Hawaii cannot prevent gun owners from carrying in many public areas — for now

A federal judge has temporarily enjoined Hawaii from enforcing a brand-new law that would block open carrying in public areas, like local beaches.

by Natalie Hanson, Court House News, August 9, 2023

HONOLULU (CN) — For now, Hawaii cannot enforce parts of a new state law that bans firearms in public places — such as on the islands' world-famous beaches, and in restaurants that serve alcohol. 

U.S. District Judge Leslie Kobayashi has ruled to grant a partial temporary restraining order on the ban, after both sides spoke at a July 31 hearing to demand a temporary hold on the law.

“The public has an interest in preventing constitutional violations, and the state has not established a factual basis for the public safety concerns regarding permit-carrying gun owners who wish to exercise their Second Amendment right to carry a firearm in public,” Kobayashi said. 

The case centers on Hawaii’s new law that prohibits carrying a firearm on beaches and in banks, bars and restaurants that serve alcohol. Three Maui residents are suing to block enforcement of the law, claiming that the state — which has long had some of the strictest gun laws in the nation, alongside some of the lowest rates of gun violence — has painted with too broad of a brush in the new ban.

In 2022, Hawaii’s county police chiefs rarely issued permits for carrying guns in public, and owners were only allowed to keep firearms in homes or transport them, unloaded, to shooting ranges, hunting areas and repair shops. Then, the U.S. Supreme Court ruling New York Rifle & Pistol Association Inc. v. Bruen expanded gun rights nationwide.

The plaintiffs in the latest case, Jason Wolford, Alison Wolford, Atom Kasprzycki and Hawaii Firearms Coalition, are not challenging restrictions on carrying guns at bars. But they oppose including family restaurants that serve alcohol and preventing people from carrying weapons while visiting banks at night.

Hawaii Attorney General Anne Lopez vowed to defend the new law, arguing that the interest in protecting public safety strongly weighs against issuing a temporary block because of the dangers firearms present.

Lopez also claimed that the plaintiffs did not file the lawsuit until three weeks after the measure was signed into law, but they responded that they filed eight days before the gun ban became effective.

Kobayashi, a Barack Obama appointee, acknowledged in her 91-page order Tuesday night that an increase in violent crimes involving guns has heightened public concerns about gun safety. 

But she said the “powerful collision between Hawaii officials’ concern for the safety and welfare of its citizens, and the Second and Fourteenth Amendments" protecting an individual’s right to carry a handgun for self-defense are at issue.

“Neither the Supreme Court nor the Ninth Circuit have addressed whether a violation of the Second Amendment ‘unquestionably constitutes irreparable injury,’” Kobayashi wrote. 

The judge said that the plaintiffs established an immediate, irreparable harm because they will still carry permitted firearms in public places and would likely face criminal penalties by doing so.

She only granted parts of the plaintiffs’ motion, placing a temporary hold on the portions of the law prohibiting carrying firearms in public parking areas, beaches, parks and on private properties open to the public. 

Kobayashi said the state failed to show how the law is consistent with the historical tradition of gun regulation. 

She said the Second Amendment guarantees a right to carry a firearm in public but is silent on regulation of firearms on private property. That grants a presumptive right to carry on private property, with exceptions such as if an owner stops people from entering.

“If the government’s capacity to act as a proprietor was a determinative factor in the first step of the analysis, then the fundamental right of public carry — as expressed fully in Bruen — would be jeopardized,” Kobayashi said. 

“Indeed, under such a theory, an argument could be made that the government possesses the unfettered power to restrict public carrying of firearms in many — if not most — public places because it has a proprietary interest in those areas," Kobayashi continued in the order. "Whether the government acted as a proprietor may have been relevant when assessing Second Amendment challenges under a means-end scrutiny test, but it has no place under the first step of the Bruen analysis.”

However, the judge said plaintiffs failed to prove how they will claim violations of some constitutional rights, throwing out their assertion that their First Amendment rights were violated. She said that a business owner like Kasprzycki can choose to allow clients to carry firearms on his business’s property.

“He is not required to say anything,” Kobayashi said. “There is no coercion. There is no specific message plaintiffs must speak.”

She also noted that the state’s failure to provide sufficient evidence on some legal challenges can be remedied, since the litigation is in its early stages. No further hearing date has been set.  

Attorney for the plaintiffs Alan Beck said in an email that “the court faithfully applied Supreme Court precedent and came to the correct result.”

Lopez’s office did not respond to requests for comment before press time.