that Judge (Richard) Clifton filed a well-reasoned dissent supporting the constitutionality of this law. We intend to consult with Hawaii County and work with them on further action.”

Email Stephanie Salmons at ssalmons@hawaiitribune-herald.com.

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