A coalition of states and anti-gun organizations are working together to have pro-gun victory overturned and retried by the court.
In July, a three-judge panel of the U.S. 9th Circuit said that Hawaii’s restrictions on the open carry of firearms in public were not in line with the Second Amendment. Since then, the state has flexed its legal muscles in an attempt to have the decision stricken and sent before a larger 11-judge en banc panel for a retrial. In the past week, a number of gun control groups and states have signed on to the lawsuit to help Hawaii’s keep its strict limits on the unconcealed carry of firearms in public.
New Jersey Attorney General Gurbir Grewal last Monday filed an amicus brief defending the constitutionality of Hawaii’s law that prevents individuals from carrying a firearm openly in public unless they can demonstrate an individualized need to do so– an ability largely reserved for armed security officers and not the general gun-owning public.
“States have every right under the Constitution to look at the available data and make the tough calls about how to protect their residents from the spread of gun violence,” said Grewal, a recent appointment of New Jersey’s Democratic Gov. Phil Murphy. “That’s not just common sense – it’s the law. And the evidence is clear that when more people carry guns in public, public confrontations get more dangerous, not only for the public but also for our law enforcement officers. Courts have no basis to overrule these careful public safety determinations made by states.”
Joining New Jersey are attorneys general from California, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Rhode Island, Oregon, Virginia, and the District of Columbia.
Besides Grewal’s motion, attorneys for Everytown and Giffords have submitted briefs of their own supporting Hawaii’s strict gun laws. Using a similar argument, the gun control groups hold that the three-judge panel in July got history wrong, and that seven centuries of laws– first Britain as far back as 1328 and then the U.S.– have allowed local government to ban the carry of guns in public. Further, they argue the court misinterpreted Hawaii’s law.
Attorney Simon Frankel, writing for Giffords, warned that the prior court’s “novel and unprecedented holding that the right to carry a loaded firearm openly for self-defense falls within the ‘core’ of the Second Amendment will lead lower courts and states into dangerous and uncharted territory.”
Headquartered in San Francisco, the 9th is the largest of the 13 U.S. courts of appeals, with 29 active judgeships. Due to its size, it is the only appeals court that conducts en banc rehearings with an 11-judge panel, the rest requiring the full roster. A majority of non-recused active judges from the Circuit have to vote to rehear the case, a move that is rarely granted. Regardless of the outcome, a further challenge to the Supreme Court is likely in the case.