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 YOUNG V. STATE OF HAWAII 3

SUMMARY*

Civil Rights

The en banc court affirmed the district court’s dismissal of an action challenging Hawai‘i’s firearm licensing law, Hawai‘i Revised Statutes § 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 historica