Hawaii's ban on guns in 'sensitive places' is unconstitutional: Montana attorney general


Montana Attorney General Austin Knudsen filed an amicus brief on Tuesday against Hawaii's law barring the carrying of firearms in so-called sensitive locations, which include the beach shores of the Aloha State.

The brief obtained exclusively by the Washington Examiner was filed in the U.S. Court of Appeals for the 9th Circuit in Wolford v. Lopez, months after a district court temporarily paused enforcement of Hawaii's law. An eventual 9th Circuit decision in the case would not only affect Hawaii's gun regulation but could have ripple effects across the broad appeals court jurisdiction, which covers seven mainland states including Montana and California, and also covers Alaska.

Seventeen Republican attorneys general, led by Knudsen, say the lower court ruling should be upheld, arguing it is consistent with a new Second Amendment test required by the Supreme Court that weighs whether gun regulations are consistent with the nation's "historical tradition." The new legal framework for gun laws emerged from the Supreme Court's ruling last year in New York State Rifle & Pistol Association v. Bruen, a landmark Second Amendment case.

Knudsen's office argues the district court "correctly held" that Hawaii’s "historical evidence fails to establish an 'enduring American tradition' of restricting the right to carry in public parks, beaches, banks, financial institutions, or bars and restaurants serving alcohol," according to the 31-page brief.

U.S. District Judge Leslie Kobayashi, a Barack Obama appointee, granted a temporary restraining order on Aug. 8 against Hawaii's gun restrictions, finding that the broad scope of the state's new sensitive places restrictions on carrying lacked a basis in the historical tradition of gun regulation. Her ruling was one of several that have reevaluated gun laws across the country in the months since Bruen.

“[T]his Court finds that the balance of the equities and the public interest weigh in favor of issuing" a temporary pause on Hawaii's restrictions, she wrote in Wolford v. Lopez. “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's decision came soon after a panel on the 9th Circuit ruled Hawaii's butterfly knife ban was unconstitutional, marking another blow to Hawaii's strict weapons laws.

In the brief, the 17 attorneys general urge the 9th Circuit to uphold Kobayashi's decision striking down the prohibition on carrying firearms in sensitive places. Knudsen is backed by attorneys general in Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Utah, West Virginia, and Wyoming.

Conversely, 18 Democratic attorneys general led by California Attorney General Rob Bonta filed an opposing brief in the Wolford case last month, arguing the high court's decision in Bruen "acknowledged" the validity of some modern gun restrictions.

"Under Bruen, the Supreme Court acknowledged that states have a right to enact reasonable restrictions to protect communities," Bonta said in an Oct. 14 statement after filing his brief. "We support and recognize states’ authority to enact laws to maintain public safety, including constitutional gun regulations that respond to local needs and concerns.”

In the wake of Bruen, states such as Hawaii, which is known for having some of the country's strictest gun laws, sought to pass legislation that made it easier to obtain a concealed carry permit but designated many locations as "sensitive locations" where carrying is prohibited, such as parks and beaches.

Kevin O'Grady, an attorney for the plaintiff challenging Hawaii's law, told the Washington Examiner that "99% of what was just passed doesn't comply with Bruen."

"We were very specific in what we challenged because we wanted to lay the groundwork. If we're successful here, then we can come back and tear down the rest of it," O'Grady added. The attorney said the case could head to oral arguments as soon as the "spring" and a possible decision could come in the months to follow.

Knudsen's filing comes on the same day the Supreme Court toiled over its latest Second Amendment dispute in United States v. Rahimi. The case was taken by the justices after the Biden administration appealed a U.S. Court of Appeals for the 5th Circuit ruling that declared the federal ban on gun ownership for people under a domestic violence restraining order unconstitutional.

While the Supreme Court justices appeared reluctant to agree with the 5th Circuit's ruling on Tuesday, firearms law experts suggested the court may reverse the appeals court's holding, but only narrowly, so as to maintain Bruen's scope for broader Second Amendment protections for gun owners not subject to such restraining orders.

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