(En Banc, 215 pp.)
Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.
(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)
Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.
Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.
State courts & treatises inconclusive, but generally recognize the government's power to regulate.
The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed. This does not impede the protection of homes or businesses. It is peculiarly the duty of the state to defend the public square. The states assumed primary responsibility for maintaining the king's peace.
Exceptions to regulations were made for persons, places. Surety operated not as a minor penalty but as a strong discincentive to carry arms.
That handguns may be used for defense does not change their threat to the king's peace. The mere presence of such weapons creates terror in the public space. Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.
Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.
Procedural due process claim is speculative, since no licence has yet been denied.
DISSENT:
Unprecedented and extreme holding. First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.
Plain text of the Amendment requires right to carry arms. 19 c. State caselaw and federal legislation recognized the right to carry arms.
Statute of Northampton allowed carrying of common arms, not for the purpose of terror. English law was more restrictive of the right to carry arms than was the American. Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons.
"Weapons capable of being concealed" is a novel standard. Heller explicitly contemplates self-defense as a legitimate reason. The responsibility for keeping the peace lies with the people, not with the states.
The right openly to carry arms is within the core of the Amendment. As the regulation destroys the right, it is necessarily unconstitutional.
Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.
DISSENT:
Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.