The U.S. Supreme Court recently ruled in New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. ___ (2022), that New York's law on concealed carry permits (CCW) was unconstitutional, and ruled that the ability to carry a pistol in public was a constitutional right under the Second Amendment of the U.S. Constitution. The majority ruled that states are allowed to enforce "shall-issue" permitting, where applicants for concealed carry permits must satisfy certain objective criteria, such as passing a background check, but that states with a "may-issue" system that utilize "arbitrary" evaluations of need made by local authorities are unconstitutional. A concurring opinion noted that many state restrictions requiring background checks, firearms training, a check of mental health records, and fingerprinting, are still permissible because they are objective, in contrast to the discretionary nature of New York’s law.

While the ruling directly applied only to New York's law, legal analysts and lawmakers expected the ruling to be used to challenge the "may-issue" gun regulations in California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island. In Hawaii, Hawaii Island, Maui, and Kauai have already adopted new rules for concealed gun carry.  

Honolulu Mayor Rick Blangiardi recently approved the Honolulu Police Department’s (HPD) revised rules for concealed carry gun permits to allow permit holders on Oahu to carry guns in public places. The revised rules repeal existing §§ 15-1 through 15-11 and promulgate new rules §§ 15-12 through 15-28 of Chapter 15 of the Rules of the Chief of Police, HPD, entitled “Firearms Permits and Licenses.”

The Honolulu revised rules set forth and provide:

•  A clear process for applicants to obtain permits to acquire firearms and to register firearms;

• A clear process and criteria (including testing, training, and background check requirements) for detectives, investigators, and guards to obtain licenses to carry firearms while on-duty, along with requirements for detective and guard agencies with armed employees;

• A clear process and criteria (including testing, training, and background check requirements) for applicants to obtain licenses to carry firearms outside the home, whether concealed or unconcealed, following the Supreme Court’s ruling in Bruen;

• Substantive guidelines for carrying a firearm outside the home, including the manner in which a firearm shall be carried, a requirement to carry one’s license on one’s person, and a requirement to carry no more than one firearm at a time;

• A clear process and criteria for certification of instructors to teach firearm safety and administer the required testing of applicants for licenses to carry;

• A clear process for renewing licenses; and

• The circumstances under which licenses to carry and instructor certifications will be revoked and the appeal process for denials and revocations.

The Honolulu revised rules do not identify places where the carrying of a firearm is prohibited.

After Bruen, restricting concealed carry in sensitive places has become an issue nationwide. The Hawaii County Council is considering a sensitive places bill and state lawmakers are considering introducing legislation next session to restrict where concealed guns can be carried. Mayor Blangiardi also wants the Honolulu City Council to issue an ordinance placing restrictions on carrying guns in certain sensitive places, including schools, hospitals, bars, public places, government buildings, parks and on public transportation.

The City Council has scheduled a first reading of Bill 57 (2022) for 10 a.m. on November 29, 2022 in the council chambers at Honolulu Hale. . The proceedings will be broadcast live on honolulucitycouncil.org, or via Olelo Community Media Channel 54.

The proposed bill would define those sensitive locations within Honolulu where the carrying or possessing of firearms has traditionally been subject to restrictions to protect health, life, and property, while balancing an individual's Second Amendment right to bear arms for self-protection per the Bruen decision. Pertinent for businesses is that the bill would also “facilitate communication to the public of decisions by private businesses and charitable organizations in permitting or restricting firearms on their property." The proposed bill recognizes longstanding rules regarding the public carry of firearms, and aims to set a “default rule” to help “ease public confusion and avoid individual confrontation” while reinforcing the right of private businesses to determine their own rules.

Oahu employers should review the definitions in the bill to determine the bill’s potential application to them. For example:

• "Business" means any sole proprietorship, partnership, joint venture, business trust, limited liability company, business corporation, professional corporation, or other business entity farmed for profit-making purposes.

• “Business establishment” includes hotels, financial institutions, any industrial, commercial, or wholesale establishment, utilities, retail establishments where goods or services are sold, leased, restaurant and bars.

• “Charitable organization” or “charitable establishment” means any organization classified under Section 501(c) of the federal tax code.

Employers should also note Sec. 40-_.4 of the bill, as it pertains to the prohibition against the public carry of firearms on private business or charitable organizations’ premises without express consent:

(a) Prohibition. Except as otherwise provided by federal or State law, it is a violation of this article for any person to intentionally, knowingly, or recklessly carry on their person a firearm, concealed or unconcealed, on the premises of any business establishment or charitable establishment unless the business establishment or charitable establishment, or an agent thereof, has expressly consented thereto. Express consent may include signage.
(b) For purposes of this section, “the premises of any business establishment or charitable establishment” includes all appurtenant grounds and parking lots of the business establishment or charitable establishment, but does not include privately owned or maintained streets or sidewalks.

Violators of this section could be found guilty of a misdemeanor.

While Bill 57 (2022) is currently at the hearing stage, HPD is expected to continue issuing permits to qualified applicants.

Employers, as private businesses, should work with their legal counsel and their insurance carriers to develop or evaluate their policies on whether firearms (and weapons in general) are allowed onto their property. Policies should include whether firearms and other weapons may be carried by employees, customers, vendors, and other visitors, as well as information regarding the appropriate notices to be displayed. A key decision employers need to address is whether to allow firearms onto their property, while weighing the potential consequences to any decision.

For example, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, private companies must provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm." Per the Occupational Safety and Health Administration (OSHA), the courts have interpreted OSHA's General Duty Clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. Accordingly, under OSHA’s General Duty Clause, private companies can define what constitutes risk and can ban concealed carry firearms.

To help Hawaii employers understand how they should navigate the Second Amendment and concealed carry in the Hawaii workplace, HEC will be hosting an in-person presentation titled, “The Future of the Second Amendment and Concealed Carry in the Workplace in Hawaii after New York State Rifle & Pistol Assn. v. Bruen.” This presentation will be  facilitated by Paul M. Saito, Esq., of Cades Schutte. Date and time of the presentation are to be announced.