By: José Niño
Texas has recently joined 21 other states in an amicus brief filed with the U.S. Supreme, in which they are petitioning the court to uphold Hawaii residents’ right to bear arms outside of their homes.
This brief came in response to a Ninth Circuit Court of Appeal's decision in 2020 to keep Hawaii’s ban on citizens’ ability to bear arms outside of their homes.
In addition, the amicus brief is asking the Supreme Court to settle an existing split among federal circuit courts of appeal. In this case, several circuit courts have ruled against the Supreme Court’s landmark District of Columbia v. Heller decision, which ruled that the Second Amendment fully protects an individual’s right to keep arms for self-defense.
Attorneys general in Louisiana, Arizona, and Montana have spearheaded the legal effort to uphold Second Amendment rights in Hawaii.
“One of the highest responsibilities of a state is to safeguard the rights of its citizens,” the states argue in the brief.
The states that filed the brief argue that the right to bear arms as spelled out by the Second Amendment is among the rights a state is responsible for protecting.
“Law-abiding citizens keep firearms for self-protection – both inside and outside of their homes. Amici seek to ensure that their residents will not be deprived of their Second Amendment freedoms,” the parties who filed the brief maintain.
“The plain text of the Second Amendment protects the right to bear arms, not just to keep them,” the brief states. “Yet Hawaii’s firearm carrying regulatory regime functions as an outright ban on the right to carry guns outside the home for most people. It therefore violates the Second Amendment.”
Following the Supreme Court’s landmark decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), “lower courts have applied inconsistent standards in Second Amendment challenges to state firearm restrictions,” the brief contends. “Inconsistent decisions by the lower federal courts have left States uncertain as to the precise boundary between permissible and impermissible restrictions. These inconsistencies have also prevented citizens of amici States from exercising their right to carry and bear arms across State lines.
“The Ninth Circuit’s en banc decision has only made this uncertainty worse by failing to engage with the argument that Hawaii’s licensing scheme effectively amounts to a ban on carrying weapons – not merely a regulation,” the parties who filed the brief continue.
The inconsistent decisions of lower federal courts have propelled these red states to petition the Supreme Court to set a precedent that would decisively resolve this issue.
The First, Seventh, and D.C. circuits have all ruled that the Second Amendment applies to the right to bear arms outside of the home. The Second, Third, and Fourth circuits made rulings that were inconsistent with this principle, however, they did not outright reject it in the manner the Ninth Circuit did.
“The blatant misinterpretation of the Second Amendment by the Ninth Circuit must be remedied,” Texas Attorney General Ken Paxton said. “We are asking for the Court to simply uphold the Second Amendment as it is written. The lower courts have flagrantly disregarded the Supreme Court’s instructions in Heller, leaving the right to bear arms in jeopardy. We must have a clear and concise ruling that protects the Second Amendment from lower courts’ hostility to gun rights to prevent this type of infringement from happening yet again.”
The states that have joined the brief include the following:
Louisiana, Arizona, Montana, Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.
Hawaii is an anti-gun bastion. According to Guns & Ammo magazine’s Best States for Gun Owners rankings, Hawaii is ranked second to last (50th) as one of the most hostile states towards gun owners. Similarly, in Guns & Ammo’s rankings for states most receptive to concealed carry, Hawaii was ranked in last place (51st).
Although the Supreme Court can be hit-and-miss, it’s generally the only hope for blue anti-gun bastions like Hawaii to get some form of pro-gun policies implemented. The only other option is for municipalities with pro-gun constituents to set up their own sanctuary resolutions.
Simply put, there aren’t many options for pro-Second Amendment Hawaiians to change gun policy in their state.
José Niño is a freelance writer based in Austin, Texas. Sign up for his mailing list here. Contact him via Facebook, Twitter, or email him at firstname.lastname@example.org. Get his e-book, The 10 Myths of Gun Control, here.