DAVID Y. IGE HOLLY T.

SHIKADA
GOVERNOR ATTORNEY GENERAL

VALERIE M. KATO
STATE OF HAWAII FIRST DEPUTY ATTORNEY GENERAL

DEPARTMENT OF THE ATTORNEY GENERAL

425 QUEEN STREET
HONOLULU, HAWAII 96813
(808) 586-1500

July 7, 2022

The Honorable David Y. Ige

Governor, State of Hawaiʻi
Executive Chambers
State Capitol
Honolulu, Hawaiʻi 96813

RE: Public Carry Licensing Under Hawaiʻi Law Following New

York State Rifle & Pistol Association v. Bruen

Dear Governor Ige:

This letter responds to your request for a formal legal

opinion clarifying the requirements to obtain licenses to carry
firearms under Hawaii’s current statutory regime following the
United States Supreme Courtʻs decision in New York State Rifle &
Pistol Association v. Bruen, No. 20-843.

In Bruen, the U.S. Supreme Court concluded that New Yorkʻs

requirement that applicants demonstrate “proper cause” to obtain
a license to carry a concealed weapon violates the Second and
Fourteenth Amendments. The Court identified Hawaiʻi as one of
six states (seven jurisdictions including the District of
Columbia), that have “may issue” licensing laws like New York’s.
See Bruen, slip op. at 4-6.

The interpretation of state law set forth in this opinion

is based upon the structure and purposes of the relevant
statutory framework, considered in light of our understanding of
state policy and in light of federal constitutional
requirements.

Op. No. 22-02

The Honorable David Y. Ige
July 7, 2022
Page 2

I. ISSUE PRESENTED AND SHORT ANSWER

What requirements apply to applications to carry a firearm

in public under Hawaii’s current statutory regime following the
U.S. Supreme Courtʻs decision in New York State Rifle & Pistol
Association v. Bruen?

Short Answer: Following Bruen, the chiefs of police may not

constitutionally restrict both concealed and unconcealed (open)
carry licenses only to those who demonstrate a “special need.”
Following Bruen, the language in Hawaiʻi Revised Statutes (“HRS”)
§ 134-9 requiring that an applicant “[i]n an exceptional case .
. . show[] reason to fear injury to the applicantʻs person or
property” in order to obtain a concealed carry license should no
longer be enforced. All other statutory requirements for
obtaining a concealed carry license are unaffected by Bruen, and
(except for the citizenship requirement as applied to lawful
permanent residents and U.S. nationals 1) remain in full force and
effect.

Assuming this approach to concealed carry licenses, Bruen

does not require any change to the requirements established
under HRS § 134-9 to obtain an unconcealed carry license. An
applicant for an unconcealed carry license must still
“sufficiently indicate[]” that he or she has an “urgency” or
“need” to carry a firearm and is “engaged in the protection of
life and property,” along with any other statutory requirements
that must be satisfied under Hawaiʻi law to obtain an unconcealed
carry license (except for the citizenship requirement as applied
to lawful permanent residents and U.S. nationals 2). The
standards that the chiefs of police should apply in considering
applications for unconcealed carry licenses are discussed in
Attorney General Opinion No. 18-1.

II. DISCUSSION

Hawaiʻi law – in recognition of the potential risks to

public safety – has imposed limits on the public carry of
firearms for over 150 years. See, e.g., 1852 Haw. Sess. Laws

1 See infra n.3.

2 Id.

Op. No. 22-02

The Honorable David Y. Ige
July 7, 2022
Page 3

Act of May 25, 1852, § 1 at 19.

Current Hawaiʻi law permits individuals to lawfully carry a

pistol or revolver within a county if they obtain a license from
the countyʻs chief of police. See HRS § 134-9. Two types of
carry licenses may be issued: A chief of police may issue a
concealed carry license “[i]n an exceptional case, when an
applicant shows reason to fear injury to the applicant’s person
or property,” and satisfies certain other statutory
requirements. HRS § 134-9(a)-(b). A chief of police may issue
an unconcealed carry license to an applicant “[w]here the
urgency or the need has been sufficiently indicated,” the
applicant “is engaged in the protection of life and property,”
the applicant is “of good moral character,” and certain other
statutory requirements are satisfied. HRS § 134-9(a). 3

A. Concealed Carry License Applications Following Bruen

Following Bruen, the requirement in HRS § 134-9(a) that an

applicant “[i]n an exceptional case . . . show[] reason to fear
injury to the applicantʻs person or property” to obtain a
concealed carry license should no longer be enforced. The
chiefs of police should not deny an application for a concealed
carry license, or impose restrictions on a concealed carry
license, because an applicant fails to demonstrate a special
need or a sufficiently good reason to carry a firearm. All
other statutory requirements for obtaining a concealed carry
license – except the citizenship requirement as applied to
lawful permanent residents and U.S. nationals – remain in full
force and effect, and should continue to be enforced by the
chiefs of police.

3 HRS § 134-9(a) states that applicants must be citizens of the

United States to obtain either a concealed or unconcealed carry
license (or as to concealed carry licenses, “a duly accredited
official representative of a foreign nation”). The requirement
in HRS § 134-9(a) that an applicant be a citizen of the United
States may not be enforced as to lawful permanent residents or
U.S. nationals. See Fotoudis v. City & Cnty. of Honolulu, 54 F.
Supp. 3d 1136 (D. Haw. 2014); Roberts v. Connors, Civ. No. 19-
165 DKW-WRP (D. Haw.) (Doc. 25, Stipulation to Dismiss Complaint
for Declaratory and Injunctive Relief, Filed on April 2, 2019
With Prejudice, and Order); Nickel v. Connors, Civ. No. 20-00330
JMS-RT (D. Haw.) (Doc. 22, Stipulation and Order).

Op. No. 22-02

The Honorable David Y. Ige
July 7, 2022
Page 4

For example, the chiefs of police can and should still

require that applicants for a concealed carry license “[b]e
qualified to use the firearm in a safe manner,” “[n]ot be
prohibited under section 134-7 from the ownership or possession
of a firearm,” and “[n]ot have been adjudged insane or not
appear to be mentally deranged.” HRS § 134-9(b). The chiefs of
police should also still require that applicants for a concealed
carry license “[a]ppear to be a suitable person to be so
licensed.” Id; see Bruen, slip op. at 5 n.1 (discussing a
“suitable person” requirement which “precludes permits only to
those ‘individuals whose conduct has shown them to be lacking
the essential character o[r] temperament necessary to be
entrusted with a weapon’”); id. at 30 n.9 (recognizing that
states may impose requirements “designed to ensure only that
those bearing arms in the jurisdiction are . . . ‘law-abiding,
responsible citizens’”).

Being “a suitable person” means that the applicant does not

exhibit specific and articulable indicia that the applicant
poses a heightened risk to public safety. The chiefs of police
may consider the following factors when determining whether an
applicant displays specific and articulable indicia that the
applicant poses a heightened risk to public safety, such that
the applicant is not “a suitable person to be so licensed”:

1. Whether the applicant has been involved in recent

incidents of alleged domestic violence;

2. Whether the applicant has been involved in recent

incidents of careless handling or storage of a
firearm;

3. Whether the applicant has been involved in recent

incidents of alcohol or drug abuse;

4. Whether the applicant has been involved in other

recent violent conduct.

In sum, the only portion of Hawaii’s concealed carry law –

other than the citizenship requirement as applied to lawful
permanent residents and U.S. nationals – that should not be
enforced following Bruen is the requirement that an applicant
“[i]n an exceptional case . . . show[] reason to fear injury to
the applicantʻs person or property” to obtain a concealed carry
license. HRS § 134-9(a).

Op. No. 22-02

The Honorable David Y. Ige
July 7, 2022
Page 5

However, even though the chiefs of police should no longer

enforce the requirement that an applicant “[i]n an exceptional
case . . . show[] reason to fear injury to the applicantʻs
person or property” to obtain a concealed carry license, HRS §
134-9(a), the chiefs of police may still inquire about an
applicant’s reasons for seeking a concealed carry license. The
reasons an applicant provides should only be used in reviewing a
concealed carry application to the extent relevant to other
lawful requirements to obtain a concealed carry license, such as
whether the applicant is a “suitable person.” An applicant’s
reasons for seeking a concealed carry license should not be used
to deny or restrict a license because the applicant purportedly
lacks a sufficiently good reason to obtain a license.

B. Unconcealed Carry License Applications Following Bruen

Although Bruen recognized a right to public carry under the

U.S. Constitution, it did not recognize a specific right to
either concealed or unconcealed carry. See Bruen, slip op. at
44 (“[T]he history reveals a consensus that States could not ban
public carry altogether.” (emphasis omitted)); id. at 41-42
(“[I]n the century leading up to the Second Amendment and in the
first decade after its adoption, there is no historical basis
for concluding that the pre-existing right enshrined in the
Second Amendment permitted broad prohibitions on all forms of
public carry.” (emphasis added)); id. at 46 (“[I]t was
considered beyond the constitutional pale in antebellum America
to altogether prohibit public carry.”). This leaves states with
discretion to place good cause restrictions on one form of
carry, where similar restrictions are not placed on the other
form of carry. See id. at 44-45.

Although, as noted above, good cause should no longer be

required for concealed carry licenses, the good cause
requirement in HRS § 134-9(a) for unconcealed carry – that an
applicant must “sufficiently indicate[]” an “urgency” or “need”
to carry a firearm and that the applicant is “engaged in the
protection of life and property” – should still be applied as to
unconcealed carry applications. Any other statutory
requirements that must be satisfied under Hawaiʻi law to obtain
an unconcealed carry license – except for the citizenship
requirement as applied to lawful permanent residents and U.S.
nationals – should likewise continue to be applied.

Op. No. 22-02

The Honorable David Y. Ige
July 7, 2022
Page 6

The standards that the chiefs of police should use in

considering applications for unconcealed carry licenses are
discussed in Attorney General Opinion No. 18-1, which remains
valid and applicable.

III. CONCLUSION

We advise that as to applications for concealed carry

licenses, the chiefs of police should no longer require that an
applicant "[i]n an exceptional case . . show[] reason to fear
injury to the applicant's person or property" in order to obtain
a concealed carry license. HRS§ 134-9(a). The chiefs of
police should continue to enforce all other statutory
requirements for obtaining a concealed carry license, except for
the citizenship requirement as applied to lawful permanent
residents and U.S. nationals.

Furthermore, we advise that as to unconcealed carry

licenses, the chiefs of police should continue to enforce all
requirements for an unconcealed carry license that were
applicable before Bruen (this excludes the citizenship
requirement as applied to lawful permanent residents and U.S.
nationals). An applicant must still, among other things,
"sufficiently indicate[]" an "urgency" or "need" to carry a
firearm, and that the applicant is "engaged in the protection of
life and property." HRS§ 134-9(a).

Very truly yours,

H~-~&
Attorney General

Op. No. 22-02