KAILUA-KONA — No one on the Big Island has been issued a concealed carry license and that is unlikely to change any time soon in the wake of a recent Ninth Circuit Court ruling, attorneys say.
The ruling made clear that states can continue to require applicants for concealed carry permits prove they have a need for the weapon, which is what Hawaii has been doing for years.
“There is no Second Amendment right for members of the general public to carry concealed firearms in public,” the Ninth Circuit Court opined in the case of Peruta vs. San Diego. The Circuit covers Hawaii, California and other western states, and the decision was released June 9.
On Hawaii, that means for of the status quo, although there are a few Hawaii-related court cases that are taking on the topic.
On the Big Island, 66 applications were filed with Hawaii Police Department Chief Harry Kubojiri since 2006, none were granted. Since 2009, 12 appeals were pursued, none was successful.
“All applications are reviewed on a case-by-case basis. We cannot speak in generalities or give examples as each situation is different. Why none issued? We are in pending litigation at this time; although Peruta appears dispositive (settled), we have been advised not to comment on actual procedures at this time,” Kubojiri wrote in a letter to West Hawaii Today.
The litigation affecting the department includes a case by George Young, who sued over Kubojiri’s concealed carry denials and questioned state law denying access to weapons like stun guns and switchblades. Young’s case links to Baker v. Kealoha, a Honolulu case, which links to the Peruta case, in that they all question the law.
Hawaii law specifies that “in an exceptional case, when an applicant shows reason to fear injury to the applicant’s person or property, the chief of police of the appropriate county may grant a license to an applicant,” subject to additional restrictions such as citizenship and criminal history.
The state of Hawaii wrote in support of the California law, citing its similarity. In California, the state in which the case before the Ninth Circuit originated, people must also apply to the local law enforcement executive, who makes the determination on issuing the permit.
“Therefore, if carrying firearms in public, openly or concealed, presents a serious public safety risk, public carry should be deemed outside the scope of the Second Amendment,” the Hawaii Attorney General’s office wrote.
The Ninth Circuit case, heard by a panel of 11 judges, is next expected to go before the U.S. Supreme Court. Attorneys for the NRA asked for a further review of the case by all 44 judges in the circuit, which has never been granted.
Denials to continue
In the interim, Kubojiri will continue issuing concealed carry permits at his discretion.
Gun control groups have argued such “may issue” decisions are unconstitutional, in part because it leaves a decision on constitutional rights to one person.
“San Diego County and (other plaintiffs) nevertheless struggle to justify California’s virtually universal denial of the right to carry firearms in public for self-defense on the supposition that armed, law-abiding citizens pose a threat to public safety,” wrote Pink Pistols, a women’s gun rights group, to the court.
That was made explicit in the statement by Hawaii.
“Restricting public carry, as explained earlier, significantly reduces the risk of thousands of daily routine conflicts turning deadly. And, it particularly improves the safety of law enforcement officers,” the state wrote in a supporting statement.
Research by the Violence Policy Center, a gun control group, found that 885 people were killed by people with concealed carry since May 2007. Almost 300 of those deaths were suicides.
“Only a tiny fraction of these cases are ever ruled to be in self-defense. Any homicide that is legally determined to be in self-defense is documented and removed from the Concealed Carry Killers database and the ongoing tallies,” the group wrote.
Since May 2007, VPC said they have identified 29 mass shooting committed by concealed permit holders.
These numbers were challenged by the International Law Enforcement Educators and Trainers Association, who cited a number of cases they claimed either did not occur or lacked sufficient information to be clearly connected to the permit status.
Hawaii related court cases
Denying concealed carry permits to lawful citizens is effectively denying an American his or her Second Amendment right, argued Big Island resident George Young in his case, one of two Hawaii cases connected to the to the California case.
Young filed his case challenging the state law without an attorney in the Hawaii District Court, but when it was dismissed in 2012, San Diego-based attorney Alan Beck entered the case.
“He had his civil rights violated by the court,” said Beck, explaining that occurred when the judge dismissed the case outright rather than address the concerns expressed. “The lower court ignored what he was asking for and just threw out the case.”
There were also some other legal matters that Beck feels were done improperly, so he filed an appeal.
But the Young case has to follow what happens in an ongoing 2012 case from Honolulu, Baker v. Kealoha, challenging that a lack of issuance unfairly denied people their rights.
Regardless of what occurs in the Peruta or Baker cases, Beck sees a possibility that a decision in the Young case will make open carry of handguns possible in Hawaii, Beck said. It’s also possible it would allow people to carry permitted rifles in general, not exclusively to and from approved areas.
If the Ninth Circuit case goes up to the current Supreme Court, a decision would likely be four to four, assuming the nation’s highest court even takes the case, Beck said.
Since the Heller case was five to four, and the now-deceased Anton Scalia wrote in favor of the gun rights-friendly decision.
The Heller case established that banning handguns in public areas and keeping them nonfunctional in the home was unconstitutional.
The appeal in the Ninth Circuit gives enough time that Donald Trump may be elected and able to fill that position, Beck said.
That was implicit in the NRA-ILA’s statement after the decision.
“Once again the 9th Circuit showed how out of touch it is with mainstream Americans. This decision will leave good people defenseless, as it completely ignores the fact that law-abiding Californians who reside in counties with hostile sheriffs will now have no means to carry a firearm outside the home for personal protection. This flawed ruling underscores the importance of the 2016 election. It is imperative that we elect a President who will appoint Supreme Court justices who respect the Second Amendment and law-abiding citizens’ right to self-defense,” Chris W. Cox, executive director, National Rifle Association Institute for Legislative Action.
“We believe (the Peruta case) is well reasoned and will pass Supreme Court review if any occurs,” the chief wrote.