FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGE K. YOUNG, JR., No. 12-17808 Plaintiff-Appellant, D.C. No. v. 1:12-cv-00336- HG-BMK STATE OF HAWAII; NEIL ABERCROMBIE, in his capacity as Governor of the State of Hawaii; OPINION 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, 1–25; JANE DOES, 1–25; DOE CORPORATIONS, 1–5; DOE ENTITIES, 1–5, Defendants-Appellees.

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

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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 § 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 self- defense. 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 § 134-9. There was no need to determine whether Hawai‘i County properly applied § 134-9, because Young did not bring an as- applied 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 § 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 § 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 § 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 § 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—i.e., to carry—that 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 § 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.

6 YOUNG V. STATE OF HAWAII

COUNSEL

Alan Alexander Beck (argued), San Diego, California; Stephen D. Stamboulieh, Stamboulieh Law PLLC, Madison, Mississippi; for Plaintiff-Appellant.

Neal Kumar Katyal (argued), Colleen E. Roh Sinzdak, Mitchell P. Reich, and Sundeer Iyer, Hogan Lovells US LLP, Washington, D.C.; Clare E. Connors, Attorney General; Kimberly T. Guidry, Solicitor General; Robert T. Nakatsuji and Kaliko‘Onalani D. Fernandes, Deputy Solicitors General; Department of the Attorney General, Honolulu, Hawaii; Joseph K. Kamelamela, Corporation Counsel; Laureen L. Martin, Litigation Section Supervisor; D. Kaena Horowitz, Melody Parker, Christopher P. Schlueter, Michael J. Udovic, and Kimberly K. Angay, Deputies Corporation Counsel; Office of the Corporation Counsel, Hilo Hawaii; for Defendants-Appellees.

Kimberly T. Guidry, Solicitor General; Robert T. Nakatsuji, Deputy Solicitor General; Department of the Attorney General, Honolulu, Hawaii; for Amicus Curiae State of Hawaii.

Deepak Gupta and Jonathan E. Taylor, Gupta Wessler PLLC, Washington, D.C.; Eric Tirschwell and Mark Anthony Frassetto, Everytown for Gun Safety Support Fund, New York, New York; Janet Carter, William J. Taylor Jr., and Lisa M. Ebersole, Everytown Law, New York, New York; for Amicus Curiae Everytown for Gun Safety.

Simon J. Frankel, Covington & Burling LLP, San Francisco, California; Paulina K. Slagter, Covington & Burling LLP, Los Angeles, California; J. Adam Skaggs and David Pucino,

YOUNG V. STATE OF HAWAII 7

Giffords Law Center to Prevent Gun Violence, New York, New York; Hannah Shearer, Giffords Law Center to Prevent Gun Violence, San Francisco, California; for Amicus Curiae Giffords Law Center to Prevent Gun Violence.

Gurbir S. Grewal, Attorney General; Andrew J. Bruck, Executive Assistant Attorney General; Jeremy M. Feigenbaum, Assistant Attorney General; Claudia Joy Demitro, Adam D. Klein and Tim Sheehan, Deputy Attorneys General; Attorney General’s Office, Trenton, New Jersey; Xavier Becerra, Attorney General, Sacramento, California; William Tong, Attorney General, Hartford, Connecticut; Matthew P. Denn, Attorney General, Wilmington, Delaware; Kwame Raoul, Attorney General, Chicago, Illinois; Tom Miller, Attorney General, Des Moines, Iowa; Maura Healey, Attorney General, Boston, Massachusetts; Brian E. Frosh, Attorney General, Baltimore, Maryland; Letitia James, Attorney General, New York, New York; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Peter F. Neronha, Attorney General, Providence, Rhode Island; Mark R. Herring, Attorney General, Richmond, Virginia; Karl A. Racine, Attorney General, Washington, D.C.; for Amici Curiae New Jersey, California, Connecticut, Delaware, Illinois, Iowa, Massachusetts, Maryland, New York, Oregon, Rhode Island, Virginia, and the District of Columbia.

Xavier Becerra, Attorney General; Michael J. Mongan, Solicitor General; Thomas S. Patterson, Senior Assistant Attorney General; Samuel P. Siegel and Helen H. Hong, Deputy Solicitors General; Jonathan M. Eisenberg and P. Patty Li, Deputy Attorneys General; Department of Justice, Sacramento, California; for Amicus Curiae State of California.

8 YOUNG V. STATE OF HAWAII

John W. Dillon, Gatzke Dillon & Ballance LLP, Carlsbad, California, for Amicus Curiae San Diego County Gun Owners Political Action Committee.

Richard L. Holcomb, Holcomb Law LLLC, Honolulu, Hawaii, for Amicus Curiae Hawai‘i Rifle Association.

Donald L. Wilkerson, Laupahoehoe, Hawaii, for Amicus Curiae Hawaii Firearms Coalition.

Herbert W. Titus, Robert J. Olson, William J. Olson, and Jeremiah L. Morgan, William J. Olson P.C., Vienna, Virginia; Joseph W. Miller, Restoring Liberty Action Committee, Fairbanks, Alaska; for Amici Curiae Gun Owners of America, Gun Owners Foundation, Heller Foundation, Virginia Citizens Defense League, Conservative Legal Defense and Education Fund, and Restoring Liberty Action Committee.

David G. Sigale, Law Firm of David G. Sigale P.C., Glen Ellyn, Illinois, for Amicus Curiae Second Amendment Foundation.

Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer APC, San Jose, California, for Amici Curiae Madison Society Inc. Calguns Foundation, Firearms Policy Coalition Inc., and Firearms Policy Foundation.

John Cutonilli, Garrett Park, Maryland, pro se Amicus Curiae.

Neal Goldfarb, Washington, D.C., pro se Amicus Curiae.

YOUNG V. STATE OF HAWAII 9

Adita Dynar and Mark Chenoweth, New Civil Liberties Alliance, Washington, D.C., for Amicus Curiae New Civil Liberties Alliance.

Jeff Landry, Attorney General; Elizabeth Baker Murrill, Solicitor General; Josiah M. Kollmeyer, Assistant Solicitor General; Department of Justice, Baton Rouge, Louisiana; Steven T. Marshall, Attorney General, Alabama; Mark Brnovich, Attorney General, Arizona; Leslie Rutledge, Attorney General, Arkansas; Christopher M. Carr, Attorney General, Georgia; Lawrence G. Wasden, Attorney General, Idaho; Aaron Negangard, Chief Deputy Attorney General, Indiana; Derek Schmidt, Attorney General, Kansas; Daniel Cameron, Attorney General, Kentucky; Lynn Fitch, Attorney General, Mississippi; Timothy C. Fox, Attorney General, Montana; Douglas J. Peterson, Attorney General, Nebraska; Wayne Stenehjem, Attorney General, North Dakota; Dave Yost, Attorney General, Ohio; Mike Hunter, Attorney General, Oklahoma; Alan Wilson, Attorney General, South Carolina; Jason Ravnsborg, Attorney General, South Dakota; Ken Paxton, Attorney General, Texas; Sean D. Reyes, Attorney General, Utah; Patrick Morrisey, Attorney General, West Virginia; for Amici Curiae States of Louisiana, Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia.

Dan Jackson, Special Deputy Corporation Counsel, Keker Van Nest & Peters LLP, San Francisco, California, for Amici Curiae City and County of Honolulu, County of Kaua‘i, and County of Maui.

10 YOUNG V. STATE OF HAWAII

Brian R. Matsui and Samuel B. Goldstein, Morrison & Foerster LLP, Washington, D.C.; Jamie A. Levitt and Janie C. Buckley, Morrison & Foerster LLP, New York, New York; for Amici Curiae Corpus Linguistics Professors and Experts.

Michael T. Jean, National Rifle Association of America— Institute for Legislative Action, Fairfax, Virginia, for Amicus Curiae National Rifle Association of America.

Matthew J. Silveira, Jones Day, San Francisco, California, for Amici Curiae Social Scientists and Public Health Researchers.

Mark D. Selwyn, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California; Nicholas G. Purcell, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Professors of History and Law.

Antonio J. Perez-Marques, Sushila Rao Pentapati, Victor Obasaju, Korey Boehm, and Thomas Dec, Davis Polk & Wardwell LLP, New York, New York, for Amicus Curiae Prosecutors Against Gun Violence.

Joseph G.S. Greenlee, Firearms Policy Coalition, Sacramento, California; David B. Kopel, Independence Institute, Denver, Colorado; for Amici Curiae Professors of Second Amendment Law, Firearms Policy Coalition, Firearms Policy Foundation, Cato Institute, Madison Society Foundation, California Gun Rights Foundation, Second Amendment Foundation, and Independence Institute.

C.D. Michel, Sean A. Brady, and Matthew D. Cubeiro, Michel & Associates P.C., Long Beach, California; James

YOUNG V. STATE OF HAWAII 11

Hochberg, James Hochberg Attorney at Law LLLC, Honolulu, Hawaii; for Amici Curiae Hawaii Rifle Association, California Rifle & Pistol Association Inc., and Gun Owners of California.

Mark M. Murakami, Damon Key Leong Kupchak Hastert, Honolulu, Hawaii; Jonathan Lowy, Kelly Sampson, and Christa Nichols, Brady, Washington, D.C.; for Amicus Curiae Brady.

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OPINION

TABLE OF CONTENTS

I. BACKGROUND AND PROCEEDINGS . . . . . . . . . 15 A. Hawai‘i’s Licensing Scheme. . . . . . . . . . . . . . . . . 15 1. History of Firearm Regulation in Hawai‘i . . . 15 2. Hawai‘i’s Current Scheme . . . . . . . . . . . . . . . 18 a. The statute. . . . . . . . . . . . . . . . . . . . . . . . . 18 b. The County of Hawai‘i’s regulations . . . . 19 c. Hawai‘i Attorney General Opinion Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. Facts and Proceedings . . . . . . . . . . . . . . . . . . . . . 22 II. THE STANDARDS FOR OUR REVIEW . . . . . . . . . 25 A. Standards of Review of Law and Fact . . . . . . . . . 25 B. Scope of Our Review. . . . . . . . . . . . . . . . . . . . . . . 25 C. Substantive Standards for the Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1. Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 2. Our Post-Heller Framework . . . . . . . . . . . . . . 34 III. PUBLIC CARRY OF FIREARMS AND THE SCOPE OF THE SECOND AMENDMENT . . . . . . . 36 A. The English Right to Bear Arms in Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1. The Royal Decrees . . . . . . . . . . . . . . . . . . . . . 40 2. The Statute of Northampton . . . . . . . . . . . . . . 43 a. The statute. . . . . . . . . . . . . . . . . . . . . . . . . 43 b. Enforcement . . . . . . . . . . . . . . . . . . . . . . . 47 c. Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 d. Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . 52 3. The English Bill of Rights . . . . . . . . . . . . . . . 55 B. Colonial Restrictions on the Right to Bear Arms in Public . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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C. Post Second Amendment Restrictions on the Right to Bear Arms . . . . . . . . . . . . . . . . . . . . . . . . 62 1. Post-Ratification Restrictions . . . . . . . . . . . . . 64 2. Nineteenth-Century Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 a. The statutes . . . . . . . . . . . . . . . . . . . . . . . . 65 b. The cases. . . . . . . . . . . . . . . . . . . . . . . . . . 73 c. Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . 87 3. Twentieth-Century Restrictions . . . . . . . . . . . 92 D. The Power to Regulate Arms in the Public Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 1. The Basic Rule . . . . . . . . . . . . . . . . . . . . . . . . 96 2. The Exceptions . . . . . . . . . . . . . . . . . . . . . . . 107 a. Classes of persons. . . . . . . . . . . . . . . . . . 107 b. Places . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 c. Licensing and good-cause requirements 108 d. Surety . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 E. Response to the Dissent . . . . . . . . . . . . . . . . . . . 113 F. Application to HRS § 134-9 . . . . . . . . . . . . . . . . 122 IV. OTHER CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . 123 A. Prior Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . 124 B. Procedural Challenge. . . . . . . . . . . . . . . . . . . . . 126 V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

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BYBEE, Circuit Judge:

The State of Hawai‘i requires its residents to obtain a license to carry a firearm in public. To satisfy the statutory requirements for an open-carry license, residents 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 self-defense. Both of Young’s applications were denied. Young brought a facial 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.

We have previously held that individuals do not have a Second Amendment right 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 is whether individuals have a right to carry weapons openly in public. In order 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), we ask, first, whether Hawai‘i’s law affects conduct protected by the Second Amendment. If so, we then determine if the law can survive the appropriate level of scrutiny. After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second

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Amendment. Accordingly, Hawai‘i’s firearms-carry scheme is lawful. We affirm the judgment of the district court.

I. BACKGROUND AND PROCEEDINGS

A. Hawai‘i’s Licensing Scheme

1. History of Firearm Regulation in Hawai‘i

Hawai‘i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago—nearly fifty years before it became a U.S. territory and more than a century before it became a state. Hawai‘i enacted its first statutory regulation of public carry in 1852. The aptly named “Act To Prevent the Carrying of Deadly Weapons” recognized that “the habit of carrying deadly weapons is dangerous to life and the public peace.” Act of May 25, 1852, 1852 Haw. Sess. Laws 19. To combat those risks, Hawai‘i’s pre-territorial legislative council prescribed fines and imprisonment for “[a]ny person not authorized by law, who shall carry, or be found armed with, any bowie- knife, sword-cane, pistol, air-gun, slung-shot or other deadly weapon.” Id. § 1. The Act of May 25, 1852 categorically exempted certain professionals “authorized to bear arms,” such as those “holding official, military, or naval rank . . . when [the firearm was] worn for legitimate purposes.” Id. § 2.

Hawai‘i’s regulation of dangerous weapons remained in effect after Hawai‘i consented to annexation as a U.S. territory in 1898. Under the Newlands Resolution, “[t]he municipal legislation of the Hawaiian Islands . . . not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of

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the United States, shall remain in force until the Congress of the United States shall otherwise determine.” Resolution of July 7, 1898, 30 Stat. 750. See Territory of Hawai‘i v. Mankichi, 190 U.S. 197, 209 (1903). Hawai‘i’s territorial legislature renewed its 1852 limitations on the carrying of dangerous weapons in a 1905 Act, as amended in 1913. Haw. Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw. Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913 statute made it unlawful to carry deadly weapons unless “authorized by law.” Id. The statute imposed civil and criminal penalties on anyone who carried a “deadly weapon” without prior authorization “unless good cause be shown for having such dangerous weapon.” Id.

In 1927, Hawai‘i implemented its first restriction on firearms specifically, as opposed to restrictions on the broader class of “deadly weapons.” In a section entitled “Carrying or keeping small arms by unlicensed person,” the law provided:

Except as otherwise provided in Sections 7 and 11 hereof in respect of certain licensees, no person shall carry, keep, possess or have under his control a pistol or revolver; provided, however, that any person who shall have lawfully acquired the ownership or possession of a pistol or revolver may, for purposes of protection and with or without a license, keep the same in the dwelling house or business office personally occupied by him, and, in the case of an unlawful attack upon any person or property in said house or office, said pistol or revolver may be carried in any lawful, hot pursuit of the assailant.

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Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927 Act, which was modeled in part on the Uniform Firearms Act, required a person to obtain a license to carry a “pistol or revolver concealed upon his person or to carry one elsewhere than in his home or office.” Id. § 7. Carry licenses could be issued by the sheriff or a sitting judge after either had determined that applicant was “suitable . . . to be so licensed.” Id. An applicant was deemed “suitable” to carry a firearm upon meeting a citizenship and age requirement and showing a “good reason to fear an injury to his person or property, or . . . other proper reason for carrying a pistol or revolver.” Id.

In 1933, the Hawai‘i legislature further refined its concealed-carry licensing scheme. Act 26, § 8, 1933–1934 Haw. Sess. Laws Spec. Sess. ^[35], 39. To carry a concealed weapon, the applicant had to demonstrate an “exceptional case” and a “good reason to fear injury to his person or property.” Id.

The “exceptional case” and “good reason to fear injury” requirements included in the 1933 Act became staples of Hawai‘i’s future firearm regulations. The Hawai‘i legislature included those requirements in its 1961 Act “Relating to Permits to Carry Firearms.” Act 163, 1961 Haw. Sess. Laws 215. The 1961 regulations mirrored those in the 1933 statute and required an applicant to demonstrate an “exceptional case” and a “good reason [for the applicant] to fear injury to his person or property” before publicly carrying a firearm. Id. § 1. Whereas the 1933 Act only applied to concealed carry, however, the 1961 Act announced a new regulatory scheme for open carry. An individual seeking to carry a firearm openly in public was required to demonstrate “the urgency of the need” to carry and must be “engaged in the protection of life and property.” Id. If the applicant made such a showing

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and was not otherwise prohibited from possessing a firearm, the chief of police had discretion to grant the carry application. Id. (“[T]he respective chiefs of police may grant a license . . . .”).

2. Hawai‘i’s Current Scheme

a. The statute. Hawai‘i’s current scheme allows individuals to possess firearms under a variety of circumstances. First, individuals who are not members of law enforcement, the armed forces, or certain federal agencies and wish to carry firearms in places outside of their homes, places of business or sojourns must obtain a license from the county chief of police. Hawai‘i Revised Statutes (HRS) § 134-9(a). Second, individuals may possess firearms in their homes, places of business, and sojourns. Id. § 134-23. Third, persons who are authorized by their public employers, including law enforcement, the armed forces, and certain federal agencies, are exempt from other restrictions and may carry in public. Id. § 134-11(a). Fourth, any person, sixteen years or older “may carry and use any lawfully acquired rifle or shotgun and suitable ammunition while actually engaged in hunting or target shooting.” Id. § 134-5(a). Additionally, “[a] person may carry unconcealed and use a lawfully acquired pistol or revolver while actually engaged in hunting game mammals.” Id. § 134-5(c).

Hawai‘i’s public carry licensing scheme is substantially the same today as it was in 1961. Hawai‘i continues to distinguish between concealed carry and open carry, although it is not clear that the difference is particularly significant. To obtain a concealed carry license from a county chief of police, a person must first show “an exceptional case” and a “reason to fear injury to [his or her] person or property.”

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HRS § 134-9(a). As to open carry, the statute states in relevant part:

Where the urgency or the need has been sufficiently indicated, the respective chief of police may grant to an applicant of good moral character who is a citizen of the United States of the age of twenty-one years or more, is engaged in the protection of life and property, and is not prohibited under section 134-7 from the ownership or possession of a firearm, a license to carry a pistol or revolver and ammunition therefor unconcealed on the person within the county where the license is granted.

Id. Many of the statute’s requirements are objective. For instance, whether the applicant meets the citizenship, age, or legal-ownership requirements may be determined by the reviewing chief of police by a simple review of the application and law enforcement databases. On the other hand, “the urgency or the need” for the license and the applicant’s participation in “the protection of life and property” appear to be subjective requirements not discoverable by reference to a law enforcement database.

b. The County of Hawai‘i’s regulations. In October 1997, the County of Hawai‘i—where Young lives and where he applied for several carry permits—promulgated county- wide rules to evaluate permit applications under § 134-9. See HRS § 91-3 (detailing the rule-making process for county boards, county commissions, and other agencies authorized by law to make rules). These “Rules and Regulations Governing the Issuance of Licenses to Carry Concealed and

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Unconcealed Weapons” outline the process the chief of police would follow in reviewing carry applications under § 134-9.

The county regulation imposed different rules for concealed arms and for unconcealed arms consistent with § 134-9’s bifurcation, but a brief review of the regulations reveals several inconsistencies between the state statute and the county’s administration. At the outset, it is clear that Hawai‘i County’s regulations are more demanding than § 134-9. For instance, the regulations seem to consider open- carry permit applications to be available only to “private detectives and security guards.” In fact, the first subheading reads “Rules and Regulations Governing the Carrying of Concealed Weapons and the Carrying of Weapons by Private Detectives and Security Guards.” The regulation also provides the chief of police a mechanism by which to cancel a previously issued carry permit upon termination of the applicant’s employment. Meanwhile, § 134-9 does not impose a professional requirement on the applicant, nor does it distinguish between applications by security guards and applications by other citizens.

The county regulation also applies to a broader class of weapons than does § 134-9. Whereas § 134-9 applies only to the public carry of “a pistol or revolver and ammunition therefor,” the county regulation defines “firearm” to include “rifles, shotguns, automatic firearms, noxious gas projectors, mortars, bombs, and cannon[s].” Section 134-9 did not contemplate any of those classes of arms. Similarly, the county regulation also applies to non-firearm “weapons” that could be concealed on the person, including “knives, blackjacks, batons, night sticks, and chemical agents designed to temporarily subdue or incapacitate a person.” Again, § 134-9 is silent on such weapons.

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c. Hawai‘i Attorney General Opinion Letter. After this litigation began, the Hawai‘i Attorney General issued a formal opinion interpreting § 134-9’s requirements and clarified that § 134-9 does not reserve open-carry permits to security guards. See State of Haw., Dep’t of the Att’y Gen., Opinion Letter No. 18-1, Availability of Unconcealed-Carry Licenses (Sept. ^[11], 2018) (https://ag.hawaii.gov/wp-content /uploads/2018/09/AG-Opinion-No.-18-1.pdf) (Att’y Gen. Letter). The Attorney General unequivocally rejected Hawai‘i County’s interpretation that an open-carry permit applicant must demonstrate a professional need to carry, such as being a private investigator or security guard. Id. at 3–4. The Attorney General concluded that such a showing would be inconsistent with § 134-9, which “does not limit unconcealed-carry licenses to individuals employed as private security officers.” Id. at 6. All that the statute requires is that the applicant (1) meet the objective qualifications; (2) be of good moral character; (3) demonstrate “sufficient need”; and (4) present no other reason to be disqualified. Id. at 6–7.

According to the Attorney General’s Opinion Letter, an applicant’s need is “sufficient” if it is urgent and is related to “engage[ment] in the protection of life and property.” Id. at 7 (citing HRS § 134-9). The urgency requirement “connote[s] an immediate, pressing, and heightened interest in carrying a firearm.” Id. at 8. Coupled with the requirement that the applicant be “engaged in the protection of life and property,” an applicant must demonstrate more than a “generalized concern for safety.” Id.; see also id. at 7 (noting that the statute only requires an applicant to show a need for armed self-defense “that substantially exceeds the need possessed by ordinary law-abiding citizens”) (citing Drake v. Filko, 724 F.3d 426, 428 & n.2 (3d Cir. 2013)). The Attorney General provided several examples of applicants who would

22 YOUNG V. STATE OF HAWAII plausibly qualify for an open-carry license regardless of their profession.^[1]

The Attorney General’s Opinion Letter did not repeal Hawai‘i County’s regulations, but its interpretation of state law is considered “highly instructive.” See Kepo<o v. Watson, 952 P.2d 379, 387 n.9 (Haw. 1998). And even without the Attorney General’s clarification, the statute—not the county’s regulation—would control. See Ruggles v. Yagong, 353 P.3d 953, 964 (Haw. 2015) (citing HRS § 46-1.5(13)) (Hawai‘i law “authorizes county ordinances ‘to protect health, life, and property . . .’ as long as they are ‘not inconsistent with’” state law.). Further, each of Hawai‘i’s other counties agree that § 134-9 does not require consideration of an applicant’s profession when evaluating a carry-permit application. See Brief of City and County of Honolulu, et. al., as Amici Curiae 4–6 (“The Attorney General’s interpretation of section 134-9, HRS, comports with [Honolulu, Kaua‘i, and Maui] Counties’ past and current practice[s].”).

B. Facts and Proceedings

George Young wishes to carry a firearm in public—concealed or unconcealed—but does not fall into one of Hawai‘i’s categorical exceptions for law enforcement and military personnel. In 2011, Young applied twice for a license in the County of Hawai‘i. In both applications, Young cited a general need for “personal security, self- preservation and defense, and protection of personal family As guided by Heller, the historical inquiry begins with the writings of “important founding-era legal scholars”—the

136 YOUNG V. STATE OF HAWAII evidence most probative of how the Framers understood the right to bear arms. 554 U.S. at 605.

The plain textual understanding of “bear arms” finds unequivocal support in the most prominent, widely circulated legal treatises from throughout the Founding era. In an early American edition of Blackstone’s Commentaries on the Laws of England—indeed, the “most important” edition, as Heller points out, see 554 U.S. at 594—St. George Tucker, a law professor at the College of William & Mary and an influential Antifederalist, insisted that the right to armed self-defense is the “first law of nature” and that “the right of the people to keep and bear arms” is the “true palladium of liberty.”1 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia app. n.D, at 300 (Phil., William Young Birch & Abraham Small 1803); see also McDonald, 561 U.S. at 769 (treating Tucker’s notes on Blackstone as heavily instructive in interpreting the Second Amendment); Heller, 554 U.S. at 606 (same). Even more explicitly, Tucker wrote that “[i]f . . . congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts . . . would be able to pronounce decidedly upon the constitutionality of these means.” 1 Tucker, supra, at app. n.D, at 289; see also Michael P. O’Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense,

1 Hawaii bizarrely suggests that we should not focus too heavily on Tucker, whom Hawaii discounts as “a single nineteenth-century commentator.” This is a strange attack, indeed, given the Supreme Court’s direct reliance on Tucker’s notes in both McDonald, 561 U.S. at 769, and Heller, 554 U.S. at 606. Tucker’s notes deserve similar weight here.

YOUNG V. STATE OF HAWAII 137

61 Am. U. L. Rev. 585, 637–38 & n.262 (2012). Indeed, as Tucker explained, “[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.” 5 Tucker, supra, at app. n.B, at 14.

Blackstone himself espoused a similar view of the inviolability of an Englishman’s right to bear arms, which was most notably codified in the 1689 English Declaration of Rights as the right of Protestants to “have Arms for their Defence suitable to their Conditions, and as allowed by Law.” Bill of Rights 1689, 1 W. & M., ch. 2, § 7 (Eng.); see also Alden v. Maine, 527 U.S. 706, 715 (1999) (noting that Blackstone’s works “constituted the preeminent authority on English law for the founding generation”). As Blackstone explained, the 1689 Declaration enshrined “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defence.” 1 William Blackstone, Commentaries[*144] .2 It followed from Blackstone’s premise that such a right—the predecessor to our Second Amendment—“was by the time of the founding

2 Blackstone was far from alone in recognizing a natural right to self- defense “belong[ing] to [all] persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it.” 1 William Blackstone, Commentaries[*123] . Quite a few commentators of that era likewise championed such a right. See Leonard W. Levy, Origins of the Bill of Rights 140–41 (2001) (referencing a 1769 article in the prominent colonial newspaper A Journal of the Times, which described the English right as “a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence”); David B. Kopel, The Natural Right of Self-Defense: Heller’s Lesson for the World, 59 Syracuse L. Rev. 235, 242 (2008) (“The Anglo-Americans learned the language of natural rights, including the natural right of self- defense . . . .”).

138 YOUNG V. STATE OF HAWAII

understood to be an individual right protecting against both public and private violence.” Heller, 554 U.S. at 594 (emphasis added); see also 2 William Blackstone, Commentaries[*441] (Edward Christian ed. 1795) (“[E]veryone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.” (emphasis added)).

Following Heller’s historical imperative, the inquiry turns to nineteenth-century judicial interpretation of the right to bear arms, whether as part of the Second Amendment or analogous state constitutional provisions. See 554 U.S. at 610–14. For by analyzing “how the Second Amendment was interpreted . . . immediately after its ratification,” we can “determine the [original] public understanding of [its] text.” Id. at 605. Many of the same nineteenth-century cases marshaled in Heller, to prove that the Second Amendment secures an individual right to self-defense, reveal just as persuasively that the Amendment encompasses a right to carry a firearm openly outside the home. a

The first of these is Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), cited in Heller, 554 U.S. at 585 n. 9, a decision “especially significant both because it is nearest in time to the founding era and because the state court assumed (just as [Heller] does) that the constitutional provision at issue codified a preexisting right,” Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1360 (2009) (footnote omitted). Interpreting Kentucky’s Second Amendment analogue—which provided

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that “the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned”—the state’s highest court had no doubt that any law restricting the public carry of firearms would “import a restraint on the right of the citizens to bear arms.” Bliss, 12 Ky. (2 Litt.) at 90, 92. The court then invalidated a restriction on the concealed carry of weapons, despite the availability of open carry, reasoning that “whatever restrains the full and complete exercise of [the right to bear arms], though not an entire destruction of it, is forbidden by the explicit language of the constitution.” Id. at 91–92. Kentucky later amended its constitution to allow the legislature to “pass laws to prevent persons from carrying concealed arms,” Ky. Const. art. XIII, § 25 (1850) (emphasis added), but left untouched the premise in Bliss that the right to bear arms protects open carry.

Tennessee’s highest court offered its own, similar interpretation of the right to bear arms in Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833), cited in Heller, 554 U.S. at 585 n.9, 603, 614. There, after Simpson was convicted of disturbing the peace by appearing armed in public, he faulted the indictment for failing to require clear proof of actual violence. Id. at 357–58. The high court agreed. Id. at 357–60. First, the court cast doubt on the State’s argument that English law would have allowed conviction without proof of actual “fighting of two or more persons.” Id. at 357–58 (quoting 4 William Blackstone, Commentaries[*145] ). Second, the court explained that even assuming English law had criminalized the carrying of weapons without proof of actual violence, the Tennessee “constitution ha[d] completely abrogated it.” Id. at 360. No such prohibition could survive the state constitution’s grant of “an express power . . . secured to all the free citizens of the state to keep and bear arms for

140 YOUNG V. STATE OF HAWAII their defence, without any qualification whatever as to their kind or nature.” Id.

In 1840, the Alabama Supreme Court offered a similar interpretation of its own state’s constitution. See State v. Reid, 1 Ala. 612 (1840), cited in Heller, 554 U.S. at 585 n.9, 629. Construing the Alabama “right to bear arms, in defence of []self and the State,” the court declared that an Alabamian must be permitted some means of carrying a weapon in public for self-defense. Id. at 616–17. The court ultimately upheld a restriction on “the evil practice of carrying weapons secretly,” citing the legislature’s power “to enact laws in regard to the manner in which arms shall be borne. . . . as may be dictated by the safety of the people and the advancement of public morals.” Id. at 616 (emphasis added). But the court made clear where that legislative power ran dry:

We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.

Id. at 616–17.3

3 The majority curiously (and erroneously) suggests that, many decades later, the Alabama Supreme Court recognized a state power to impose “severe restrictions” on open public carry in a case that upheld a prohibition against carrying certain arms on private property owned by another. See Maj. Op. 77–78 (citing Isaiah v. State, 58 So. 53 (Ala.

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The Georgia Supreme Court embraced precisely the same position in an opinion central to the Supreme Court’s historical analysis in Heller. See Nunn v. State, 1 Ga. 243 (1846), cited in Heller, 554 U.S. at 585 n.9, 612–13, 626, 629; O’Shea, supra, at 627 (“No case, historic or recent, is discussed more prominently or positively in Heller than the Georgia Supreme Court’s 1846 decision in Nunn v. State.”). There, the court considered a Second Amendment challenge to a statute that criminalized carrying a pistol, either openly or concealed. Nunn, 1 Ga. at 245–46. Starting off with a clear statement of the constitutional guarantee, the court explained: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree . . . .” Id. at 251 (emphasis omitted). With those Second Amendment lines properly set, the court held that Georgia’s statute had gone too far:

[S]o far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms

1911)). Aside from relying on a concurrence rather than the majority opinion in that case, the majority fails to point out that the law specifically allowed open carry on public highways “or elsewhere other than upon the premises of another.” Isaiah, 58 So. at 54. Accordingly, the court held that such a restriction was constitutional specifically because it “merely prevents the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state.” Id. 142 YOUNG V. STATE OF HAWAII openly, is in conflict with the Constitution, and void . . . . Id. We should afford Nunn’s understanding of the Second Amendment significant weight because, as Heller explains, “[i]ts opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause.” 554 U.S. at 612. The Louisiana Supreme Court soon followed the course set by Alabama and Georgia. See State v. Chandler, 5 La. Ann. 489 (1850), cited in Heller, 554 U.S. at 585 n.9, 613, 626. The high court first rejected Chandler’s Second Amendment challenge to a Louisiana law prohibiting concealed carry, reasoning that the law was “absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons.” Id. at 489–90. But, in precisely the same manner as the Nunn and Reid courts, the Chandler court drew the line which the legislature could not cross. The court explained that a prohibition on concealed carry could be held constitutional because it “interfered with no man’s right to carry arms . . . ‘in full open view,’ which places men upon an equality. This is the right guaranteed by the Constitution of the United States . . . .” Id. at 490 (emphasis added); see also Heller, 554 U.S. at 613 (citing favorably Chandler’s holding that “citizens had a right to carry arms openly”). The majority largely rejects the lessons of these cases by first suggesting that only Bliss could support the view that open public carry was historically understood to be within the scope of the Second Amendment, then characterizing Bliss as an “isolated decision.” See Maj. Op. 74–75, 86. While Bliss YOUNG V. STATE OF HAWAII 143 may have gone farther than other nineteenth-century cases in holding that any restraint on “the full and complete exercise of th[e] right [to bear arms] . . . is forbidden by the . . . constitution,” 12 Ky. (2 Litt.) at 91–92, it could hardly be described as an outlier for purposes of the issue before us here. Our question is not whether the Second Amendment was historically understood to foreclose any and all regulation of public carry. Rather, the question is and must be whether the right to “keep and bear Arms” was originally understood to limit states’ power to restrict the freedom to carry a firearm in public for self-defense. And Bliss is far from the only nineteenth-century case to hold that extensive prohibitions on open carry would indeed infringe on a constitutionally protected right—even if the manner of open public carry could be regulated at its margins. Simpson, Reid, Nunn, and Chandler all stand for precisely that proposition.^[4] In short, the same nineteenth-century cases found instructive by the Supreme Court in Heller underscore what nineteenth-century legal commentator John Ordronaux (also cited in Heller) aptly summarized: Though “a State [might] enact[] laws regulating the manner in which arms may be carried,” including “the carrying of concealed weapons,” any “statute forbidding the bearing of arms openly would . . . infringe[]” the Second Amendment. John Ordronaux, Constitutional Legislation in the United States: Its Origin, and Application to the Relative Powers of Congress, and of 4 And, just after the turn of the twentieth century, the Supreme Court of Idaho likewise struck down a robust territorial prohibition against the public carry of firearms, holding that it violated of the Second Amendment because “the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages.” In re Brickey, 70 P. 609, 609 (Idaho 1902). 144 YOUNG V. STATE OF HAWAII State Legislatures 242–43 (1891), cited in Heller, 554 U.S. at 619. b The majority observes that there were some judicial proponents of a more limited right to bear arms during the nineteenth century. See Maj. Op. 79–84. But their reasoning rests on the untenable militia-based view of the right, which carries no interpretive weight after Heller. Most prominent is the Arkansas Supreme Court’s 1842 interpretation of the right in State v. Buzzard, 4 Ark. 18 (1842). There, a divided court upheld a prohibition on the concealed carry of “any pistol, dirk, butcher or large knife, or a sword in a cane,” id. at 18, but each judge in the splintered majority appeared poised to go further. Chief Justice Ringo advocated the view that the Second Amendment did not bar the Arkansas legislature from prohibiting any carrying of firearms: “[N]o enactment on this subject, which neither directly nor indirectly so operates as to impair or render inefficient the means provided by the Constitution for the defense of the State, can be adjudged invalid on the ground that it is repugnant to the Constitution.” Id. at 27 (opinion of Ringo, C.J.). Chief Justice Ringo believed this to be so specifically because such restrictions would not “detract anything from the power of the people to defend their free state and the established institutions of the country.” Id. Justice Dickinson echoed this view, writing that the Second Amendment was nothing “but an assertion of that general right of sovereignty belonging to independent nations to regulate their military force,” thus finding no individual right within its guarantee. Id. at 32 (opinion of Dickinson, J.); but YOUNG V. STATE OF HAWAII 145 see id. at 34–36 (Lacy, J., dissenting) (viewing the Second Amendment as an individual right to self-defense). Several other nineteenth-century courts hewed to Buzzard’s approach and upheld laws restricting public carry without emphasizing, as did courts in Nunn’s camp, the limits of legislative authority. See Hill v. State, 53 Ga. 472, 474–77 (1874) (upholding prohibition on carrying weapons “to any court of justice . . . or any place of public worship, or any other public gathering . . . except militia muster grounds”); English v. State, 35 Tex. 473, 474, 480 (1871) (upholding prohibition on carrying “pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives”); State v. Workman, 14 S.E. 9, 10–12 (W. Va. 1891) (upholding presumption of criminality “when a man is found going around with a revolver, razor, billy, or brass knuckles upon his person”). Like Buzzard, each decision was explicitly premised on a militia-focused view of the right to bear arms. See Hill, 53 Ga. at 475 (“In what manner the right to keep and bear these pests of society [dirks, bowie knives, and the like], can encourage or secure the existence of a militia, and especially of a well regulated militia, I am not able to divine.”); English, 35 Tex. at 477 (“The terms dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives, belong to no military vocabulary.”); Workman, 14 S.E. at 11 (“So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia . . . .”).5 5 Moreover, not even all the cases with militia-focused views of the right to bear arms took Buzzard’s approach to open public carry. Several such cases protected the right to bear arms in a way that supports, or is at least consistent with, a right to such carry. See, e.g., Andrews v. State, 50 Tenn. (3 Heisk.) 165, 186–87 (1871) (holding that, if a pistol “is 146 YOUNG V. STATE OF HAWAII With Heller on the books, cases in Buzzard’s flock offer little instructive value. That is because Heller made clear that the Second Amendment is, and always has been, an individual right centered on self-defense; it has never been a right to be exercised only in connection with a militia. See 554 U.S. at 592, 599, 616; see also Wrenn, 864 F.3d at 658 (reasoning that such cases are “sapped of authority by Heller”); Moore, 702 F.3d at 941 (treating “the historical issues as settled by Heller”); O’Shea, supra, at 653 (“Decisions like English . . . have little relevance to determining the scope of Second Amendment carry rights today . . . [because] the question presented by current carry litigation is whether firearms that are constitutionally protected, as Heller holds handguns to be, may be carried outside the home pursuant to a constitutional right to bear arms that is not a hybrid individual right [or] a fictive ‘collective right’ . . . , but instead is centrally concerned with self-defense.”). Contrary to the majority’s suggestion, Maj. Op. 116, recognition of this reality does not require one to believe that Heller directly answered the historical question before us. But Heller undeniably dictates which historical question we must now endeavor to answer: Was the right to bear arms for the purpose of individual self-defense historically understood to protect a person’s right to carry common arms in public? Cases like Buzzard offer historical answers to a different question altogether—namely, whether open public carry of handguns was protected by a right to adapted to the usual equipment of the soldier,” then a statute that “forbids by its terms the carrying of the weapon publicly or privately, without regard to time or place, or circumstances . . . . violates the constitutional right to keep arms”); Aymette v. State, 21 Tenn. (2 Hum.) 154, 160 (1840) (“In the nature of things, if they were not allowed to bear arms openly, they could not bear them in their defence of the State at all.”). YOUNG V. STATE OF HAWAII 147 bear arms for the specific purpose of facilitating the militia’s “defen[se] [of the] free state and the established institutions of the country.” Buzzard, 4 Ark. at 27 (opinion of Ringo, C.J.).6 Although ours is an historical inquiry, we are judges, not historians. And, bound as the inferior court that we are, we may not revisit questions of historical interpretation already decided in binding decisions of the Supreme Court, as the majority seems so keen to do. Rather, we may only assess whether the right to bear arms extends outside the home on the understanding—dictated by Heller—that the right is an individual one centered on self-defense. On such an understanding, cases like Buzzard only bear upon the entirely irrelevant question of whether open public carry was embraced by state constitutions’ militia-focused provisions for keeping and bearing arms (or by erroneously militia- focused views of the Second Amendment). We, by contrast, are interested in whether open public carry is embraced by the U.S. Constitution’s individual right to “keep and bear Arms.” 6 The majority dismisses Heller’s relevance on this point only by grossly understating its holding. The majority suggests that Heller left open the possibility that the Second Amendment protects gun rights only to the extent that such rights are relevant to a functional militia. See Maj. Op. 120–22. Nothing could be further from the truth. To be sure, Heller observed that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right [to keep and bear arms]—unlike some other English rights—was codified in a written Constitution.” Heller, 554 U.S. at 599 (emphasis added). But the Court made abundantly clear that the substance of the right that was so codified was not limited to militia-relevant firearms practices. Rather, even if it might be shown that individual “self-defense had little to do with the right’s codification[,] it was the central component of the right itself.” Id. 148 YOUNG V. STATE OF HAWAII c Setting aside those cases that rest on a militia-focused view of the right to bear arms, there remain only two nineteenth-century cases that might be read to allow severe deprivations of the right to open carry. Upon closer examination, neither is instructive on the meaning of the Second Amendment. The first, State v. Duke, is an 1874 decision from the Supreme Court of Texas, which concluded that the legislature could confine the carry of pistols to specified places (at least if the bearer did not have reasonable grounds to fear an attack). 42 Tex. 455, 456–59 (1875). Why the departure from the Nunn line of cases? One need only peek at the Texas constitutional provision under which Duke was decided, which provided that “[e]very person shall have the right to keep and bear arms in the lawful defense of himself or the State, under such regulations as the Legislature may prescribe.” Id. at 458 (emphasis added). While the Second Amendment surely tolerates some degree of regulation, its very text conspicuously omits any such regulatory caveat. We shouldn’t pencil one in.^[7] The second case, Walburn v. Territory, is an 1899 decision from the Supreme Court of the Territory of Oklahoma, decided at the very end of the nineteenth century. ^[7] And “even Duke, an outlier which marks perhaps the most restrictive interpretation that any nineteenth-century court gave to the defense-based right to bear arms, implicitly rejected no-carry laws as unconstitutional” when it reasoned that the Texas provision “was constitutional because it ‘respected the right to carry a pistol openly when needed for self-defense.’” O’Shea, supra, at 655 (quoting Duke, 42 Tex. at 459). YOUNG V. STATE OF HAWAII 149 See 59 P. 972 (Okla. 1899). Convicted of carrying a revolver on his person, Walburn challenged his conviction on several grounds, one being that Oklahoma’s carrying prohibition was “in conflict with the constitution of the United States.” Id. at 973. Beyond such a general assertion, however, “[n]o authorities [were] cited in support of this position, nor [was] the proposition very earnestly urged.” Id. Accordingly, the court rejected the challenge: “As at present advised, we are of the opinion that the statute violates none of the inhibitions of the constitution of the United States, and that its provisions are within the police power of the territory.” Id. (emphasis added). There is little reason to credit a decision that explicitly acknowledged a lack of due consideration. Cf. Heller, 554 U.S. at 623–24 (rejecting the dissent’s reliance on United States v. Miller, 307 U.S. 174 (1939), in part because of the incomplete briefing in Miller and its lack of a thorough consideration of the history of the Second Amendment). d In sum, there are at least five nineteenth-century cases (plus another that came two years into the twentieth century) in which state supreme courts held that the individual right to bear arms for self-defense—i.e., the right guaranteed by the Second Amendment—must encompass a right to open public carry. And the majority has not cited a single apposite case in which any nineteenth-century court held to the contrary.

Finally, Heller’s historical methodology leads us to the legislative scene following the Civil War. See 554 U.S. at 614–16.

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Particularly relevant in this period are the efforts of many Southern states to disarm freedmen by adopting Black Codes.^[8] For it was universally understood—by these odious laws’ proponents and opponents alike—that the debates over the Black Codes were debates over freedmen’s fundamental constitutional rights.

On the one side, “[t]hose who opposed these injustices frequently stated that they infringed blacks’ constitutional

8 Those freedmen who had fought for the Union Army during the war frequently returned home “to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks.” McDonald, 561 U.S. at 771; see also The Freedmen’s Bureau Bill, N.Y. Evening Post, May 30, 1866, at 2 (“In South Carolina and Florida the freedmen are forbidden to wear or keep arms.”). These were part and parcel with the broader efforts of “those who sought to retain the institution of slavery . . . to eliminate more and more of the basic liberties of slaves, free blacks, and white abolitionists.” See McDonald, 561 U.S. at 843–44 (Thomas, J., concurring in part and concurring in the judgment).

Emblematic of these efforts was an 1865 law in Mississippi that declared, “no freedman, free negro or mulatto . . . shall keep or carry fire- arms of any kind, or any ammunition, dirk or bowie knife.” Id. at 771 (majority opinion) (quoting Certain Offenses of Freedmen, 1865 Miss. Laws 165, § 1, in 1 Documentary History of Reconstruction 289 (W. Fleming ed. 1950)). The law was vigorously enforced. As an 1866 letter from Rodney, Mississippi, to Harper’s Weekly lamented, “[t]he militia of this county have seized every gun and pistol found in the hands of the (so called) freedmen. . . . They claim that the statute laws of Mississippi do not recognize the negro as having any right to carry arms.” The Labor Question at the South, Harper’s Weekly, Jan. ^[13], 1866, at 19. Seeking help from outside of the state, the letter emphasized that such Mississippi laws did “not protect, but insist[ed] upon infringing on their liberties.” Id. Worse still, “[w]ithout federal enforcement of the inalienable right to keep and bear arms, . . . militias and mobs were tragically successful in waging a campaign of terror against [newly free slaves].” McDonald, 561 U.S. at 856 (Thomas, J., concurring in part and concurring in the judgment).

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right to keep and bear arms.” Heller, 554 U.S. at 614; see also Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (Winter 1995) (“The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms . . . . These restrictive gun laws played a part in provoking Republican efforts to get the Fourteenth Amendment passed.”).

As they witnessed the state governments of the former Confederacy turning a blind eye to mob violence against newly freed slaves, the Reconstruction Republicans came to recognize that “when guns were outlawed, only the Klan would have guns.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 266 (1998) [hereinafter Bill of Rights]. Yet such blatant injustices did not continue unnoticed by Congress, which established the Freedmen’s Bureau to vindicate the constitutional rights of freedmen still suffering in the Reconstruction South. Working to fulfill its mandate, an 1866 report by the Bureau targeted a Kentucky law that sought to deprive freedmen of their Second Amendment rights: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms . . . . Their arms are taken from them by the civil authorities . . . . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H.R. Exec. Doc. No. 70, at 233, 236 (1866), quoted in Heller, 554 U.S. at 614–15. And Kentucky was far from the only state subject to scrutiny; a joint congressional report decried a South Carolina practice of “seizing all fire- arms found in the hands of the freedmen.” J. Comm. on Reconstruction, H.R. Rep. No. 30, pt. ^[2], at 229 (1866) (Proposed Circular of Brigadier General R. Saxton), quoted in Heller, 554 U.S. at 615.

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On the other side, even those congressmen who opposed federal action to protect the rights of freedmen understood the fundamental constitutional rights at stake. Senator Davis of Kentucky acknowledged, on equal footing with the writ of habeas corpus, the right “for every man bearing his arms about him and keeping them in his house, his castle, for his own defense,” but argued that congressional action on the matter would usurp the role of Kentucky in caring for its citizens. Cong. Globe, 39th Cong., 1st Sess. 370–71 (1866) (Sen. Davis) (emphasis added), cited in Heller, 554 U.S. at 616.

Indeed, even before the Civil War, those who had sought to dispossess black Americans of the right to carry arms for self-defense understood that they were really seeking to dispossess black Americans of fundamental constitutional rights. This was made all-too-painfully clear by the Supreme Court’s infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), rendered four years before the first shots were fired at Fort Sumter. See McDonald, 561 U.S. at 807–08, 822–23, 849 (Thomas, J., concurring in part and concurring in the judgment) (looking to Dred Scott as necessary context for Reconstruction-era historical analysis). Writing for the Court, Chief Justice Taney—disgracefully— dismissed Dred Scott’s suit for freedom after concluding that black men and women had never been a part of the sovereign “people” of the United States and therefore could find no recourse in an Article III court. See Dred Scott, 60 U.S. (19 How.) at 407. To hold otherwise, Chief Justice Taney wrote, would have “entitled [black Americans] to the privileges and immunities [i.e., fundamental rights] of citizens” and thus granted them the rights he felt only whites could enjoy: “[I]t would give them the full liberty of speech in public and in private upon all subjects upon which [white] citizens might

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speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” Id. at 416–17 (emphasis added).

C

To summarize the history canvassed thus far: The important Founding-era treatises, the probative nineteenth- century case law, and the post–Civil War legislative scene all reveal a single American voice. The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense. Perhaps surprisingly, the majority does not seriously dispute either the linguistic or historical evidence recounted above.

Instead—and in lieu of any apposite cases that actually upheld the constitutionality of severe restrictions on the open carry of firearms—the majority suggests that the clear lessons of this evidence are undermined by the mere fact that the public carry of firearms has historically been subject to some manner of regulation. While this is undoubtedly true, the evidence of such lesser restrictions on firearms carry does not come close to supporting the majority’s view that any restriction upon public carry—even a complete ban—was understood to be immune to constitutional scrutiny.

For one, the majority argues that the English right to carry weapons openly was severely limited for centuries by the 1328 Statute of Northampton and suggests, in turn, that we should incorporate such an understanding of English rights into our Constitution’s Second Amendment. Exploring

154 YOUNG V. STATE OF HAWAII fourteenth-century English law books (after a thorough dusting) reveals no such thing. a

The Statute of Northampton made it unlawful for an ordinary Englishman to “bring . . . force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.” Statute of Northampton 1328, 2 Edw. ^[3], c. ^[3] (Eng.).9 By its terms, the Statute appears to proscribe the mere act of riding armed, and in the immediate period after Parliament enacted the statute, it appears that some English constables indeed were ordered to enforce the statute literally. See Letter to the Mayor and Bailiffs of York (Jan. ^[30], 1334), in 3 Calendar of the Close Rolls, Edward III, at 294 (H.C. Maxwell-Lyte ed. 1898) [hereinafter Close Rolls]; see also John Carpenter & Richard Whitington, Liber Albus: The White Book of the City of London 335 (Henry Thomas Riley ed. & trans., 1862) (1419) (“[N]o one, of whatever condition he be, [may] go armed in the said city [of London] or in [its] suburbs . . . except the vadlets of the great lords of the land, . . . the serjeants-at-arms of his lordship the King, . . . and such persons as shall come in their company in aid of them . . . for saving and maintaining the said peace . . . .”). But not all English constables faced similar orders. Indeed, officers in Northumberland and at least twelve other counties or “ridings” (sub-counties) were ordered to arrest only “persons riding or going armed to disturb the peace.” Letter to Keepers

9 An “affray,” derived from the French word “effraier” (meaning “to terrify”), is an act that disturbs the peace. See 1 William Hawkins, A Treatise of the Pleas of the Crown 134 § 1 (1716).

YOUNG V. STATE OF HAWAII 155 and Justices of Northumberland (Oct. ^[28], 1332), in 2 Close Rolls, supra, at 610 (emphasis added).

And in any event, looking only to Chaucer’s fourteenth- century England provides little instructive force, particularly because “[c]ommon-law rights developed over time.” Wrenn, 864 F.3d at 660. And over the next few centuries, a narrow interpretation of the statute—like that given to Northumberland constables in 1332—began to dominate the English legal landscape. Writing almost 300 years after the statute was enacted, Serjeant William Hawkins, an English legal commentator praised by Blackstone, explained that “no wearing of Arms is within the meaning of this Statute, unless it be accompanied with such Circumstances as are apt to terrify the People; from whence it seems clearly to follow, That Persons of Quality are in no Danger of Offending against this Statute by wearing common Weapons.” 1 Hawkins, supra, at 136 § 9. Hawkins’s narrow interpretation of the statute was in accord with that of the Court of King’s Bench, which clarified that “the meaning of the [Statute of Northampton] was to punish people who go armed to terrify the King’s subjects.” Sir John Knight’s Case (K.B. 1686), 87 Eng. Rep. 75, 76; 3 Mod. 117, 118 (emphasis added).10

10 The majority erroneously asserts that Chune v. Piott (K.B. 1615), 80 Eng. Rep. 1161, eliminated from “the crime of unlawful carrying” the “element” of “in terrorem populi Regis” (i.e., carrying “to the terror of the king’s people”). See Maj. Op. 49. In actuality, Chune merely held that a valid arrest for “unlawful carrying” did not require the arresting sheriff to have personally witnessed the accused causing terrorem populi Regis. 80 Eng. Rep. at 1162. That is to say, King’s Bench loosened the evidentiary standards by which the element of in terrorem populi Regis could be proven; it did not abandon the element itself. 156 YOUNG V. STATE OF HAWAII To be sure, an untoward intent to terrorize the local townsfolk was not always needed to face arrest and imprisonment. But without malicious intentions or violent behavior, the carrying of weapons alone was prohibited only for such weapons that were specifically known to have a terrorizing effect. As Blackstone interpreted the statute—an interpretation credited by Heller, 554 U.S. at 627—“going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land.” 4 William Blackstone, Commentaries[*149] (emphasis added); accord Joseph Keble, An Assistance to Justices of the Peace, for the Easier Performance of their Duty 147 (1689); Francis Wharton, A Treatise on the Criminal Law of the United States 932 § 2497 (4th ed. 1857). Similarly, Hawkins wrote that “a Man cannot excuse the wearing [of] such Armour” even “by alledging that such a one threatened him.” 1 Hawkins, supra, at 136 § 8; accord Wharton, supra, at 932 § 2497. But clearly not all weapons can be characterized as “dangerous or unusual.” Indeed, Heller itself recognized that the Second Amendment might not preclude restrictions on weapons of that kind. 554 U.S. at 627. Such an exception would—inexplicably—swallow up the whole of the Amendment’s protections if all firearms were defined as “dangerous or usual” per se. See Moore, 702 F.3d at 936 (“[T]he Court cannot have thought all guns are ‘dangerous or unusual’ and can be banned, as otherwise there would be no right to keep a handgun in one’s home for self-defense.”). Consequently, there is little in the Statute of Northampton to suggest that it supports a ban on carrying common (not unusual) arms for defense (not terror). YOUNG V. STATE OF HAWAII 157 b More fundamentally, it would be misguided to accept Hawaii’s invitation to import medieval English law wholesale into our Second Amendment jurisprudence. While English law is certainly relevant to our historical inquiry insofar as the Second Amendment “codified a pre- existing right,” Heller, 554 U.S. at 592, our aim here is not merely to discover the rights of the English. There is a scholarly consensus that the 1689 English right to have arms was less protective than its American counterpart. See Jonathan Meltzer, Note, Open Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 Yale L.J. 1486, 1500 (2014); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 120–22 (1994). Illustratively, the English right was “not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.” Heller, 554 U.S. at 593. In keeping with that limited scope, it included a regulatory caveat of the type consciously spurned by the Framers of the Second Amendment, only guaranteeing the right of Protestants to have arms “as allowed by law.” See Malcolm, supra, at 121, 162. Unsurprisingly, then, not all laws that restricted Englishmen’s right to have arms found a place across the Atlantic. For example, as St. George Tucker observed, it would have been strange to apply in the United States an English law that presumed any gathering of armed men was treasonous, because “the right to bear arms is recognized and secured in the [American] constitution itself.” 5 Tucker, supra, at app. n.B, at 19; see also Cooley, supra, at 270 158 YOUNG V. STATE OF HAWAII (noting that the Second Amendment “was adopted with some modification and enlargement from the English Bill of Rights”); William Rawle, A View of the Constitution of the United States of America 126 (2d ed. 1829) (writing that the English right, unlike the Second Amendment, “is allowed more or less sparingly, according to circumstances”). Thus, instead of stitching into the Second Amendment every odd law that hemmed in the rights of fourteenth-century Englishmen, we are to consider English laws only insofar as they inform the original public understanding of the Second Amendment. To the extent that the Framers did consider the Statute of Northampton instructive of the preexisting right to bear arms, they took a narrow view of its prohibitions. See Eugene Volokh, The First and Second Amendments, 109 Colum. L. Rev. Sidebar 97, 101 (2009). For example, Justice James Wilson, a leading drafter of the Constitution, credited Serjeant Hawkins and construed the statute to prohibit arming oneself “with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.” 2 James Wilson, Collected Works of James Wilson 1138 (Kermit L. Hall & Mark D. Hall eds. 1967); see also Volokh, supra, at 101 (“American benchbooks for justices of the peace echoed [Wilson’s observation], citing Hawkins . . . .”). William Rawle, a prominent member of the Pennsylvania Assembly that ratified the Constitution, likewise cited Hawkins and wrote that the right to bear arms would not rule out a law prohibiting “the carrying of arms abroad by a single individual” if such carry was “attended with circumstances giving [observers] just reason to fear that he purposes to make an unlawful use of them.” Rawle, supra, at 126. YOUNG V. STATE OF HAWAII 159 Justice Wilson and William Rawle’s reading of the statute is confirmed by the various state regulations, adopted throughout the Founding era and beyond, that were expressly modelled after the Statute of Northampton. See Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L.J.F. 121, 129 (2015) (“[S]everal early American states expressly incorporated versions of the Statute of Northampton into their laws.”). The state-enacted Northampton analogues sought to regulate particularly disruptive—more specifically, terrifying—arms carrying. For example, Massachusetts in 1794 enacted a law authorizing justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens.” 1794 Mass. Acts 66, ch. 26 (emphasis added); see also 1786 Va. Acts 35, ch. XLIX (prohibiting going “armed by night []or by day, in fairs or markets, or in other places, in terror of the county”). The North Carolina Supreme Court offered a definitive interpretation of that state’s Northampton analogue in 1843, providing us with the benefit of a more thorough discussion of its elements. See State v. Huntly, 25 N.C. (3 Ired.) 418 (1843). The court clarified: [T]he carrying of a gun per se constitutes no offence. For any lawful purpose—either of business or amusement—the citizen is at perfect liberty to carry his gun. It is the wicked purpose—and the mischievous result—which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in 160 YOUNG V. STATE OF HAWAII such manner as naturally will terrify and alarm, a peaceful people. Id. at 422–23 (emphasis added).

Next, the majority refers to a smattering of nineteenth- century gun regulations, most of which appear to have gone unchallenged in the courts. See Maj. Op. 65–73.

As a threshold matter, one should be wary of divining constitutional meaning from the existence of historical regulations that largely evaded constitutional scrutiny and for which the majority offers no enforcement history. This is especially true where, as here, as “[f]or most of our history[,] the question” of their constitutionality simply “did not present itself”—not least because for more than a century, “the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.” Heller, 554 U.S. at 625–26.

In any event, the nineteenth-century statutes relied upon by the majority simply do not say what the majority claims they say—much less what it needs them to say—which is that the Constitution was generally understood to allow states to “forcefully prohibit[] the mere act of carrying a firearm.” Maj. Op. 66–67. a

Principally, the majority refers to various “surety” laws, as pioneered by Massachusetts and then adopted in YOUNG V. STATE OF HAWAII 161

Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, and West Virginia. The majority characterizes such laws as “a form of prior restraint,” an ostensibly interchangeable “alternative to a broad ban on open carry,” and asserts that they allowed individuals to carry weapons in public “only if they could demonstrate good cause.” Id. at 109–10.

Not so.

Many states during the nineteenth century required people who carried weapons in a disruptive fashion to post a bond (or a “surety”) to ensure their good behavior. See, e.g., Mass. Rev. Stat. ch. 134, § 16 (1836). To enforce the surety requirement, such states commonly relied on a citizen- complaint mechanism. That is, if an arms carrier gave any observer “reasonable cause to fear an injury, or breach of the peace,” the observer could complain to his local magistrate, who might then require the disruptive carrier “to find sureties for keeping the peace,” generally “for a term not exceeding six months.” Id. But if the disruptive carrier also had “reasonable cause to fear an assault or other injury,” such person would be excused from posting sureties despite the complaint. Id. As an example of the pieces put together, Michigan’s 1846 surety law provided that if any person went armed with an “offensive and dangerous weapon, without reasonable cause to fear an assault or other injury . . . he may, on complaint of any person having reasonable cause to fear an injury or breach of the peace, be required to find sureties for keeping the peace.” Mich. Rev. Stat. tit. XXXI, ch. 163, § 16 (1846).

The majority erroneously characterizes surety laws as imposing a severe restriction on the public carry of weapons absent good cause to fear injury. But the majority focuses on

162 YOUNG V. STATE OF HAWAII

an exception to the surety requirement (for carriers with a specialized need for self-defense), while overlooking the clearly limited scope of the requirement in the first place: Only upon a well-founded complaint that the carrier had threatened “injury or a breach of the peace” did the burden to pay sureties even apply. Thus, individuals were generally free to carry weapons without having to pay a surety, unless they had been the subject of a specific complaint. Only then did the “good cause” exception come into play, “exempting even the accused” from the burden of paying sureties. Wrenn, 864 F.3d at 661. In short, “[a] showing of special need did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.” Id.

Even if these laws had required all arms carriers without good cause to post sureties (and they did not), they would not add much to the relevant historical analysis. Heller saw little weight in historical penalties that imposed only “a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail).” 554 U.S. at 633. Certainly, an obligation to post a surety fits that mold. Like a small fine, sureties are “‘akin to modern penalties for minor public- safety infractions like speeding or jaywalking,’ which makes them (in the Court’s view) poor evidence of limits on the [Second] Amendment’s scope.” Wrenn, 864 F.3d at 661 (quoting Heller, 554 U.S. at 633–34). In fact, sureties seem even less noteworthy than small fines, since a disruptive carrier—once he posted a surety—“could go on carrying without criminal penalty.” Id. And if he refrained from breaching the peace, of course, the money he posted as a surety would be returned in a matter of months. The majority’s (unsupported) assertion that such sureties would “have been a severe constraint on anyone thinking of carrying a weapon in public” is therefore unconvincing. Maj. Op. 111.

YOUNG V. STATE OF HAWAII 163 b

Next, the majority observes that some states and federal territories restricted the particular places in which one could legally carry a gun. See id. at 69–70, 72. But that is hardly more helpful to the majority than the Statute of Northampton or the American surety statutes.

While these statutes (unlike surety laws) did impose some actual prohibitions on carrying firearms, they focused narrowly on restricting carry in specifically enumerated, particularly sensitive public places. See, e.g., 1870 Tex. Gen. Laws 63, ch. XLVI, § 1 (prohibiting carry in “any church or religious assembly, any school room or other place where persons are assembled for educational, literary or scientific purposes, or in[] a ball room, social party or other social gathering composed of ladies and gentlemen, or to any election precinct . . . or any other public assembly”); 1889 Ariz. Laws 30, No. 13 §§ 1, 3 (adopting a version of the Texas statute). Such statutes establish nothing beyond the anodyne proposition—acknowledged in Heller and not disputed here—that the Second Amendment might have historically tolerated “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U.S. at 626.

The fact that such laws existed hardly shows that general prohibitions on public carry would have been understood to be constitutional at the time. On the contrary, the only reason to enact laws specifically prohibiting firearm carry in

164 YOUNG V. STATE OF HAWAII sensitive places would be that carry was presumptively lawful everywhere else.^[11] c

Next, the majority identifies three U.S. territories—New Mexico, Oklahoma, and Wyoming—that enacted broad prohibitions against the public carrying of all manner of weapons toward the end of the nineteenth century. See Maj. Op. 70–72; 1860 N.M. Laws 94, §§ 1–2 (prohibiting the carry, “concealed or otherwise,” of “any class of pistols whatever, bowie knife . . . Arkansas toothpick, Spanish dagger, slung-shot, or any other deadly weapon”); Okla. Stat. ch. 25, art. 47, § 2 (1890) (prohibiting “any person . . . to carry upon or about his person any pistol, revolver, bowie knife, dirk knife loaded cane, billy, metal knuckles, or any other offensive or defensive weapon”); 1876 Wyo. Laws 352,

11 In a similar (though somewhat more colorful) vein, the majority cites in passing an 1880 treatise in which Benjamin Vaughan Abbott approved of regulations that would address the particular danger posed by careless individuals mishandling firearms as “fireworks” in public. See Maj. Op. 90 (citing Benjamin Vaughan Abbott, Judge and Jury 333 (1880)). First, Abbott recognized that the “Constitution secures the right of the people to keep and bear arms,” including the right of a citizen to “keep[] a gun or pistol under judicious precautions” and to “practise[] in safe places the use of it.” Abbott, supra, at 333. But, Abbott contended, a state could nonetheless enact restrictions against “keeping pistols for playthings; carrying them carelessly in the pocket; toying with them at picnics, on board steamers, and in saloons; exhibiting them to curious girls; lending them to boys; firing at random with them upon city sidewalks.” Id.

As with restrictions against the carrying of firearms in particular places, Abbott’s approval of restrictions against using firearms in a particularly careless manner suggests that one would indeed have a right to carry them in ordinary and responsible ways.

YOUNG V. STATE OF HAWAII 165

ch. 52, § 1 (prohibiting “bear[ing] upon [one’s] person, concealed or openly, any fire arm or other deadly weapon, within the limits of any city, town or village”). There are several reasons to be cautious about ascribing much interpretive significance to these laws.

First, it would be exceedingly difficult to discern whether such laws were enacted with a proper understanding of the individual right to armed self-defense secured by the Second Amendment, as opposed to the militia-oriented view of the right that was common at the time. See O’Shea, supra, at 642–53; see also, e.g., Cooley, supra, at 271 (“The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression . . . .”); John Norton Pomeroy, An Introduction to the Constitutional Law of the United States 152–53 § 239 (1868) (“[A] militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. . . . [But] [t]his constitutional inhibition is certainly not violated by laws forbidding persons to carry dangerous or concealed weapons . . . .”). Indeed, the Oklahoma statute included an exception that allowed the public carry of rifles or shotguns for use “in public muster or military drills,” suggesting that it might have been enacted with a mistaken understanding of the nature of the right. Okla. Stat. ch. 25, art. 47, § 5 (1890).

Second, one should be hesitant to assume too much about the constitutional validity of laws that sought to disarm inhabitants of these Western territories, where the unique circumstances of life on the frontier might have motivated territorial legislatures to undertake more severe measures against the use of weapons than we have seen reflected in the

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many state laws recounted above.12 Indeed, just after the turn of the twentieth century, the Idaho Supreme Court struck down as unconstitutional a similarly restrictive measure that had been put in place by the territorial legislature there. See Brickey, 70 P. at 609. And, as with the Black Codes which sought to suppress the ability of freedmen to own guns following the Civil War, there may be reason to question whether similarly illicit goals may have inspired arms restrictions in these heavily Indian territories. See generally Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1680 (2012) (“[T]he relationship of Indians and guns [in early America] developed in parallel to African-Americans and guns, with both groups situated at the bottom of a racial hierarchy that facilitated oppression, noncitizen status, and subjugation.”).

Third, and most fundamentally, one can learn little about the general understanding of the Second Amendment from such isolated statutes, which were enacted so distant from the Founding and for which we have no record of enforcement. Cf. Heller, 554 U.S. at 632 (“[W]e would not stake our interpretation of the Second Amendment upon a single law

12 The majority cites only one state (as opposed to territorial) law that purportedly imposed such a broad prohibition. See 1881 Kan. Sess. Laws 80, 92, ch. 37, § 23 (“The [city] council shall prohibit and punish the carrying of firearms, or other dangerous or deadly weapons, concealed or otherwise . . . .”). But this provision did not actually impose a direct, statewide prohibition on carry. Rather, it was contained in the organic statute incorporating certain cities within the State of Kansas, which in turn directed their city councils to pass ordinances generally regulate potential nuisances ranging from “the carrying of firearms” to the mischief caused by “vagrants, tramps, [and] confidence men.” Id. The majority presents no evidence of the nature of any municipal firearms regulations that were actually enacted pursuant to the Kansas statute.

YOUNG V. STATE OF HAWAII 167

. . . that contradicts the overwhelming weight of other evidence . . . .”). Three statutes of this kind certainly do not undermine the far more extensive historical evidence in support of a more robust view of public-carry rights at the time of our Founding and beyond. d

Finally, the majority suggests the overall effect of this hodgepodge of state and territorial statutes is to show that the government may prohibit the public “carrying of small arms capable of being concealed, whether they are carried concealed or openly.” Maj. Op. 97 (emphasis added). More specifically, the majority attempts to justify this conclusion by observing that many of the statutes in question imposed their restrictions on specifically “enumerated” weapons that “were capable of being concealed.” Id. at 71. But this line of reasoning falters on three distinct levels:

First, the category of “weapons capable of being concealed” appears to be an invention of the majority’s own creation or, at the very least, an historical anachronism. The oldest usage of that phrase the majority can conjure is from a 1923 California statute. Id. at 94 (citing 1923 Cal. Stat. 695, ch. 339). The nineteenth-century statutes themselves were certainly not written in terms of “concealability.” And as the majority concedes, “[m]ost, but not all, of the weapons enumerated in these statutes were capable of being concealed.” Id. at 71 (emphasis added). Rather—as often recognized by the very courts interpreting such statutes—the common thread seems to be that the enumerated weapons were more apt for use in person-to-person confrontation than in hunting or militia activity. See, e.g., English, 35 Tex. at 474 (distinguishing a statute regulating “pistols, dirks,

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daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives” from the regulation of arms “useful and proper to an armed militia”); Hill, 53 Ga. at 474 (same); Workman, 14 S.E. at 11 (same).

That leads right into the second flaw in the majority’s reliance upon such enumerated lists: They again betray a view of the Second Amendment as being focused on militias or hunting—for which rifles and shotguns were most commonly used—rather than individual self-defense. For example, as discussed above, the Oklahoma statute expressly excepted from its list of prohibited weapons the public carry of rifles or shotguns for use “in public muster or military drills.” Okla. Stat. ch. 25, art. 47, § 5 (1890). As already explained at length, Heller foreclosed any reliance on historical sources animated by such an erroneous view that would limit the right to “keep and bear Arms” to only its militaristic applications. Moreover, Heller made clear that restrictions on handguns are especially repugnant to the Second Amendment because handguns are the “quintessential self-defense weapon.” 554 U.S. at 629. Indeed, to paraphrase Heller, “[i]t is no answer to say . . . that it is permissible to ban the [carry] of handguns so long as the [carry] of other firearms (i.e., long guns) is allowed.” Id.

Third, most of the statutes that included versions of the enumerated list of regulated weapons were not prohibitions on open carry at all. Most were surety statutes. See Mass. Rev. Stat. ch. 134, § 16 (1836); 1838 Wis. Laws 379, 381, § 16; Me. Rev. Stat. tit. XII, ch. 169, § 16 (1841); Mich. Rev. Stat. tit. XXXI, ch. 163, § 16 (1846); Minn. Rev. Stat. ch. 112, § 18 (1851); 1854 Or. Laws 218, 220, ch. XVI, § 17. Several others were focused on restricting carry in particularly sensitive places. See 1870 Tex. Gen. Laws 63;

YOUNG V. STATE OF HAWAII 169

1889 Ariz. Laws 30, No. 13, §§ 1, 3. The Georgia statute prohibiting concealed carry of the enumerated weapons expressly allowed for their open carry. See Ga. Code pt. ^[4], tit, 1, div. 9, § 4413 (1861). That leaves only two statutes containing versions of the enumerated weapons list: those adopted by the territories of New Mexico and Oklahoma. See 1860 N.M. Laws 94, § 1; Okla. Stat. ch. 25, art. 47, § 2 (1890). And—for reasons already discussed in the above analysis of those two, isolated, territorial statutes—they are incapable of bearing the analytical load required to establish that “the states broadly agreed that small, concealable weapons, including firearms, could be banned from the public square.” Maj. Op. 72.

D

In sum, the history extensively canvassed above leads to a straightforward conclusion: Beginning in England and throughout the development of the early American Republic, individuals maintained the general right to carry common firearms openly for their own self-defense in public, provided that they did not do so in a way that would “terrorize” their fellow citizens or intrude upon particularly sensitive places like churches or schools.

Of course, the majority arrives at a starkly different conclusion. Namely, the majority reads the history as showing that “the government”—above and beyond its ability to regulate which arms were legal to carry and which places they could be carried—“may . . . even prohibit, in public places[,] . . . the open carrying of small arms capable of being concealed, whether they are carried concealed or openly.” Id. at 97 (emphasis added). Indeed, the majority denies that such an extensive prohibition would implicate “conduct [within]

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the historical scope of the Second Amendment” altogether. Id. at 14–15. In the majority’s words, there is simply “no right to carry arms openly in public.” Id. at 112 (emphasis added).

This must seem strange, given that we are looking at the same historical record, and that—with the exception of certain points at the margins—we appear not to disagree significantly on the substance of what the historical sources actually say. (Indeed, the majority concedes that the “history is complicated, and the record . . . far from uniform[ly]” supports its conclusion. Id. at 40.)13 Our disagreement, it seems, is not so much over what the history says, as it is over what the history would need to say in order to sustain the majority’s atextual conclusion that the scope of the right to

13 On this point, one should not be misled by the majority’s baseless suggestion that the preceding historical review has cherry-picked favorable evidence or somehow been an exercise in something that is “not history.” See Maj. Op. 116. That is flatly wrong. Once one pierces through the majority’s theatrical language, the inescapable fact remains that the majority has identified no historical evidence that has been “discard[ed],” see id. at 115—let alone any that would undermine the conclusions articulated above.

The majority’s fundamental gripe seems to be that the preceding analysis does not (as the majority has largely done) indiscriminately round up the sources cited in the parties’ briefs, decline to consider whether some might merit greater weight than others, and then uncritically accept them all as equally instructive on the present question. It is precisely such an oversimplified view of “history” that ought to be avoided. Otherwise, we would risk falling into exactly the habit the majority wishes to avoid: practicing “law-office history,” controlled by the parties’ self-interested selection of historical evidence and analyzed without “proper evaluation of the relevance of the data proffered.” Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 122 n.13, cited in Maj. Op. 39 n.7.

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“keep and bear Arms” extends no further than the right to “keep” arms inside the home. In other words, our disagreement is not one of historical exegesis, but one of historical synthesis.

In order to establish its startling conclusion that the carrying of common arms for self-defense lies completely outside the Second Amendment, the majority surely must show that complete prohibitions on open public carry were historically understood to be lawful. Perhaps, one would think, the majority might have done so through evidence that the Founding generation had regular experience with such prohibitions and understood them to pose no problem to the new Constitution they were creating. Perhaps the majority might have marshaled evidence that such prohibitions had been commonly upheld against relevant legal challenges in early America. Or perhaps, at least, the majority might have found evidence that such prohibitions, where not subjected to judicial scrutiny, were historically widespread and uncontroversial.

But the majority has found none of the above. All the majority has managed to demonstrate is that the manner of open public carry has at times been regulated (by laws criminalizing the carry of especially dangerous or unusual weapons with the intent or effect of “terrorizing the people,” surety laws, laws restricting carry in particularly sensitive public places, and the like), and that such narrow regulations have at times been upheld or otherwise left unchallenged. When all is said and done, there is a vast and undeniable chasm between these (largely uncontroverted) propositions about the historical presence of some firearms regulation and the far more troubling proposition that the majority today

172 YOUNG V. STATE OF HAWAII pronounces: that public carrying of common arms could generally be banned.14

The majority is left to bridge this chasm by making logical leaps and critically shifting the goalposts in ways it fails to justify. It is utterly baffling for the majority to contend that, merely because the lawful manner of open public carry has historically been regulated in certain respects, we may conclude that the practice of public carry itself is not entitled to constitutional protection. What right enshrined in our Constitution has not historically been regulated to some degree? Surely, we would never hold (for example) that the right to speak publicly on political matters lies wholly outside the First Amendment merely because such speech has been subject to “longstanding, accepted regulation,” cf. Maj. Op. ^[35], in the form of libel laws, defamation laws, and time- place-and-manner restrictions. Yet this is exactly how the majority appears to believe we must interpret the Second Amendment. The majority’s invitation to interpret the right to bear arms “as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” must be rejected. McDonald, 561 U.S. at 780 (plurality op.).

14 The majority might object that it has sometimes “qualified” its analysis as to apply to prohibitions on the public carry of handguns specifically (though, sometimes, it has not, see, e.g., Maj. Op. 112). As discussed above, any such qualification is of no moment, given that Heller made clear that protections for handguns are especially central to the Second Amendment because the handgun is the “quintessential self- defense weapon.” 554 U.S. at 629. If, as the majority says, public carry of the “quintessential self-defense weapon” can be prohibited, what cannot? YOUNG V. STATE OF HAWAII 173 E One last line of argument to rebut: The majority, unavailed by text and history, relies on two ostensible—but in reality, untenable—principles of constitutional construction to buttress its assertion that an individual right to armed self-defense in public would somehow contradict the nature of our constitutional framework. Neither argument holds water.

First, the majority asserts that constitutional rights—across the board—inhere more strongly within the home than outside the home. See Maj. Op. 98–99. The majority cannot identify any case that actually establishes such a “principle.” Instead, it opines that this lurking (and heretofore unidentified) notion is “reinforced . . . by the Third and Fourth Amendments,” which guarantee, respectively, Americans’ rights to be free from the quartering of soldiers and from unreasonable searches and seizures in their homes. Id. at 98.

To the extent they are even relevant to our question here, the lessons of the Third and Fourth Amendments cut in exactly the opposite direction of the majority’s novel approach. The text of both the Third and the Fourth Amendments explicitly announces a focus on “houses.” See U.S. Const. amends. III (“in any house”), IV (“in their . . . houses”). The Second Amendment, by contrast, does not mention any spatial limitations on the right to keep and bear arms whatsoever. See U.S. Const. amend. II. Our inference, then, should be that unlike the Third and Fourth Amendments, the Second Amendment’s lack of any reference

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to the home means its protections are not specifically focused there. See, e.g., Russello v. United States, 464 U.S. ^[16], 23 (1983) (“[Where a legal text] includes particular language in one section of [the document] but omits it in another section of the same . . . , it is generally presumed that [its drafters] act[ed] intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)). It would be odd, indeed, to infer (as the majority apparently does) that the express limitation of two constitutional rights to “houses” means that every other constitutional right is spatially limited by implication. We certainly would never assume as much about any other enumerated right in the Constitution.

In short, it is unnecessary to reach for the Third or Fourth Amendments when the Second Amendment’s own text supplies a clear answer.

Second, the majority raises the structural argument that “the Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces.” See Maj. Op. 99–107, 111–13. But this argument is foreclosed by Heller and, more fundamentally, is premised on deep misapprehensions of the first principles of American popular sovereignty. a

At the outset, the majority’s structural argument suggests that even if “keep[ing]” arms is an individual right, “bear[ing]” arms is a corporate right that belongs to the government alone, which has sole authority to ensure security

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in public. Such a suggestion directly contradicts Heller, which emphatically rejected the argument that the right to “keep and bear Arms” was limited to the “militia.” See 554 U.S. at 579–83, 585–86. This contradiction alone would be a sufficient reason to reject the majority’s assertion that the Second Amendment encompasses no individual right to self-defense in public. b

But the flaws of the majority’s structural argument run deeper than its incompatibility with Heller.

The heart of the majority’s argument is the proposition that “[t]he states, in place of the king, assumed primary responsibility” for “securing what was formerly known as ‘the king’s peace.’” Maj. Op. 101. The majority reasons that “maintaining the ‘king’s peace’ was the king’s duty and, in the English view, the carrying of weapons in public areas was an affront to the king’s authority.” Id. at 102. This entire line of reasoning overlooks our Constitution’s profound departure from English ideas about the nature and locus of sovereignty. The great and enduring conceit of our Founders’ political theory was their insistence on breaking any analogy between the king’s sovereignty and that of the states.

What the majority overlooks is that our Constitution relocated the king’s sovereignty not in American State or federal governments, but in “We the People of the United States.” U.S. Const. pmbl. Indeed, copious volumes of scholarly ink have been spilled in showing that the Constitution’s text, history, and structure converge on this

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conclusion.^[15] And it has been a bedrock principle of constitutional construction since the dawn of American constitutional jurisprudence. See, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 472 (1793) (opinion of Jay, C.J.) (“In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people . . . .”); id. at 461 (opinion of Wilson, J.) (criticizing England’s “haughty notions of . . . state sovereignty and state supremacy” as allowing “the state [to] assum[e] a supercilious preeminence above the people, who have formed it”).

With a proper conception of American popular sovereignty, it should be easy to see the irrelevance of “the English view” that “the carrying of weapons in public areas was an affront to the king’s authority” insofar as it “suggested that the king was unwilling or unable to protect the people.” Maj. Op. 102. For an English subject to “carr[y] arms publicly . . . as a vote of no confidence in the king’s ability to maintain [the public peace]” would be an affront to his sovereign. Id. But for an American citizen to carry arms publicly could be no such thing. The American citizen, in contrast with the English subject, is a constituent part of a free and sovereign people, whom state governments serve as agents. Indeed, the “principal object” of our Constitution was not to grant “new rights” from government to the people, but

15 See, e.g., Gordon S. Wood, The Creation of the American Republic: 1776–1787, at 344–89 (1998); Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 235–306 (1988); Bernard Bailyn, The Ideological Origins of the American Revolution 55–93 (1967); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1429–66 (1987).

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rather to “secur[e]” against the government “those rights” we already possess by nature. ^[1] Wilson, supra, at 1053–54. It is thus emphatically the prerogative of the American citizen to give a “vote of no confidence” in state governments’ exercise of those powers delegated from the sovereign people themselves. See, e.g., Chisholm, 2 U.S. (2 Dall.) at 472; 4 Jonathan Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution 9 (1888) (“The people are known with certainty to have originated [our government] themselves. Those in power are their servants and agents; and the people, without their consent, may new- model their government whenever they think proper . . . .” (statement of James Iredell)).

For the same reason, the majority’s suggestion that the values of federalism somehow preclude the Second Amendment from guaranteeing an individual right to carry arms for self-defense in the public square is fundamentally misguided. The majority’s argument is essentially this: As between the federal government and the states, the Constitution gave the states “primary responsibility” for “maintaining the public peace.” Maj. Op. 100–01. And in turn, “[i]t would be anomalous in the extreme if, having gone to the trouble of spelling out the respective responsibilities of the new federal government and the states in 1789, the framers of the Bill of Rights undid that relationship with the Second Amendment (adopted in 1791).” Id. at 106. By “that relationship,” the majority appears to refer to the ostensible principle that “it is peculiarly the duty of the states to defend the public square.” Id. at 99.

The majority’s argument begs the very question which must be answered. To be sure, the “general police power” is “retained by the States,” to the exclusion of any federal

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general police power. United States v. Lopez, 514 U.S. 549, 567 (1995). So we know that states generally have primacy over the national government for protecting the public peace. But the question here is whether the State governments were understood to exercise a “duty to protect [their] citizens,” Maj. Op. 106, that also excludes the citizens’ fundamental right to protect themselves. The relative division of governmental powers between the federal and State governments provides no answer to this question at all. And the majority’s premise—that the states’ constitutional power to protect the public was conferred to the exclusion of citizens’ own right to self-defense—is unmoored from the text and structure of the Constitution; contravenes the lessons of Heller; is desperately ahistorical, for reasons already discussed at length; and cannot be squared with the first principles of American popular sovereignty.

III

Accordingly, the majority is wrong to conclude that H.R.S. § 134-9 does not implicate the right to bear arms whatsoever. Because the statute clearly does tread upon conduct protected by the Second Amendment, the next step must be to analyze it under an “appropriate level of scrutiny.” Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). In the framework developed by our court following Heller, the first question in determining the appropriate level of scrutiny is this: Does the right of an ordinary citizen to bear arms openly in public for purposes of self-defense fall within the “core” of the Second Amendment—or does it lie somewhere else, at the periphery of the Amendment’s guarantees? See id. at 960–61.

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The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right. At the risk of repeating myself (though it does, apparently, bear repeating), the Second Amendment safeguards both the right to keep a firearm and the right to bear—or to carry—that firearm. Neither the text of the Amendment nor its historical interpretations suggests that either right has priority over the other. The obvious inference one should draw is that there is no pecking order between the “core” status of the Amendment’s expressly enumerated guarantees.^[16] The right to armed self-defense—both by keeping a gun at home and by carrying one elsewhere—lies at the heart of the Second Amendment.

Indeed, Heller made clear that the “central” purpose undergirding the Second Amendment is “the inherent right of self-defense.” 554 U.S. at 628; see also id. at 599 (describing self-defense as “the central component of the right itself”). This is why, for instance, it was particularly troubling to the Court in Heller that the District of Columbia had banned handguns—“an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose [of self- defense].” Id. at 628. To be sure, Heller addressed the application of this right to the home—and necessarily so, given that the case involved specifically a challenge to a ban

16 By way of (illustrative) comparison, courts have been more willing to consider the non-“core” status of gun rights other than the expressly enumerated rights to “keep” (i.e., to possess) and to “bear” (i.e., to carry) arms, such as the rights to sell certain firearms, or to manufacture firearms with or without certain features. See, e.g., Pena v. Lindley, 898 F.3d 969, 1009 (9th Cir. 2018) (Bybee, J., concurring in part and dissenting in part); United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010).

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on handgun possession in the home. See id. at 575–76; see also Drake, 724 F.3d at 445 (Hardiman, J., dissenting). But nothing in Heller remotely suggests that the core “inherent right of self-defense” was understood to stop at the walls of one’s home. Rather, Heller’s (and subsequently McDonald’s) language suggests exactly the opposite, as it addresses the application of the right of self-defense to the home in comparative terms. In these cases, the Court described the “need for defense of self, family, and property” as “most acute” within the home, Heller, 554 U.S. at 628 (emphasis added), or “most notabl[e]” there, McDonald, 561 U.S. at 780 (plurality op.) (emphasis added)—suggesting of course that this same core right was felt (even if perhaps less “acutely”) elsewhere.

More fundamentally, a great deal of Heller’s analysis reflects an abiding concern for the inherent right to defend one’s person, not just one’s home. For example, the Court cited (without reference to the home) “at least seven [state constitutional provisions that] unequivocally protected an individual citizen’s right to self-defense,” which is “strong evidence that that is how the founding generation conceived of the right.” 554 U.S. at 603. Also without any reference to the home, Heller noted that “[a]ntislavery advocates routinely invoked the right to bear arms for self-defense.” Id. at 609. Charles Sumner’s famous “Bleeding Kansas” speech, quoted at length in Heller, can hardly be read without sensing its vociferous declaration that the Second Amendment’s core reaches self-defense on the wide open spaces of the American frontier: “Never was this efficient weapon [the rifle] more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached.” Id. (quoting Charles Sumner, The Crime Against Kansas,

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May 19–20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606–07 (T. Widmer ed. 2006)); see also McDonald, 561 U.S. at 775 (“[O]ne of the ‘core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to . . . affirm the full and equal right of every citizen to self-defense.’” (quoting Amar, Bill of Rights, supra, at 264–65)).

Perhaps most tellingly, the Court in Heller ultimately likened the constitutional repugnance of restrictions on keeping arms inside the home with that of restrictions on bearing arms outside the home. In striking down the District of Columbia’s ban on handgun possession in the home, Heller observed that the only restrictions that had historically “come close” to such a “severe” measure were laws that unconstitutionally restricted the open carry of firearms outside the home in some states. 554 U.S. at 629 (citing Nunn, 1 Ga. at 251; Andrews, 50 Tenn. (3 Heisk.) at 187; Reid, 1 Ala. at 616–17).

Thus, there can be no avoiding Heller’s—and McDonald’s—admonition that the Second Amendment guarantees the individual right “to use handguns for the core lawful purpose of self-defense.” McDonald, 561 U.S. at 768 (quoting Heller, 554 U.S. at 630 (alteration omitted)); see also Wrenn, 864 F.3d at 659 (“Whatever motivated the Amendment, at its core was the right to self-defense.”). In turn, there can be no support for a cramped reading of the Second Amendment that renders to “keep” and to “bear” unequal guarantees. As recounted at length above, both the text of the Amendment and the relevant historical sources confirm this understanding. The right to carry a firearm openly for self-defense falls within the core of the Second Amendment.

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IV

Because the right to carry a handgun openly for self- defense lies within the “core” of the Second Amendment, Hawaii faces a steep burden in its attempt to justify the constitutionality of section 134-9. Under our court’s framework, if Hawaii’s law “amounts to a destruction” of the core right, it must be held “unconstitutional under any level of scrutiny.” Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). And if it severely burdens (but does not destroy) the core right, it still “warrants strict scrutiny.” Id.

Though it is doubtful whether Hawaii could prevail under either standard, the unavoidable reality is that Hawaii’s severe deprivation of the core right to carry a firearm in public can only be understood as amounting to a total destruction of such right. It is thus necessarily unconstitutional.

A

Section 134-9 limits the open carry of firearms to people “engaged in the protection of life and property,” H.R.S. § 134-9(a), i.e., “private detectives and security guards,” as defined by the County of Hawaii’s implementing regulations, see Police Dep’t of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses to Carry Concealed and Unconcealed Weapons 1 (Oct. ^[22], 1997). Even those lucky few may carry firearms only when “in the actual performance of [their] duties.” Id. at 10. There can be little question that the core Second Amendment rights of Hawaii residents are effectively destroyed by such severe restrictions on who may openly carry a firearm.

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Because the Second Amendment protects the right of individuals, not groups of individuals, to keep and to bear arms, Heller, 554 U.S. at 595, the relevant question is the extent to which a law restrains the rights of a typical, law- abiding citizen. Wrenn, 864 F.3d at 665 (“[I]f the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class.”). And section 134-9 all but eliminates the right to open carry for such citizens. To restrict open carry to those whose job entails protecting life or property is, necessarily, to restrict open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only as an on-duty militia member, it surely does not protect a right to bear arms only as an on-duty security guard. The typical, law-abiding citizen in the State of Hawaii is therefore all but foreclosed from exercising the core Second Amendment right to bear unconcealed arms for self- defense.

It follows that section 134-9, by its own terms, “amounts to a destruction” of a core right and is therefore infirm “[u]nder any of the standards of scrutiny.” See Heller, 554 U.S. at 628–29. The County may not constitutionally enforce section 134-9’s limitation on the open carry of firearms to those “engaged in the protection of life and property.”

Hawaii resists this conclusion by arguing that section 134- 9 does not in fact limit open carry to security guards and those similarly employed. Rather, Hawaii insists that “a private individual may be ‘engaged in the protection of life and property,’ even when it is not part of her job”—and thus the statute is open to everyone, at least in appropriate circumstances. In a vacuum, that might be a perfectly plausible—even natural—way to read the words in the

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statute. But in the real world, it is not how the State of Hawaii or its constituent counties have actually interpreted and applied section 134-9.

Counsel for the County acknowledged as much at oral argument before the three-judge panel in this case, stating that, to his knowledge, no one other than a security guard—or someone similarly employed—had ever been issued an open- carry license. Hawaii’s Attorney General, in a September 2018 Opinion Letter on this very subject, likewise failed to provide evidence that any of Hawaii’s counties had ever issued an open-carry permit to even a single person not employed in the security profession. See generally State of Haw., Dep’t of Att’y Gen., Opinion Letter No. 18-1, Availability of Unconcealed-Carry Licenses (Sept. ^[11], 2018) [hereinafter Opinion Letter 18-1]. And the State has not shown that it has taken any action to remedy the putatively “incorrect” interpretation of section 134-9 that continues to be enforced in Hawaii County and throughout the state. Indeed, it appears that no carry licenses have been issued to private, non-security guard citizens anywhere in the State since the issuance of the State’s 2018 Opinion Letter. See State of Haw., Dep’t of Att’y Gen., Firearm Registrations in Hawaii, 2019, at 9 (Mar. 2020), https://ag.hawaii.gov/cpja/files/2020/03/Firearm- Registrations-in-Hawaii-2019.pdf; State of Haw., Dep’t of Att’y Gen., Firearm Registrations in Hawaii, 2018, at 9 (May 2019), https://ag.hawaii.gov/cpja/files/2019/05/Firearm- Registrations-in-Hawaii-2018.pdf.

In the County of Hawaii, the historical dearth of open- carry permits for private citizens is no mere “pattern or practice.” It is a matter of official policy. Again, in its 1997 regulations implementing section 134-9’s open-carry

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permitting regime, the County created an application process that is open only to “private detectives and security guards.” Police Dep’t of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses to Carry Concealed and Unconcealed Weapons 1 (Oct. ^[22], 1997).17 Although the County now asserts that it does not “understand” the regulation to limit carry permits to such individuals, its 1997 Police Department regulation remains on the books. Further, as Young rightly notes, “[t]he County of Hawaii . . . has not [since] issued any new regulations or even created an application form for private citizens.”

B

In the face of this damning factual record, both Hawaii and the majority urge that we should simply look the other way.

No thanks!

For its part, Hawaii argues that its actual enforcement of the statute is irrelevant because “the meaning of a state statute is determined by its text, not by how a local government supposedly applies it.” The case Hawaii cites for that contention, however, is wholly inapposite. In the cited passage, the Hawaii Supreme Court simply recited the

17 Whereas the State now seeks to create ambiguity about whether its statute limits open carry to security guards and those similarly employed, there can be no such ambiguity that the County’s 1997 regulation does exactly that. Accordingly, such a regulation is unconstitutional in its own right.

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anodyne administrative-law maxim that when a court conducts de novo review of an agency’s statutory construction, “the fundamental starting point for statutory interpretation is the language of the statute itself.” Del Monte Fresh Produce (Haw.), Inc. v. Int’l Longshore & Warehouse Union, Local 142, 146 P.3d 1066, 1076 (Haw. 2006) (internal quotation marks omitted). But ours is not an administrative- law case; it is a challenge to the constitutionality of Hawaii’s severe restrictions on the right of individuals to carry firearms in public. The pertinent question is not whether the County’s interpretation of H.R.S. § 134-9 is adequately faithful to the statutory text. Rather, the question is whether Hawaii’s restrictions on open public carry are adequately faithful to the Second Amendment. And enforcement history illuminates whether the State’s statute and the County’s regulation are laws “which, under the pretence of regulating, amount[] to a destruction of the right.” Jackson, 746 F.3d at 960 (quoting Heller, 554 U.S. at 629).

Similarly, the majority contends that we may not consider the enforcement history of H.R.S. § 134-9 because Young has supposedly forfeited any as-applied challenge to the statute, limiting our review “to the text of the statute itself.” See Maj. Op. 25–31. This is simply wrong—and for several reasons.

For starters, the majority’s premise that Young’s complaint outlined only a “facial” challenge to the statute is dubious. Young’s complaint challenged far more than the theoretical facial validity of section 134-9. Unlike in many facial challenges, here section 134-9 has actually been enforced against Young, and he claims that such enforcement—i.e., the denial of his applications for an open-

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carry permit—violated the Second Amendment. Indeed, Young alleged that his Second Amendment rights had been violated by the “[c]ombined” statutes, regulations, and actions of “the State of Hawaii, County of Hawaii[,] and the Hawaii County Police Department and its Chief of Police.” More specifically, he alleged that the County had unconstitutionally denied his permit applications even though they “stat[ed] the purpose being for personal security, self- preservation and defense,” and he contended that carry permits had been made available only to those who were “employed by a licensed private security company.”18 Thus, unlike a stereotypical facial challenge, Young’s claim does not “rest on speculation” about how the statute might be enforced, nor does it ask our court to “short circuit” the State’s “opportunity to implement [the statute] . . . [and] to construe the law in the context of actual disputes.” See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008). Young’s very point is that the State and County have construed and implemented the statute—against him—in a way that is unconstitutional.

18 The majority’s assertion that “Young did not set out [an as-applied] claim as an issue before our court in his panel appeal,” Maj. Op. ^[28], is even more inaccurate. Young’s opening brief, filed in 2013, plainly states: “[Hawaii County Police] Chief Kubojiri’s failure to adopt policies which comport with constitutional guidelines has resulted in HRS § 134-9, as applied to Mr. Young, to be an unconstitutional deprivation of his constitutional rights. In the alternative, if no guidelines could make the statute constitutional then it is unconstitutional on its face.” And it is of no moment that the panel opinion referred to “several . . . arguments” that Young had abandoned or waived on appeal. Id. (quoting Young, 896 F.3d at 1050 n.3). The panel expressly listed those claims that Young had forfeited; Young’s as-applied challenge to Hawaii’s restrictions on his ability to carry a handgun openly was not one of them. See Young, 896 F.3d at 1050 n.3. 188 YOUNG V. STATE OF HAWAII Further, we cannot lose sight of the fact that Young filed his complaint pro se—and, as the Supreme Court has instructed, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citations omitted). Here, Young’s pro se complaint stated clearly, if inartfully, his theory that his Second Amendment rights were violated by the combined effects of H.R.S. § 134-9 and the County’s actual enforcement thereof. Such a claim is clearly sufficient to put the State and County’s record of enforcement of section 134- 9 at issue. More fundamentally, the majority’s contrary conclusion relies on the erroneous notion that there is a bright-line categorical distinction between facial and as-applied challenges. The Supreme Court has cautioned that “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. The distinction . . . goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010) (emphasis added); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1128 (2019) (“The line between facial and as-applied challenges can sometimes prove ‘amorphous’ and ‘not so well defined.’” (citations omitted)); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1324 (2000) (“[T]here is no single distinctive category of facial, as opposed to as-applied, litigation. Rather, all challenges to statutes arise when a particular litigant YOUNG V. STATE OF HAWAII 189 claims that a statute cannot be enforced against her. . . . [I]t is more misleading than informative to suggest that ‘facial challenges’ constitute a distinct category of constitutional litigation.”). Indeed, whether a constitutional challenge is described as “facial” or “as-applied” “does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Bucklew, 139 S. Ct. at 1127 (emphasis added). And, at least in the First Amendment context—which guides our analysis of “the extent to which a challenged prohibition burdens the Second Amendment right,” Jackson, 746 F.3d at 961—even where the bare text of a statute is theoretically capable of competing constructions, we analyze a “facial” attack to the statute in light of how it has actually been interpreted and applied. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (“In evaluating [a] facial challenge, we must consider the county’s authoritative constructions of the ordinance, including its own implementation and interpretation of it.”); Gooding v. Wilson, 405 U.S. 518, 524 (1972). Regardless of its particular phrasing, the essence of Young’s claim is unquestioned: He contends that the State and County of Hawaii have enacted and enforced against him sweeping prohibitions on ordinary, non-security-guard citizens’ right to carry a firearm openly in public, in violation of the Second Amendment. That claim necessarily questions not only the nature of the statute that Hawaii enacted but moreover how that statute has been interpreted and enforced by the responsible government officials. And our analysis of such a claim surely does not turn on which ill-defined label one might now attach to it. Cf. Bucklew, 139 S. Ct. at 1128 (“To hold now, for the first time, that choosing a label changes the meaning of the Constitution would only guarantee a good deal of litigation over labels, with lawyers 190 YOUNG V. STATE OF HAWAII on each side seeking to classify cases to maximize their tactical advantage.”). C So, at least as informed by the draconian enforcement history of section 134-9, such law unquestionably destroys ordinary Hawaiians’ freedom to carry a handgun for self- defense in public. But that understates the point. For even if we chose to ignore the enforcement history showing that the County has never issued an open-carry permit to a non- security-guard citizen, section 134-9 would still be unconstitutional on its terms. The Second Amendment protects “the right of the people to keep and bear Arms”—not the right of a select group of “exceptional” people to keep and bear arms. U.S. Const. amend. II (emphasis added). And in Heller, the Court left no doubt that “the people” refers to “all Americans.” 554 U.S. at 580–81. “[I]f the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class.” Wrenn, 864 F.3d at 665. Indeed, although “certain weapons or activities [may] fall outside the scope of the” Second Amendment, “certain people” do not. Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting). Thus, for Hawaii’s measure to be constitutional, at the very least, it must not destroy the right of the typical, law abiding citizen to carry a gun in public for self-defense. By its very terms, section 134-9 plainly does just that—and does so even if we set aside its requirement that firearms carriers be “engaged in the protection of life and property.” The language of the statute allows only those individuals who can YOUNG V. STATE OF HAWAII 191 show “an exceptional case” or special “urgency” to be eligible to carry a gun. H.R.S. § 134-9(a).19 The Hawaii Attorney General’s 2018 Opinion Letter only exacerbated this 19 To be sure, Hawaii argues—and the majority intimates—that history countenances such an approach. Young’s interest in self-defense, they say, is merely “generalized,” whereas the Second Amendment and its English forbearers protected a right to open carry only in service of a “particularized” need for self-defense. See Maj. Op. 54–55. This putative distinction, however, proves specious. For example, the majority accepts the invitation of Hawaii’s en banc brief to read Lord Coke as advocating the proposition “that the law did not allow public carry merely ‘for doubt of danger.’” See id. at 54–55; Edward Coke, The Third Part of the Institutes of the Laws of England 161 (London, R. Brooke 1797). But what Hawaii would pass off as a general maxim of English law is in fact a comment on the very particular and unusual case of Sir Thomas Figett. There, “doubt of danger” was held an insufficient defense for Figett’s going armed “in the palace,” and “before the justice[s] of the kings bench.” Coke, supra, at 161–62 (emphasis added). Ironically enough, Figett did assert a “particularized” threat in seeking to justify his carrying of a weapon, stating that he had concrete reason to fear an attack from one “Sir John Trevet knight.” Id. The failure of Figett’s defense, then, had nothing to do with how “generalized” or “particularized” his interests in self-defense were, and everything to do with the fact that he had gone armed in uniquely “sensitive places” where carry was categorically prohibited. Cf. Heller, 554 U.S. at 626. Similarly, the majority reads Serjeant Hawkins as “recogniz[ing] that the . . . . desire for proactive self-defense was not a good enough reason to go armed openly.” Maj. Op. 54. Yet this contradicts what Hawkins actually wrote. In the treatise relied upon by Hawaii and the majority, he expressly clarified that “no wearing of Arms is within the meaning of th[e] Statute [of Northampton],” even if “it be accompanied with such Circumstances as are apt to terrify the People,” so long as one had “arm[ed] himself to suppress Rioters, Rebels, or Enemies” or “upon a Cry made for Arms to keep the Peace.” Hawkins, supra, at 136 §§ 9–10. That is to say, Hawkins placed “generalized” and “particularized” interests in self-defense on equal footing. 192 YOUNG V. STATE OF HAWAII problem by offering “illustrative examples” of classes of persons whom the Attorney General “believe[s] . . . could present a sufficient urgency or need for protection under the statute,” such as political activists, state’s witnesses, private security guards, psychiatrists, physicians, attorneys, business owners, entertainers, and bank employees. See Opinion Letter 18-1, supra, at 8–9. But no matter the particular categories of people who fall in or out of the State and County’s favor, Hawaii’s statute necessarily destroys the right to carry a firearm for self-defense for all “typical . . . law-abiding citizens” who are not deemed to be “exceptional.” Wrenn, 864 F.3d at 665. That would be no less true if we were to set aside the ample factual record showing that Hawaii has also further extinguished the public-carry rights of those who are not security guards. In short, no matter how much one cares to look to H.R.S. § 134-9’s troubling and well-documented enforcement history, we cannot escape the conclusion that it is “unconstitutional under any level of scrutiny.” Jackson, 746 F.3d at 961. V The Second Amendment’s text, history, and structure—as interpreted in light of the Supreme Court’s binding precedents—all converge on an unequivocal conclusion: At its core, the Second Amendment protects the ordinary, law- abiding citizen’s right to carry a handgun openly for purposes of self-defense outside the home. Despite an exhaustive historical account, the majority has unearthed nothing to disturb this conclusion. At most, and after great length, the majority arrives at the unexceptional YOUNG V. STATE OF HAWAII 193 observation that the lawful manner of open carry has historically been regulated in varying and limited ways (for example, by prescribing particularly dangerous guns that may not be carried or particularly sensitive places into which guns may not be carried). But nothing in the history—both by my own read and as reported by the majority itself—suggests that the mere presence of some regulation of open carry was understood to negate the underlying status of the right to open carry, or to mean that such right could be altogether extinguished for the typical law-abiding citizen. The majority cites nothing that could justify such an extravagant interpretation of the record of gun regulation in this country, and I do not share the majority’s eagerness to impart one by ipse dixit. Most alarming is the conjunction of today’s holding and our court’s earlier holding that the concealed carry of firearms in public is not protected by the Second Amendment “in any degree.” See Peruta v. County of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc). For the more than 60 million people within the nine western states of this circuit, the combined effect of these two opinions is to remove all forms of public carry—whether open or concealed—from the protections of the Second Amendment. In so doing, our circuit has not merely demoted “the right of the people to . . . bear Arms,” U.S. Const. amend. II, to the status of “a second- class right” but has extinguished its status as a right altogether. See McDonald, 561 U.S. at 780 (plurality op.). It is no badge of honor that we now become the first and only court of appeals to do so. Accordingly, and for the reasons expressed above, I would hold that both H.R.S. § 134-9 and the 1997 County regulation destroy the core right to carry a gun for self- 194 YOUNG V. STATE OF HAWAII defense outside the home and are “unconstitutional under any level of scrutiny.” Jackson, 746 F.3d at 961.20 To be sure, I do not reach this conclusion without appreciation for the real and serious problem of gun violence—a problem which I do not take lightly, and which the State of Hawaii “has understandably sought to fight . . . with every legal tool at its disposal.” Wrenn, 864 F.3d at 667. And nothing in my analysis would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State with “a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.” Heller, 554 U.S. at 636. Yet, for better or for worse, the Second Amendment does protect a right to carry a firearm openly for self-defense in public—and Hawaii’s near complete ban on the open carry of handguns cannot stand. I cannot join an opinion that would flout the Constitution by holding, in effect, that “in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.” Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. I most respectfully dissent. 20 Because I would reverse the district court on Second Amendment grounds, I would decline to reach Young’s prior-restraint and due-process claims. YOUNG V. STATE OF HAWAII 195 R. NELSON, Circuit Judge, with whom CALLAHAN and IKUTA, Circuit Judges, join, dissenting: I concur with Judge O’Scannlain’s dissent concluding that Hawaii Revised Statute 134-9 violates the Second Amendment. If the statute is facially unconstitutional, it is also unconstitutional as-applied. See, e.g., Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1207 n.1 (9th Cir. 2010). The majority, however, errs not only in holding the statute facially constitutional, but also in rejecting Young’s as-applied challenge. See Hargis v. Foster, 312 F.3d 404, 410, 412 (9th Cir. 2002) (noting the “inquiry does not end with [a] facial analysis” and reversing and remanding on the as-applied challenge). The majority summarily dismisses Young’s Second Amendment as-applied claim with far less respect than we have given other constitutional claims. See McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion) (recognizing the Second Amendment is not a “second-class” constitutional right). Indeed, the majority’s holding that Young failed to plead an as-applied challenge may be its longest lasting legacy, as it effectively reverses several of our prior cases. It will preclude a host of future as-applied constitutional challenges under the First, Fourth, Fifth, and Eighth Amendments previously recognized by this court—especially for pro se civil rights plaintiffs. The majority should have at least remanded for the district court to address Young’s as-applied challenge or allow him to amend his complaint. I also write separately to highlight the brazenly unconstitutional County of Hawaii (“County”) Regulations applying H.R.S. § 134-9. There should be no dispute that any 196 YOUNG V. STATE OF HAWAII law or regulation that restricts gun ownership only to security guards violates the Second Amendment. The County Regulations squarely present this issue. But the majority sidesteps it relying on a theory never briefed by the parties and not supported by Hawaii precedent. Because the County Regulations were the operative basis for denying Young a permit and remain legally enforceable, Young should be allowed on remand to challenge his denial under H.R.S. § 134-9. Accordingly, I respectfully dissent. I Young brought both a facial and an as-applied challenge to H.R.S. § 134-9 and the County Regulations. He sought general relief—asking to strike down the statute—but also personal relief—requesting to be granted a firearm permit. Moreover, he explicitly preserved his as-applied challenge in his complaint, opposition to the motion to dismiss, and on appeal. The district court erred by dismissing Young’s complaint with prejudice while mischaracterizing his separate as- applied claim and not allowing him to amend his complaint. And the majority errs in concluding Young failed to plead an as-applied challenge. Young’s complaint pleaded that under H.R.S. § 134-9 and the County Regulations he was denied a firearm permit because he was not a security guard. The majority should have, at a minimum, vacated the district court’s order and remanded for the district court to address the as-applied challenge in the first instance or to allow Young to amend his complaint. YOUNG V. STATE OF HAWAII 197 As a threshold matter, Young was pro se when he litigated the motion to dismiss before the district court;1 thus, this court liberally construes his filings. Ross v. Williams, 950 F.3d 1160, 1173 n.19 (9th Cir. 2020) (en banc). “The obligation to construe pro se filings liberally means courts must frequently look to the contents of a pro se filing rather than its form.” Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This obligation to give the pro se complainant “‘the benefit of any doubt’” is heightened “‘particularly in civil rights cases,’” such as this one. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)). This benefit of the doubt applies with even greater force when considering whether a claim raises a facial challenge, an as-applied challenge, or both. See Real v. City of Long Beach, 852 F.3d 929, 934 (9th Cir. 2017) (considering both facial and as-applied challenges even where appellant “did not clearly state to the district court whether his challenge was as-applied or facial”);2 Read v. Haley, 650 F. App’x 492, 494 n.1 (9th Cir. 2016) (“Mindful that we construe pro se pleadings liberally, we view [plaintiff’s] claims as facial attacks that are not barred” even though plaintiff’s “prolix” 1 Young’s counsel appeared on December 21, 2012, after the notice of appeal was filed. ^[2] Indeed, we held the plaintiff in Real, represented by counsel, brought an as-applied challenge though he had never applied for a permit and his complaint never mentioned the words “as-applied.” 852 F.3d at 934 (holding Real had standing to bring an as-applied challenge since he “alleged an intention” to undertake constitutionally protected activity but “ordinances proscribe[d] his intended conduct”). Just like Young, Real stated in his response opposing the motion to dismiss that he brought an as-applied challenge. 198 YOUNG V. STATE OF HAWAII made it “understand[able] why the district court considered his Complaint to assert ‘as applied’ challenges” (emphasis added) (citation omitted)); Morrison v. Peterson, 809 F.3d 1059, 1062 (9th Cir. 2015) (considering both facial and as- applied challenges, though pro se litigant characterized his challenge as only as-applied);3 United States v. Kaczynski, 551 F.3d 1120, 1124 (9th Cir. 2009) (recognizing an as- applied claim even though pro se appellant “characterize[d] his claim as a purely facial legal challenge”); United States v. Kafka, 222 F.3d 1129, 1130 (9th Cir. 2000) (considering an as-applied challenge even where “it [was] unclear whether Kafka [was] making only a facial challenge . . . or whether he [was] also asserting an ‘as applied’ challenge”);4 Asselin v. Santa Clara Cnty., 185 F.3d 865 (9th Cir. 1999) (unpublished) (holding that the “complaint, charitably read, also allege[d] that the County’s policy was unconstitutional as applied” where it asserted that the plaintiff had “merely discussed religion with the minor” and thus the “as-applied challenge [was] entitled to proceed past the pleading stage”). This benefit of the doubt has greater force because “[t]he line between facial and as-applied challenges can sometimes prove ‘amorphous.’” Bucklew v. Precythe, 139 S. Ct. 1112, 3 Morrison’s complaint never used the words “as-applied” or “facial” and included only two sentences that could have raised a facial challenge. In his opposition to the motion to dismiss, Morrison only stated he was challenging the statute as-applied. ^[4] The government’s brief argued that Kafka brought only a facial challenge because “[t]he district court specifically inquired into the Defendant’s wish to present a case purely as a matter of law, or if he wished to make a factual record” and Kafka had “declined to present any facts.” Neither Kafka’s Opening Brief or Reply Brief ever used the words “as-applied.” YOUNG V. STATE OF HAWAII 199 1128 (2019) (quoting Elgin v. Dep’t of Treasury, 567 U.S. ^[1], 15 (2012)). “The label is not what matters.” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (noting whether the words “as-applied” were used in a complaint is not determinative). A claim can “obviously ha[ve] characteristics of both” types of challenges. Id. And “[a]s-applied challenges . . . may be coupled with facial challenges.”5 Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Accordingly, “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). Rather, the “distinction . . . goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Id. (citation omitted). A court should look at the “claim and the relief that would follow” to determine the type of claim brought. See John Doe No. 1, 561 U.S. at 194. And a court should consider different types of challenges as the “exercise of its judicial responsibility” demands. See Citizens United, 558 U.S. at 333. Thus, this court must look to the substance of the complaint and the remedy to identify what type of claims are brought. See Isaacson v. Horne, 716 F.3d 1213, 1230 (9th Cir. 2013). The majority effectively overturns our precedents and ignores Supreme Court direction to establish a new vague standard for pleading an as-applied challenge. See Maj. Op. at 27, 28–30. 5 It is far different when a party, represented by counsel, specifically pleads only a facial challenge and affirmatively disclaims any as-applied challenge. See Calvary Chapel Bible Fellowship v. Cnty. of Riverside, 948 F.3d 1172, 1177 (9th Cir. 2020). 200 YOUNG V. STATE OF HAWAII Under long-standing precedent, there is ample support that Young’s pro se complaint alleges both a facial and an as- applied challenge. Young argues he was denied a permit and that this denial violated his constitutional rights. Crucially, he seeks multiple forms of relief: first, to strike down the statute as part of his facial challenge; and second, to be personally granted a firearm permit as part of his as-applied challenge. See Citizens United, 558 U.S. at 331. Furthermore, he refers to himself and his efforts to gain a firearm permit numerous times throughout the complaint. See Foti, 146 F.3d at 635 (“An as-applied challenge contends that the law is unconstitutional as applied to the litigant’s particular . . . activity.”). As just a few examples, Young alleges: · “Plaintiff, recently, on two occasions . . . applied for a personal permit . . . . On both occasions Plaintiff was denied a permit, by the Defendant Kubojiri, pursuant to H.R.S. 134-9, citing that ‘…only in exceptional cases or a demonstrated urgency…’, which is yet to be defined, the Chief of Police ‘…may grant…’ a permit, subject to his personal opinion.” · “Within the jurisdiction of Hilo County and according to its police administrator, it is a matter of routine procedure that a Concealed Carry Weapons (CCW) permit is not to be issued, but only upon demonstration of an actual menace and subjected to the discretion of the local county Chief of Police.” YOUNG V. STATE OF HAWAII 201 · “Plaintiff is denied and prohibited from exercising his individual second amendment right.” · He suffered “irreparable emotional and physical distress” as a result of the “present enforcement of H.R.S. 134-9 and H.R.S. 134-6.” · “Plaintiff has a clear and unambiguous claim of right to property in the Second Amendment of the Constitution of the United States.” And in his opposition to the motion to dismiss, Young explicitly challenged H.R.S. § 134-9 both “on its face and or the application thereof,” showing his intent to bring both a facial and an as-applied challenge. Young also argues on appeal: · In his 2013 Opening Brief, “Chief Kubojiri’s failure to adopt policies which comport with constitutional guidelines has resulted in HRS §134-9, as applied to Young, to be an unconstitutional deprivation of his constitutional rights.” 6 6 As Judge O’Scannlain notes, the three-judge panel did not find Young forfeited his as-applied challenge. O’Scannlain Dissent at 187 n.18. To the extent that the majority believes otherwise, Maj. Op. at 29–30, “a party does not necessarily forfeit an issue by first raising it” in en banc proceedings. United States v. Hernandez-Estrada, 749 F.3d 1154, 1160 (9th Cir. 2014) (en banc). Indeed, the “exercise” of our “judicial responsibility” dictates considering the as-applied challenge. See 202 YOUNG V. STATE OF HAWAII · “Young challenged the law and regulations both facially and as-applied ‘to the facts of’ his case,” citing Citizens United, 558 U.S. at 331. · “At every stage of the proceedings,” Young, proceeding pro se, raised an as- applied challenge, which has been preserved on appeal. · “Mr. Young’s claim that H.R.S. § 134-9 is unconstitutional both facially and as- applied by the County to Mr. Young.” Young thus “brings a paradigmatic as-applied challenge, arguing that it is unconstitutional to apply the [Hawaii statute and County Regulations] to him because, given all the circumstances, his ability to” exert his Second Amendment rights is “unduly constricted.” Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011). Citizens United, 558 U.S. at 333. Particularly here, since “these arguments are intertwined with the validity of the claim.” Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 996 n.5 (9th Cir. 2007), aff’d, 553 U.S. 591 (2008). Moreover, the majority makes much of the fact that the three-judge panel did not address Young’s as-applied challenge. Maj. Op. at 28. But as the majority acknowledges, since the three-judge panel (rightfully) held the statute to be facially unconstitutional, the statute was “void in toto” and unconstitutional as-applied; thus, there was no need for the three- judge panel to address the as-applied challenge separately. See Maj. Op. at 26–27; Powell’s Books, 622 F.3d at 1207 n.1. YOUNG V. STATE OF HAWAII 203 Despite these plain and consistently detailed allegations and arguments, the majority asserts Young’s as-applied challenge is “[a]t best . . . buried in his complaint and not well pleaded.” Maj. Op. at 28. It holds that Young’s arguments, presented repeatedly throughout Young’s complaint, opposition to the motion to dismiss, and on appeal, are not “specific[] and distinct[]” enough to permit review.^[7] Maj. Op. at 29–30. The majority’s summary conclusion is belied by a plain reading of Young’s complaint and his subsequent filings, as detailed above. And we have in numerous cases addressed as-applied challenges in much thinner vehicles. See, e.g., Real, 852 F.3d at 934; Kaczynski, 551 F.3d at 1124. If nothing else, the fact that Young asked for a specific as- applied remedy in a firearm permit means he more than adequately alleged an as-applied challenge. See Citizens United, 558 U.S. at 331. The majority’s contrary conclusion impermissibly “invites pleading games.” Bucklew, 139 S. Ct. at 1128 (noting it “would only guarantee a good deal of litigation over labels, with lawyers on each side seeking to classify cases to maximize their tactical advantage”). The majority thus offhandedly establishes a new heightened pleading standard for pro se civil rights litigants that is both legally unfounded and practically concerning. Maj. Op. at 29–30. The 35-year old case it cites to support this proposition, Miller v. Fairchild Industries, Inc., involved a represented party’s appellate brief, not a pro se litigant’s 7 The majority also characterizes Young’s pro se civil rights complaint as “lengthy and rambling.” Maj. Op. at 25 n.3. On the one hand, the majority thus criticizes Young’s pro se complaint for his verbose diction, and on the other, the majority faults Young for not alleging enough. Even besides this contradiction, such uncharitable characterizations are unhelpful to resolving this case. 204 YOUNG V. STATE OF HAWAII first un-amended civil rights complaint. 797 F.2d 727, 738 (9th Cir. 1986). Whether this heightened standard might be expected of seasoned counsel, we have never applied it to pro se citizens seeking to vindicate their constitutional rights.^[8] Erickson, 551 U.S. at 94 (“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (internal quotation marks and citations omitted)). In any event, Young’s voluminous as-applied pleadings are far more than the “bare assertion[s]” the majority characterizes them to be. See Maj. Op. at 30. Consider what this holding of the en banc court means: any time a government agency hides behind an opaque policy to deny someone a constitutional right, a pro se litigant is held to some rigorous yet herein undefined pleading standard to even have his challenge considered in the first place. The majority holding thus overrules many prior panel opinions and ignores Supreme Court precedent. If Young’s pleadings here are insufficient even to warrant consideration in deciding a motion to dismiss, then a host of pleadings in our prior cases are now no longer sufficient either. See, e.g., Real, 8 Though the majority pays lip service to the relaxed pro se pleading standard, the majority nevertheless applies Miller’s stringent “specific[] and distinct[]” standard—dealing with a represented party’s appellate brief—to Young’s pro se complaint. Maj. Op. at 28–30. And the majority exacerbates its error by inappositely relying on Greenwood v. F.A.A., where the represented appellant raised an issue “for the first time on appeal.” 28 F.3d 971, 977 (9th Cir. 1994). The majority ignores the consistently detailed allegations in Young’s complaint. Moreover, it also ignores our duty to look at “the breadth of the remedy employed by the Court” as the “exercise of its judicial responsibility” demands. Citizens United, 558 U.S. at 331, 333; see also Isaacson, 716 F.3d at 1230. YOUNG V. STATE OF HAWAII 205 852 F.3d at 934; Kaczynski, 551 F.3d at 1124; supra at 197–98. Indeed, the district court itself recognized that Young challenged the statute as-applied, noting “Plaintiff requests an injunction against the enforcement of HRS Chapter 134.” Young v. Hawaii, 911 F. Supp. 2d 972, 984 (D. Haw. 2012). But the district court “erroneously treated the as-applied challenge brought in this case as a facial challenge,” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009), concluding Young “is actually challenging the constitutional validity of Hawaii’s Firearm Carrying Laws . . . .” Young, 911 F. Supp. 2d at 984. In reality, Young properly pleaded both an as-applied and a facial challenge. The district court erred by dismissing Young’s claim without considering whether he pleaded sufficient facts to support his as-applied challenge. See La. Mun. Police Emps.’ Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (“[C]ourts ruling on a motion to dismiss ‘must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss . . . .’” (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007))). “To the extent that the district court considered [Young’s] complaint to rest on a facial, rather than an as-applied challenge, . . . it erred.” See Hoehne v. Cnty. of San Benito, 870 F.2d 529, 534 (9th Cir. 1989). Moreover, the majority faults Young, a pro se litigant, for not pursuing reconsideration instead of appeal. Maj. Op. at 27. Yet we have never required even a represented party, let alone a pro se party, to seek reconsideration to preserve an argument for appeal. The majority acknowledges that Young was not required to seek reconsideration, but nonetheless 206 YOUNG V. STATE OF HAWAII faults him for choosing to immediately appeal. Maj. Op. at 27 & n.5. The majority punishes Young for asking us to review de novo the district court’s order viewing all allegations in the light most favorable to him, instead of first attempting to convince the district court his case fell under the “highly unusual circumstances” warranting reconsideration. See Guenther v. Lockheed Martin Corp., 972 F.3d 1043, 1058 (9th Cir. 2020) (citation omitted). The majority thus suggests Young should have “relitigate[d] old matters” before appealing, or else risk forfeiting his as-applied challenge. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation omitted). Again, consider what this holding means. A pro se plaintiff repeatedly raises an as-applied challenge in his complaint and opposition to a motion to dismiss; it is recognized by the district court, but then erroneously categorized only as a facial challenge upon final judgment. And we fault the pro se civil rights litigant for immediately appealing the final judgment instead of pursuing reconsideration. The majority’s conclusion lacks both legal authority and equitable justification. Additionally, it is not sensible here to affirm the dismissal of an as-applied challenge that the district court did not address in the first instance.9 This court need only decide that 9 The majority suggests it would “manufacture jurisdictional issues” to remand for the district court to consider the as-applied challenge erroneously labeled as a facial challenge. Maj. Op. at 28 n.6. Not so. Our court has appellate jurisdiction over final judgments of the district court, including ones that “erroneously treated the as-applied challenge brought YOUNG V. STATE OF HAWAII 207 an as-applied challenge was properly raised and should not address whether Young’s complaint met the 12(b)(6) standard in the first instance. See, e.g., CPR for Skid Row v. City of Los Angeles, 779 F.3d 1098, 1111 (9th Cir. 2015); Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t of Health & Hum. Servs., 946 F.3d 1100, 1111 (9th Cir. 2020) (“An appellate court should usually wait for the district court to decide in the first instance.”); Puente Arizona v. Arpaio, 821 F.3d 1098, 1110 (9th Cir. 2016) (remanding for consideration of a pending as-applied challenge which “should be addressed in the first instance by the district court”); Henry v. Cnty. of Shasta, 132 F.3d 512, 522 (9th Cir. 1997), opinion amended on denial of reh’g, 137 F.3d 1372 (9th Cir. 1998) (remanding an as-applied challenge erroneously dismissed by the district court because the challenge “depend[ed] on questions of fact and law . . . that the district court did not address, [and thus] we prefer not to decide it initially on appeal” (citation omitted)). But the majority apparently did reach the issue, holding that Young “never pleaded facts to support an as-applied challenge.” Maj. Op. at 27. The majority’s holding again disregards Supreme Court precedent. Young’s complaint alleged “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) . . . as a facial challenge.” See Stormans, Inc., 586 F.3d at 1140; CPR for Skid Row v. City of Los Angeles, 779 F.3d 1098, 1111 (9th Cir. 2015) (remanding where district court did not address crucial part of as-applied challenge); Foti, 146 F.3d at 635, 640–42 (recognizing plaintiffs’ as- applied challenge even though the district court considered only the facial challenge and expressly declined to consider the as-applied challenge). 208 YOUNG V. STATE OF HAWAII (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Young challenged how the County applied the statute to deny his permit application in June 2012. His allegations were plausible based on the County Regulations and legal grounds as reasonably understood at the time he filed his complaint—alleging he had applied but was not granted a permit because he was not a security guard, as required by the County Regulations. For example, Young: · Challenged the denial of his permit due to the “engaged in the protection of life and property” clause because “as used, [it] implies a person must currently be a member of a law enforcement agency or employed by a private security company, licensed to do business in the State of Hawaii, and engaged in the employment of protecting a paying third party’s life and property.” · Stated that county police have “unbridle[d] discretionary authority to decide whether an applicant possesses an ‘exceptional case’ or ‘sufficient urgency’ to qualify for a permit to carry a concealed or unconcealed firearm, without further identifying the parameters of the additional requirement to the point where Plaintiff knows whether or not he is within the boundaries of the law.” · Argued “since Defendants collectively enforce H.R.S. 134 and 134-9 the irreparable injury claimed was both YOUNG V. STATE OF HAWAII 209 threatened at time of Plaintiff’s filing of complaint and continues to occur in the present instance.” · Questioned “[h]ow does the Hawaii County Chief of Police Harry Kubojiri apply and enforce H.R.S. 134-9?” Young pleaded he met the requirements of H.R.S. § 134-9 in all other respects, including the provision of being “engaged in protection of life and property,” H.R.S. § 134-9, because he “applied for a personal permit, in accordance with Hawaii Revised Statute (H.R.S.) 134-9(a)(c), . . . stating the purpose being for personal security, self-preservation and defense, and protection of personal family members and property.”10 Even under the majority’s view, we should have—at a minimum—remanded to allow Young to amend his complaint. See Fed. R. Civ. P. 15 (courts “should freely give leave [to amend] when justice so requires”). Indeed, Hawaii specifically suggested this court remand to allow Young to amend his complaint. “Rule 15’s policy of favoring amendments to pleadings should be applied with extreme liberality,” Price v. Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000) (internal quotation marks and citation omitted), 10 This court should not decide in the first instance to dismiss Young’s complaint based on a failure to plead according to the non-binding Hawaii Attorney General’s Opinion (“AG Opinion”) issued over six years after his complaint was filed—in response to the panel opinion upholding his facial challenge. Such positions taken purely for the sake of litigation are entitled to little, if any, weight. See Kisor v. Wilkie, 139 S. Ct. 2400, 2417 & n.6 (2019). 210 YOUNG V. STATE OF HAWAII “guided by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or technicalities,” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (internal quotation marks and citation omitted). Thus, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (emphasis added) (internal quotation marks and citations omitted). Indeed, a “pro se litigant [is] entitled to procedural protections, including [the] right to amend [a] complaint unless futile.” Eldridge, 832 F.2d at 1136 (emphasis added) (citation omitted); see also Houghton v. South, 865 F.2d 264 (9th Cir. 1988) (unpublished) (holding that the “policy of liberality under Rule 15 for pro se plaintiffs” means “the district court should have allowed Houghton to supplement his complaint . . . on remand from the first appeal” to “allege[] an ‘as applied’ challenge”). Remand is particularly warranted here since Young has challenged the operative County Regulations. Given the changed legal circumstances, including Hawaii’s recent AG Opinion, Young is more than entitled to amend his complaint. Young’s as-applied challenge should not have been ignored by the district court or the majority to “foreclose a future as applied challenge.”11 See Nordyke v. King, 319 F.3d 11 Without remand, Young could suffer claim or issue preclusion if this court affirms the dismissal of his complaint with prejudice. See Littlejohn v. United States, 321 F.3d 915, 919–20 (9th Cir. 2003) (“Claim preclusion prevents the relitigation of claims previously tried and decided.” (citation omitted)); Scafidi v. Las Vegas Metro. Police Dep’t, YOUNG V. STATE OF HAWAII 211 1185, 1190 n.3 (9th Cir. 2003). Indeed, the First, Third, Fourth, Seventh, Eighth, and D.C. Circuits have held that a litigant may be able to raise an as-applied challenge even to presumptively lawful firearms prohibitions. Binderup v. Att’y Gen. U.S., 836 F.3d 336, 343–48 (3d Cir. 2016) (en banc); Schrader v. Holder, 704 F.3d 980, 988–89 (D.C. Cir. 2013); United States v. Moore, 666 F.3d 313, 316–17 (4th Cir. 2012); United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011); United States v. Williams, 616 F.3d 685, 691–92 (7th Cir. 2010); see also United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014) (hearing as-applied challenge to § 922(g)(1) but not mentioning Heller). The district court’s failure to consider the as-applied challenge separately, even after dismissing the facial challenge, was error. The majority compounds this error by refusing to remand the case to allow consideration—or amendment—of an as-applied challenge. See Norse v. City of Santa Cruz, 629 F.3d 966, 970 (9th Cir. 2010) (en banc) (noting we have rejected a facial challenge but remanded the as-applied challenge); Menotti v. City of Seattle, 409 F.3d 1113, 1156 (9th Cir. 2005) (rejecting the facial challenges but reversing and remanding the as-applied challenge). In doing so, the majority errs by not “exercis[ing] . . . its judicial 966 F.3d 960, 963 (9th Cir. 2020) (“Issue preclusion, or collateral estoppel, bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment.” (internal quotation marks and citations omitted)). Thus, it is unclear whether he could bring his complaint anew given the current disposition of the case. See Outdoor Media Dimensions Inc. v. Crunican, 202 F.3d 278 (9th Cir. 1999) (unpublished) (affirming a facial challenge but “remand[ing] so that the judgment can be amended to state that it is without prejudice as to an ‘as applied challenge’”). 212 YOUNG V. STATE OF HAWAII responsibility” and considering the as-applied challenge. See Citizens United, 558 U.S. at 333. II Though consideration of the as-applied challenge is better left to the district court, the plain unconstitutionality of the County Regulations governing Young’s application for a firearm permit warrants mention. In 1997, the County promulgated its Regulations governing its issuance of firearm licenses under H.R.S. § 134-9. Police Dep’t of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct. ^[22], 1997). Hawaii does not dispute that the County Regulations remain on the books. The County may choose to enforce them at any time. Hawaii’s counsel at en banc oral argument argued the AG Opinion (issued six years after Young filed his complaint) controls to the extent the County Regulations are inconsistent with the AG Opinion. And Hawaii asserts that this court should defer to the County’s interpretation of its own Regulations. There has been no preemption under Hawaii state law here and the non-binding AG Opinion does not control, despite the majority’s suggestion to the contrary. Contra Maj. Op. at 19–22. “[A] municipal ordinance may be preempted pursuant to HRS § 46–1.5(13) if (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.” Richardson v. City & Cnty. of Honolulu, 868 P.2d 1193, 1209 (Haw. 1994). There is no express preemption clause in the state statute at issue here, nor any YOUNG V. STATE OF HAWAII 213 clear intent to preempt regulations such as the County’s. See generally H.R.S. § 134 et seq.; see also Syngenta Seeds, Inc. v. Cnty. of Kauai, 842 F.3d 669, 675 (9th Cir. 2016) (“[T]he Hawaii Supreme Court has presumed that a county’s exercise of police power is within its delegated authority so long as the legislature did not ‘clearly intend[ ] to preempt the field of regulation.’” (quoting Haw. Gov’t Employees’ Ass’n v. Maui, 576 P.2d 1029, 1038 (Haw. 1978))). The parties do not argue such preemption exists either.12 And because the AG Opinion is legally non-binding, it cannot preempt the County Regulations as “state law.” See Cedar Shake & Shingle Bureau v. City of Los Angeles, 997 F.2d 620, 625–26 (9th Cir. 1993). Furthermore, deferring to the County’s interpretation of its own Regulations advanced in its amicus brief is not warranted under the “limits inherent” in administrative law doctrine. See Kisor, 139 S. Ct. at 2415. Deference is proper only when an agency’s interpretation of its own regulations survives a gauntlet of conditions. First, the regulations must be “genuinely ambiguous.” Id. (citations omitted). Second, 12 Hawaii did not address this position in any of its briefs; it merely stated in response to questioning at oral argument that the County Regulations are inconsistent with the AG Opinion’s reading of the statute. It did not specify whether or how supposed inconsistency with a non- binding legal opinion meets the preemption requirements under H.R.S § 46–1.5(13). In any event, arguments regarding statutory questions “raised for the first time at oral argument” are waived. Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 n.4 (9th Cir. 2016). “That course seems doubly wise because, based on oral argument, it appears that the government knew of this potential argument, but may have deliberately chosen not to raise it.” Ctr. for Investigative Reporting v. United States Dep’t of Justice, 982 F.3d 668, 686 (9th Cir. 2020). 214 YOUNG V. STATE OF HAWAII the agency’s interpretation must be “reasonable.” Id. (citation omitted). Third, “a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416 (citations omitted). Fourth, “the agency’s interpretation must in some way implicate its substantive expertise.” Id. at 2417. “Finally, an agency’s reading of a rule must reflect fair and considered judgment . . . .” Id. (internal quotation marks and citations omitted). An interpretation that is a “convenient litigating position” or a “post hoc rationalizatio[n]” does not merit deference. Id. (internal quotation marks and citation omitted). “The general rule, then, is not to give deference to agency interpretations advanced for the first time in legal briefs.” Id. at 2417 n.6 (citation omitted). The County’s interpretation does not meet any of these requirements. Thus, the County’s interpretation, “advanced for the first time” in its amicus brief, is not worthy of any deference. See id.; Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155–56 (2012). An independent review of how the County Regulations have “been interpreted and applied by local officials” demonstrates the County unconstitutionally enforces H.R.S. § 134-9 through its Regulations. See Calvary Chapel, 948 F.3d at 1177. The County Regulations were promulgated to govern “the granting of authorization for the carrying of weapons as provided by section 134-9, Hawaii Revised Statutes.” And the County Regulations’ title, “Rules and Regulations Governing the Carrying of Concealed Weapons and the Carrying of Weapons by Private Detectives and Security Guards,” explicitly applies H.R.S. § 134-9 only to certain occupations. Under the County Regulations, then, open carry is proper only when the license-holder is “in the actual performance of his duties or within the area of his YOUNG V. STATE OF HAWAII 215 assignment.”13 The Second Amendment “surely does not protect a right to bear arms only as a security guard.” Young v. Hawaii, 896 F.3d 1044, 1071 (9th Cir. 2018), reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019). Thus, the County Regulations are “infirm [u]nder any of the standards of scrutiny.” Id. (internal quotation marks and citation omitted). The County Regulations are facially unconstitutional, and Young alleges they have been unconstitutionally applied to deny him a permit under H.R.S. § 134-9. The majority’s failure to grapple with the County Regulations in any meaningful way suggests an unwillingness to apply the Second Amendment with the respect it deserves. III Even if the Hawaii statute were facially constitutional as the majority holds, Young’s challenge should be remanded to address or develop the as-applied challenge. Therefore, I respectfully dissent. ^[13] Hawaii defends the County Regulations only with a conclusory assertion that the “regulation does not limit open-carry licenses to security guards,” because “[t]he language of the County’s regulation mirrors the language of the state statute.” This interpretation is flatly contradicted by the plain language of the County Regulations. The statute does not include the regulatory language cited here, nor is the phrase “security guards” included in the statute’s title, as it is in the County Regulations’ title.