Duke Center for Firearms Law
Duke Law logo

Hawaii’s Public-Carry Law and the Challenge of Pre-State Historical Tradition

By on July 20, 2022 Categories: , ,

The Supreme Court recently sent four Second Amendment cases back to the appellate level for reconsideration post-Bruen.  One of those cases is Young v. Hawaii, a challenge to Hawaii’s restrictive permitting scheme.  Of the four cases that were granted, vacated, and remanded, at first glance Young seems like the most obviously suspect under Bruen because it upheld a permitting law very similar to New York’s.  Hawaii requires that, to obtain a concealed-carry permit, an individual “must first show ‘an exceptional case’ and a ‘reason to fear injury to [his or her] person or property.’” HRS § 134-9(a).

It is highly likely the Ninth Circuit will reverse its en banc decision upholding Hawaii’s law on remand, no less due to the presence of a lengthy dissent from its en banc decision by Judge O’Scannlain (joined by three other judges).  Judge O’Scannlain’s dissent is notable in that it sounds a lot like the Bruen majority in its analysis of and conclusions regarding the history of U.S. public-carry restrictions.  However, given Bruen’s extensive focus on history, it’s worth considering whether Hawaii’s unique status as a former independent country, prior to its 1898 annexation as a U.S. territory, has any bearing on the constitutionality of its permit scheme.

The Ninth Circuit’s en banc decision, authored by Judge Bybee, noted that Hawaii has a longstanding history of regulating the public carriage of firearms dating back to “fifty years before it became a U.S. territory and more than a century before it became a state.”  Young v. Hawaii, 992 F.3d 765, 773 (2021).  Specifically, the majority opinion cited an 1852 criminal law passed by the kingdom of Hawaii—“Act to Prevent the Carrying of Deadly Weapons”—which authorized penalties for the unauthorized carrying of “pistol[s]. . . or [any] other deadly weapon.”  See id. (citing 1852 Haw. Sess. Laws 19, § 1.)  That law went on to specify that criminal penalties could be imposed for carrying guns “unless good cause be shown for having such dangerous weapons” (emphasis added).[1]  The en banc majority noted that this 1852 law was “well within [the American] tradition” of banning the carrying of concealed weapons in certain circumstances during that time.  Id. at 802.

The plaintiff, George Young, appealed the Ninth Circuit’s en banc decision to the Supreme Court.  An amicus brief filed by the Hawaii Rifle Association last year in support of the petitioner traced the pre-annexation history of Hawaii and argued that the Ninth Circuit’s use of the kingdom’s 1852 criminal ban on carrying dangerous weapons was inappropriate.  The thrust of the brief was that, because Hawaii was a monarchy and the law was enacted at the king’s whim to oppress his subjects (and certainly without consideration for the Second Amendment of the U.S. Constitution), it was not part of any historical tradition that might support similar modern-day restrictions.  Rather, the amici argued, it was “a[] glaring example of why the Second Amendment exists and an example of a clearly unconstitutional law.” 

After Bruen, it’s interesting to consider what impact—if any—Hawaii’s 1852 law might have on remand.  Under one view (which is probably the view of the majority), Bruen directs that regulations must be “consistent with this Nation’s historical tradition of firearm regulation” (emphasis added).  Therefore, judges should disregard any law passed by a country (like Hawaii) at a time before it became part of the United States.[2]  Bruen also largely discounted regulations passed by U.S. territorial governments prior to statehood because of the “transitional and temporary character” of territorial government, the small population of the territories, and the lack of judicial review of most territorial gun laws.  If judges should not consider historical laws from U.S. territories, they presumably also should not consider laws from foreign countries later incorporated into the U.S. as territories.[3]  Finally, Bruen considered the lack of evidence about the “basis of the[] perceived legality” of territorial laws as a factor that cut against giving them weight in the analysis.  Here, of course, there’s no indication whatsoever that Hawaii’s 1852 law was considered consistent with the Second Amendment (or that this was ever discussed at the time).

On the other hand, this all raises an important question about the Bruen test:  is there any point at which the specific law being challenged has such a strong historical basis on its own that it meets the historical tradition standard?  The majority in Bruen did not consider 20th century history, and New York’s Sullivan Act was passed in 1911.  Justice Breyer chided the majority for this approach, taking care to emphasize New York’s over-100-year history of permit regulation.  But imagine a scenario where New York passed the Sullivan Act—or a precursor law imposing a similar permitting scheme—in 1852 (or 1792, for that matter), rather than 1911.  Would the fact that the specific law being challenged was within the relevant historical window mean that it was especially probative of a historical tradition of regulation, even if few other states followed such a regulatory approach at the time?  In other words, is a historical analogue by definition not an outlier if it is the same law as (or a direct precursor to) the law being challenged in court? 

Another relevant question:  after Bruen, to what extent does the underlying motive for a potential historical analogue matter?  Bruen did not delve into the ongoing historical debate about possible racial animus behind the Sullivan Act because it did not consider any 20th century history.  Assume for the sake of argument that, even if the Hawaiian monarch enacted the 1852 criminal ban for improper reasons, it was justified publicly by an appeal to preventing violence in the kingdom.  It’s difficult to imagine a court diving too far into the history to try to determine the real motive for such a law, rather than relying on official statements that accompanied its enactment.  Notwithstanding the Hawaii Rifle Association’s amicus brief in Young, gleaning a behind-the-scenes intent for any law from the historical record (especially 170 years after the fact) seems impractical and likely to produce even greater confusion.   

Bruen does not provide clear answers to these questions and—if the relevant historical date is 1791 and not 1868—it may ultimately not matter much in Hawaii’s case.  But Hawaii has continued to defend elements of its permit system.  The state’s attorney general issued a statement immediately after the Bruen decision was announced, saying that the state would “consider if it will affect our laws, which were not at issue in the Supreme Court case today” and “some of [which] date back to the days of the Kingdom of Hawaii.”  This may have been merely bravado, as the AG later issued an opinion letter stating that the “exceptional case” requirement “should no longer be enforced.”  On the other hand, it’s worth considering whether Hawaii believes it has a reasonable argument that a state- (and kingdom-) specific historical tradition supports some stricter level of permit regulation than in states without that history, even after Bruen.

[1]  The 1852 law was later accompanied by a separate statutory provision that specified the process for granting a gun license, and the Hawaii Supreme Court held in 1897 that a proper license “would be a good defense” to a charge under the Act to Prevent the Carrying of Deadly Weapons.  See Rep. of Hawaii v. Clark, 10 Haw. 585, 587 (1897).  

[2]  It’s notable, however, that an amicus brief filed by Texas Governor Greg Abbott in support of the petitioners in Bruen took the opposite approach:  Abbott used the 1836 Republic of Texas constitution, along with an anecdote about a Republic of Texas Supreme Court judge defending himself against an intruder by using a bowie knife, to argue that the right to bear arms in Texas is part of a deep-seated historical tradition.

[3]  The legality of the U.S. annexation of Hawaii is a separate topic that won’t be addressed in any detail here, other than to note that some scholars (and even U.S. government officials) have suggested the U.S. had no authority to annex Hawaii by joint Congressional resolution (as it purported to do in 1898), rather than by treaty.  See generally Williamson Chang, Darkness over Hawaii:  The Annexation Myth Is the Greatest Obstacle to Progress, 16.1 Asian-Pacific Law & Policy Journal 70 (2015); Department of Justice Office of the Legal Counsel, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” 12 Op. O.L.C. 238 (Oct. 4, 1988), available at https://www.ojp.gov/pdffiles1/Digitization/141886NCJRS.pdf, at 320-22.