Young v Hawaii: The Man, The Lawsuit, The Right
Who is George Young, who has been fighting in the legal system for our rights for all these years? What is his lawsuit seeking and where does it stand today? What is the right that is the basis for the lawsuit, and how and why do we have that right?
It’s a long and complex story which I will try to greatly simplify here for those who may be unfamiliar with the case and/or Second Amendment litigation in general. First we’ll look at some personal information about Mr. Young, and then delve just a bit into the context and details of his current lawsuit, and the right at stake.
George Young is a Hawaii County (“Big Island”) resident who has filed a lawsuit because he has been denied his Constitutionally-protected right to lawfully bear arms outside his home for self-defense.
An article from Reuters gives some basic background information on Mr. Young and the genesis of his lawsuit.
George Young is a Vietnam War veteran who sued the state of Hawaii three times on his own without a lawyer for the right to carry a handgun, and lost each time.
“I went around the state of Hawaii and contacted about 17 attorneys and all of them turned me down. They said I would only lose,” said Young, 68. “I want to see it through to the end, which is the U.S. Supreme Court.”
After he left the Army, Young carried a firearm for 17 years as an airport security guard but lost that right after he retired. He failed to convince the County of Hawaii’s police chief he deserved a permit, so he sued, saying his constitutional right to bear arms was violated.
He filed suits in 2008, 2010 and 2012 to challenge the denials, losing each time.
Young, who is part native Hawaiian and part descendant of Japanese plantation workers, became passionate about the issue while teaching his late daughter Tim, who died in a car accident in 2004 at age 21, about the Constitution.
“She was my pet. Of my three children she was the one to follow me everywhere,” Young said.
One day, as they discussed the Constitution, Young was startled when she told him he could not carry a handgun in Hawaii, so he began his quest.
“I made the promise that they cannot take your Second Amendment away,” Young said. “So to prove it to her, that’s when I started.”
First some general background about bearing arms. The Second Amendment states that “…the right of the people to keep and bear arms shall not be infringed”. There are commonly two methods of bearing arms, either “concealed carry” or “unconcealed” (aka “open carry”). The county police chiefs are responsible for providing applications to the public for carry licenses, and making the decisions to grant or deny such licenses, which are good only in the county of issue and for one year before requiring a renewal application. In the state of Hawaii there is no record of any license for “open carry” ever having been granted to anyone other than a security guard, or a person employed in a similar position (the state labels these as “security” on their required reporting form submitted monthly by the county police departments). Since the state mandated that records be kept and submitted to the state in 2000, there have only been four (4) licenses issued for concealed carry (labeled “citizen” by the state). Two of those were issued in 2001 in Maui county, and the records no longer exist as to the circumstances of those licensees. The other two “citizen” licenses were issued in Kauai county in 2006 to a judge, and in 2013 to (apparently) a military service member or a member of a service member’s family. As for Hawaii county, where Mr. Young resides and applied for his license to carry either openly or concealed, not one single “citizen” license has ever been issued during the years of mandated record keeping (the last 19 years), nor has a “security” license been issued to anyone other than a security guard. Former Hawaii county Chief of Police Kubojiri, a member of the force for 25 years, responded to a citizen inquiry that to his knowledge no “citizen” license had EVER been issued in the county.
And so the legal battle for Mr. Young to be granted a license to carry a firearm outside his home wages on to this day (January 2019), with no end in sight. The case originally included numerous challenges to a variety of Hawaii’s restrictive laws regarding both carrying and even possessing self-defense weapons (electric guns (stun guns and TASERs, etc.) and various knives, etc. that are banned in Hawaii), as well as the ability to lawfully carry rifles and shotguns outside the home. As the case made its way through various lower courts it was slowly whittled down to really only addressing the issue of whether Mr. Young had a right to bear a firearm outside his home for self-defense. And that is the issue as it currently stands in the Ninth Circuit Court of Appeals.
As put by the decision of the three judge panel, written by the author of the original Peruta decision (Peruta I), judge Diarmud O’Scannlain: “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.” The question of the right to carry a firearm concealed has been foreclosed by the en banc panel decision in Peruta (Peruta II): “[T]he 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.” Mr. Young had applied for either or both a license to carry a firearm openly or concealed. He was denied both, and during the course of his pending lawsuit, the above Peruta II decision was rendered, thus making moot his claim to a right to carry concealed.
The question then became one of whether the Second Amendment protects a right to bear arms outside the home at all, and if so if open carry is the (only remaining) mode protected. Judge O’Scannlain goes into lengthy detail as to the reasoning for his decision being based upon the text and history of the Second Amendment, as described as the proper means of analysis by the Supreme Court of the United States (SCOTUS) in Heller and McDonald, the cases which established that the right to keep and bear arms is an individual right and is not dependent in any manner on service or membership in any militia. Via such textual and historical analysis it was determined in Heller that the core right is the right to self-defense, and O’Scannlain quotes a decision of the Illinois Supreme Court to summarize: “[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.’” Supreme Court Justice Thomas made the same point in writing re the Peruta denial of cert (petition to the court to hear an appeal of the Ninth Circuit Court of Appeals en banc ruling in Peruta II) by SCOTUS : “I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
Judge O’Scannlain deconstructs the state and county arguments against any member of the public carrying outside the home in great detail. One argument is that all public locations are “sensitive places” (described, not exhaustively, in Heller as “sensitive places, such as schools and government buildings”), and as such, subject to “regulation”, including prohibition on carrying.
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.’”
Judge O’Scannlain challenges the other arguments presented by the state and county and concludes that Mr. Young’s rights have been infringed (because no concealed carry licenses have ever been issued, and open carry licenses have only been issued to persons employed as security guards and the like, as per the county regulations restricting issuing open carry licenses only to people “engaged in the protection of life and property” and limited to when they are in “the actual course of their duties”). Does that (“in the course of their duties”) sound like something that applies to the “typical law-abiding citizen” for whom rights must not be infringed?
The decision is lengthy, with extensive analysis by judge O’Scannlain of numerous issues, with the conclusions that:
Restrictions challenged under the Second Amendment must be analyzed with regard to their effect on the typical, law-abiding citizen.
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.
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.
Thus, we hold that section 134-9’s limitation on the open carry of firearms to those “engaged in the protection of 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.
The case was remanded to the district court to be re-adjudicated in line with the decision that such restrictions on issuing open carry licenses as currently are in place in Hawaii County may no longer be enforced, i.e. open carry licenses must be made available to law-abiding members of the general public, the same as all other constitutionally-protected rights apply to them without government infringement.
The state has in effect appealed that decision by asking the Ninth Circuit to grant its petition to rehear the case en banc, which means by a panel of 10 randomly selected judges, plus the chief judge. This is the scenario that ensued after judge O’Scannlain wrote the original three judge panel decision in Peruta (Peruta I) granting that the Second Amendment protected a right to concealed carry, which was then overturned by the en banc panel and later denied cert at SCOTUS. Let’s hope Mr. Young is more fortunate. Now we wait. Again.
We often hear re “the right to keep and bear arms” that “It is my Second Amendment right”. I believe it is somewhat important for people to realize that the right to keep and bear arms is protected by the Second Amendment, but that right is not created by the Second Amendment. One reason this is important is because no matter what happens to the Second Amendment, via lawful legislative amendment or abolition, or any court-interpreted limitations, the right to self-defense, including the keeping and bearing of arms still exists. The Second Amendment only states that the right may not be infringed by government, it does not create or grant the right.
The rights listed in the Bill of Rights, are all rights the Founders considered to be “natural rights” or “God-given rights”, that is, all humans are born with those rights and they may not be revoked unless said person violates the rights of others (e.g. convicted felons, etc.). As Jefferson wrote in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”. All humans have certain rights at birth, and they are “unalienable”… cannot be taken away under any circumstances other than due to unlawfully breaching the rights of others (criminal acts, etc.).
Judge O’Scannlain in the Young decision reiterates this point, by quoting from Heller and other decisions that the right to keep and bear arms is “pre-existing”, and “merely” codified by the Constitution. This concept was affirmed by SCOTUS in Cruikshank in 1876: “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” All humans have that right independent of the existence of the Constitution, or any other document or law.
Many, if not all, of the Founders were influenced by 17th century British political philosopher John Locke, who in 1689 (102 years before the Bill of Rights was ratified) published “Two Treatises on Government”, wherein he elucidated the concept of natural law and natural rights, including:
The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign master, sent into the world by his order.
Thus deeming all laws created by people and governments as being inherently “inferior” (in the sense of “lower”) to the natural laws which are not subject to being overridden by any man-made laws. i.e. “shall not be infringed”. The right to self-defense (including the use of the most effective tools for that purpose) is inherent at birth for all humans, and may not be revoked by any act of government. It is unalienable…. as the Bill of Rights to the Constitution declares. Now we just need the courts to invoke and impose that concept on our (state and county) government so that we don’t get arrested, prosecuted, and incarcerated for exercising our God-given natural rights.
Keep your fingers crossed… and lobby the legislature to restore our rights.
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The Young v Hawaii Ninth Circuit panel ruling, for those interested in the details, including the dissent, is here: https://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/12-17808.pdf
HAWAII FIREARMS COALITION
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We are changing that, we are unifying Hawaii’s firearms owners and those that believe in the constitutionally protected right to bear arms and motivation them to stand up, be counted and effect change.
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About Hawaii Firearms Coalition
Hawaii Firearms Coalition promotes legislative and legal action, as well as research, publication and advocacy, in support of people’s civil liberties. Hawaii Firearms Coalition litigates firearm-regulation cases, and it has consistently advocated for a principled interpretation of the United States Constitution to prevent government from violating the basic civil rights of its citizens.
Hawaii Firearms Coalition works with other groups, clubs, originations and individuals to unify Hawaii’s firearms owners towards the common goal of defending their rights, themselves and their families.