UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE K. YOUNG, JR.,

Plaintiff-Appellant,

v.

STATE OF HAWAII; NEIL

ABERCROMBIE, in his capacity as

Governor of the State of Hawaii;

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¨C25; JANE DOES, 1¨C25; DOE

CORPORATIONS, 1¨C5; DOE ENTITIES,

1¨C5,

Defendants-Appellees.

No. 12-17808

D.C. No.

1:12-cv-00336HG-BMK

OPINION

2

YOUNG V. STATE OF HAWAII

Appeal from the United States District Court

for the District of Hawaii

Helen W. Gillmor, District Judge, Presiding

Argued and Submitted En Banc September 24, 2020

San Francisco, California

Filed March 24, 2021

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.

O¡¯Scannlain, M. Margaret McKeown, Kim McLane

Wardlaw, William A. Fletcher, Richard R. Clifton, Jay S.

Bybee, Consuelo M. Callahan, Sandra S. Ikuta, Michelle T.

Friedland and Ryan D. Nelson, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge O¡¯Scannlain;

Dissent by Judge R. Nelson

YOUNG V. STATE OF HAWAII

3

SUMMARY*

Civil Rights

The en banc court affirmed the district court¡¯s dismissal

of an action challenging Hawai¡®i¡¯s firearm licensing law,

Hawai¡®i Revised Statutes ¡ì 134-9(a), which requires that

residents seeking a license to openly carry a firearm in public

must demonstrate ¡°the urgency or the need¡± to carry a

firearm, must be of good moral character, and must be

¡°engaged in the protection of life and property.¡±

Appellant George Young applied for a firearm-carry

license twice in 2011, but failed to identify ¡°the urgency or

the need¡± to openly carry a firearm in public. Instead, Young

relied upon his general desire to carry a firearm for selfdefense. Both of Young¡¯s applications were denied. Young

brought a challenge to Hawai¡®i¡¯s firearm-licensing law under

the Second Amendment and the Due Process Clause of the

Fourteenth Amendment. The district court upheld Hawai¡®i¡¯s

statute.

The en banc court first held that the scope of its review

would be limited to Young¡¯s facial challenge to HRS ¡ì 134-9.

There was no need to determine whether Hawai¡®i County

properly applied ¡ì 134-9, because Young did not bring an asapplied challenge.

The en banc court noted that this Court has previously

held that individuals do not have a Second Amendment right

*

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

to carry concealed weapons in public. Peruta v. County of

San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). The

question presented in this case, accordingly, was limited to

whether individuals have a right to carry weapons openly in

public. To answer that question, and consistent with 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), the en banc court first considered

whether Hawai¡®i¡¯s law affects conduct protected by the

Second Amendment.

After careful review of the history of early English and

American regulation of carrying arms openly in the public

square, the en banc court concluded that Hawai¡®i¡¯s

restrictions on the open carrying of firearms reflect

longstanding prohibitions, and therefore, the conduct they

regulate is outside the historical scope of the Second

Amendment. The en banc court held that the Second

Amendment does not guarantee an unfettered, general right

to openly carry arms in public for individual self-defense.

Accordingly, Hawai¡®i¡¯s firearms-carry scheme is lawful.

The en banc court rejected Young¡¯s argument that HRS

¡ì 134-9 is invalid as a prior restraint because it vests chiefs of

police with unbridled discretion to determine whether a

permit is issued. Joining its sister circuits, the en banc court

held that the prior restraint doctrine does not apply to Second

Amendment challenges to firearm-licensing laws.

The en banc court also rejected, as premature, Young¡¯s

due process argument that HRS ¡ì 134-9 does not provide

adequate process to challenge the denial of a carry-permit

application. The en banc court noted that Young did not

seek review under HRS ¡ì 91-9 before bringing suit. So,

YOUNG V. STATE OF HAWAII

5

Hawai¡®i has not yet denied him the opportunity for appellate

review. Because Young has not actually been denied a

hearing, his procedural due process claim was speculative,

and there was no need to reach it.

Dissenting, Judge O¡¯Scannlain, joined by Judges

Callahan, Ikuta, and R. Nelson, would hold that both HRS

¡ì 134-9 and the 1997 County regulation destroy the core right

to carry a gun for self-defense outside the home and are

unconstitutional under any level of scrutiny. Judge

O¡¯Scannlain stated that the majority holds that while the

Second Amendment may guarantee the right to keep a

firearm for self-defense within one¡¯s home, it provides no

right whatsoever to bear¡ªi.e., to carry¡ªthat same firearm

for self-defense in any other place. In his view, the

majority¡¯s decision undermines not only the Constitution¡¯s

text, but also half a millennium of Anglo-American legal

history, 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), and the foundational

principles of American popular sovereignty itself.

Dissenting, Judge R. Nelson, joined by Judges Callahan

and Ikuta, concurred with Judge O¡¯Scannlain¡¯s dissent

concluding that Hawaii Revised Statute 134-9 violates the

Second Amendment. Judge R. Nelson wrote that the majority

erred not only in holding the statute facially constitutional,

but also in rejecting Young¡¯s as-applied challenge. He also

wrote separately to highlight the brazenly unconstitutional

County of Hawaii Regulations applying HRS ¡ì 134-9, stating

that there should be no dispute that any law or regulation that

restricts gun ownership only to security guards violates the

Second Amendment.

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