On August 8, 2023, In the United States District Court for the District of Hawaii, Judge Leslie E. Kobayhashi issued a temporary restraining order (TRO) in the case of Wolford v. Lopez. The case was filed on June 23, 2023, and has been written about previously on AmmoLand. The plaintiffs asked for a TRO for five of fifteen so called "sensitive places" in the new Hawaii law. Judge Kobayhasi issued the TRO for most of the places asked for by the plaintiffs, with some exceptions. Whether the other places which are labeled as "sensitive places" in the law will be upheld by Judge Kobayhasi remains to be seen.
Early in the opinion which establishes the TRO, Judge Kobayhashi sets the frame of the case as a conflict between safety concerns and the Second Amendment. From the opinion of Judge Kobayhashi page 2:
It is this powerful collision between Hawai`i officials’ concern for the safety and welfare of its citizens and “the Second and Fourteenth Amendments[’] [protections of] an individual’s right to carry a handgun for self-defense outside the home” that is before this Court today.
One of the things determined by the opinion is the concern for safety and welfare is mostly illusory. From page 87, when determining the balance of equities in the proposed TRO:
According to the GOA Amicus Brief, the vast majority of individuals in the United States with concealed carry permits are law-abiding. See GOA Amicus Brief at 20–25 (discussing the statistics of people with concealed carry permits to support the proposition that people with concealed carry permits are significantly less likely to commit gun-related crimes). Although the State raises important safety concerns, it fails to demonstrate that the public safety concerns overcome the public’s interest in preventing constitutional violations.
The plaintiffs asked for relief with a TRO for five areas. Those were: parking lots used by both government and non-government entities; bars and restaurants which serve alcohol and their parking lots; public beaches and parks and their parking lots; premises of banks or financial institutions and their parking lots; private property which has not clearly banned firearms. Those areas are shown in the legal descriptions on page 3:
-the portions of Haw. Rev. Stat. § 134-A(a)(1) that prohibit carrying firearms in parking areas owned, leased, or used by the State or a county which share the parking area with non-governmental entities, are not reserved for State or county employees, or do not exclusively serve the State or county building;
-the entirety of Haw. Rev. Stat. §§ 134-A(a)(4) and (a)(12);
-the portions of Haw. Rev. Stat. § 134-A(a)(9) prohibiting the carrying of firearms in beaches, parks, and their adjacent parking areas; and -the portion of Haw. Rev. Stat. § 134-E that prohibits carrying firearms on private properties held open to the public.
The State of Hawaii attempted to claim its power as a proprietor was greater than its power to legislate. Judge Kobayhashi did not agree. From page 55:
The State asks this Court to make the distinction “‘between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operation.’” [Mem. in Opp. at 11 (quoting Nordyke, 681 F.3d at 1045 (cleaned up)).] The State makes this distinction to argue that it may regulate conduct on its property when it is acting as a proprietor. See id. at 11 n.17 (citations omitted). This distinction in a post-Bruen world makes no difference. What matters at the first step of the inquiry is whether the regulated conduct is covered by the Second Amendment’s plain text.
Judge Kobayhashi concluded the state could not unilaterally remove the presumption to carry on private property open to the public: page 76-77:
What § 134-E does, and what cannot be constitutionally permitted, is remove the presumption of the right to carry a firearm on private property held open to the public. Under § 134-E, conduct that was presumptively protected under the Second Amendment is now presumptively not protected. Such a change runs afoul of the Second Amendment’s “guarantee[] to all Americans [of] the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.” See Bruen, 142 S. Ct. at 2156 (citation and internal quotation marks omitted).
Judge Kobayhashi makes the obvious call: when constitutional rights, including Second Amendment rights are violated, it is irreparable harm of itself, no matter how short the duration. From page 83:
Plaintiffs argue they will face irreparable harm per se because their constitutional rights have been violated. See TRO Motion, Mem. in Supp. at 24. The Court finds that Plaintiffs have sufficiently established they will likely face immediate irreparable harm. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). The Ninth Circuit does “not require a strong showing of irreparable harm for constitutional injuries.” Cuviello v. City of Vallejo, 944 F.3d 816, 833 (9th Cir. 2019).
Judge Kobayhashi grants most of what the plaintiffs asked for in the TRO. This shows the Judge believes there is a strong likelihood the plaintiffs will prevail on those points. Most of the fifteen locations labeled as "sensitive places" were not considered in the TRO, but will be considered as the case is further adjudicated.
This is a strong win for Second Amendment Supporters. It comes on the heals of the three judge panel in the United States Court of Appeals for the Ninth Circuit, where it was ruled the ban on the possession and carry of "butterfly knives" in Hawaii law violates the Second Amendment of the Constitution.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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