State v. Bibbs.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-SEP-2025
10:20 AM
Dkt. 154 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

STATE OF HAWAI#I, Plaintiff-Appellee, v.
CASEY BIBBS, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

SEPTEMBER 22, 2025

NAKASONE, C.J., AND WADSWORTH AND McCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

This case raises a constitutional challenge to Hawaii's
statutory ban on the possession of large-capacity magazines, or
LCMs, for use with a pistol. Hawaii Revised Statutes (HRS)
§ 134-8(c) generally prohibits the manufacture, possession, or
sale of detachable ammunition magazines that can hold more than
ten rounds and be used with a pistol. Defendant-Appellant Casey
Bibbs (Bibbs) was convicted of, among other things, possessing a
prohibited magazine in violation of this law. He contends that
his convictions cannot stand because HRS § 134-8(c) infringes on
his right to bear arms, as protected by the Second Amendment to
the United States Constitution.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Bibbs appeals from the "Judgment; Conviction and
Probation Sentence; Terms and Conditions of Probation; Notice of
Entry" (Judgment of Conviction and Sentence) entered on
December 14, 2022, in the Circuit Court of the Second Circuit
(Circuit Court).1/ Bibbs also challenges the Circuit Court's:
(1) September 15, 2021 "Order Denying [Bibbs's] Motion to
Suppress Evidence" (Order Denying Motion to Suppress); and (2)
December 23, 2022 "Order Denying [Bibbs's] Motion to Set Aside
Conviction or Alternatively for New Trial" (Order Denying Motion
to Set Aside Conviction).2/ These challenges are based solely on
Bibbs's contention that "his actions were protected by the Second
Amendment."
We hold that HRS § 134-8(c)'s prohibition on the
possession of large-capacity magazines does not violate the
Second Amendment. The Ninth Circuit recently concluded in an en
banc opinion that California's similar ban on the possession of
LCMs comports with the Second Amendment – in part because LCMs
are neither "arms" nor accessories protected by the text of the
Second Amendment. Duncan v. Bonta, 133 F.4th 852, 860, 865, 869
(9th Cir.), petition for cert. filed, No. 25-198 (U.S. Aug. 19,
2025). Other courts have similarly concluded that the Second
Amendment's text does not encompass the right to possess LCMs.
See, e.g., Or. Firearms Fed'n v. Kotek, 682 F. Supp. 3d 874,
911–13 (D. Or. 2023) (ruling that LCMs are not "arms" within the
meaning of the Second Amendment); Ocean State Tactical, LLC v.
Rhode Island, 646 F. Supp. 3d 368, 384–88 (D.R.I. 2022) (same),
aff'd on other grounds, 95 F.4th 38 (1st Cir. 2024); Brumback v.
Ferguson, No. 1:22-cv-03093-MKD, 2023 WL 6221425, at *8 (E.D.
Wash. Sept. 25, 2023) (same); State v. Gator's Custom Guns, Inc.,
586 P.3d 278, 283 (Wash. 2025) (same); cf. Bevis v. City of
Naperville, 85 F.4th 1175, 1195 (7th Cir. 2023) (concluding for a
related reason that LCMs are not protected "arms").

1/
The Honorable Kirstin M. Hamman presided.
2/
The Honorable Blaine J. Kobayashi entered the Order Denying Motion
to Suppress. The Honorable Kirstin M. Hamman entered the Order Denying Motion
to Set Aside Conviction.

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

In this case, Bibbs has not established that the Second
Amendment's plain text protects his possession of a prohibited
LCM. The Circuit Court did not err in denying Bibbs's motion to
set aside his convictions on that basis. Nor did the court err
in denying Bibbs's motion to suppress evidence based on the
alleged lack of probable cause to support the search warrant that
led to the recovery of the firearms and LCMs at issue in this
case.
Although the issues raised by Bibbs lack merit, we
notice plain error affecting his substantial rights as to the
lack of a merger instruction on his convictions in Counts 6 and 7
for possession of the same prohibited LCM. We therefore remand
these counts to the Circuit Court for further proceedings
consistent with this opinion. We otherwise affirm the Judgment
of Conviction and Sentence.

I. Background

A. The Challenged Statute

In 1992, the Legislature enacted Act 286, which amended
HRS § 134-8(c) to prohibit "[t]he manufacture, possession, sale,
barter, trade, gift, transfer, or acquisition of detachable
ammunition magazines with a capacity in excess of ten rounds
which are designed for or capable of use with a pistol . . . ."3/
1992 Haw. Sess. Laws Act 286, § 3 at 741-42. The LCM
restrictions in section 134-8(c), along with provisions
prohibiting ownership of "assault pistols," followed several
deadly mass shootings in the United States. Id. These
provisions addressed the Legislature's concern with the use of
weapons that could "fir[e] a large amount of ammunition in a
short period of time." H. Stand. Comm. Rep. No. 1261-92, in 1992
House Journal, at 1382. This feature, the Legislature found,
made the prohibited items "especially dangerous" "while having
little or no utility for sporting applications." Id.

3/
This prohibition does not apply "to magazines originally designed
to accept more than ten rounds of ammunition which have been modified to
accept no more than ten rounds and which are not capable of being readily
restored to a capacity of more than ten rounds." 1992 Haw. Sess. Laws Act
286, § 3 at 741-42; see HRS § 134-8(c).

3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

B. The Factual and Procedural Background
In November 2019, Bibbs hired #Oihana Electrical
Services to perform electrical work at his home in Wailuku, Maui.
On November 6, #Oihana Electrical Services owner Eric Dowells
(Dowells) asked Chad Victorino-Rodrigues (Victorino-Rodrigues),
an apprentice electrician, to assist him at Bibbs's residence.
Victorino-Rodrigues later testified at trial that while
he was working at Bibbs's residence, Bibbs made "rude gestures"
and insulting remarks, leading to "an uncomfortable situation."
Victorino-Rodrigues packed up his tools and told Dowells that he
quit. He then walked to his truck to load his tools and leave.
Bibbs went into the house, and as Victorino-Rodrigues began
reversing his truck out of the driveway, Bibbs "came out with his
gun telling [Victorino-Rodrigues] to leave [the] property."
Bibbs followed Victorino-Rodrigues up the driveway, pointed the
gun at his truck, and told him to leave. Victorino-Rodrigues
drove away from Bibbs's residence and called the police to report
the incident.
Maui Police Department (MPD) officers arrived at
Bibbs's residence to investigate. Bibbs was detained and advised
of his constitutional rights; he did not consent to a search of
the premises. Officer Erik Matsuo (Officer Matsuo) placed Bibbs
under arrest for the offense of Terroristic Threatening in the
First Degree, and Bibbs was transported to the Wailuku police
station.
That same day, MPD obtained a warrant authorizing the
search of Bibbs's residence. In executing the warrant, MPD
officers recovered two firearms, over 500 rounds of live
ammunition, and several magazines, "some high capacity[.]" The
firearms were not registered in any county in Hawai#i.
On December 16, 2019, Bibbs was indicted on eight
counts related to the events of November 6, as follows:

(1) Count 1, Terroristic Threatening in the First
Degree, in violation of HRS § 707-716(1)(e);

(2) Count 2, Unlawful Possession of Firearm, in
violation of HRS § 134-4(b);

4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(3) Count 3, Unlawful Possession of Firearm, in
violation of HRS § 134-4(b);

(4) Count 4, Permit to Acquire Ownership of a
Firearm, in violation of HRS § 134-24/ and
subject to HRS § 134-17(c);

(5) Count 5, Permit to Acquire Ownership of a
Firearm, in violation of HRS § 134-2 and
subject to HRS § 134-17(c);

(6) Count 6, Possession of Prohibited Detachable
Ammunition Magazine, in violation of HRS
§ 134-8(c) and subject to HRS § 134-8(d)5/;

(7) Count 7, Possession of Prohibited Pistol
Magazine, in violation of HRS § 134-8(c) and
subject to HRS § 134-8(d); and

(8) Count 8, Possession of Prohibited Pistol
Magazine, in violation of HRS § 134-8(c) and
subject to HRS § 134-8(d).

4/
At the time of the alleged offense, HRS § 134-2 (2011) stated, in
relevant part:

(a) No person shall acquire the ownership of a
firearm, whether usable or unusable, serviceable or
unserviceable, modern or antique, registered under prior law
or by a prior owner or unregistered, either by purchase,
gift, inheritance, bequest, or in any other manner, whether
procured in the State or imported by mail, express, freight,
or otherwise, until the person has first procured from the
chief of police of the county of the person's place of
business or, if there is no place of business, the person's
residence or, if there is neither place of business nor
residence, the person's place of sojourn, a permit to
acquire the ownership of a firearm as prescribed in this
section.
5/
At the time of the alleged offense, HRS § 134-8 (2011) stated, in
relevant part:
(c) The manufacture, possession, sale, barter, trade,
gift, transfer, or acquisition of detachable ammunition
magazines with a capacity in excess of ten rounds which are
designed for or capable of use with a pistol is prohibited.
This subsection shall not apply to magazines originally
designed to accept more than ten rounds of ammunition which
have been modified to accept no more than ten rounds and
which are not capable of being readily restored to a
capacity of more than ten rounds.
(d) . . . Any person violating subsection (c) shall
be guilty of a misdemeanor except when a detachable magazine
prohibited under this section is possessed while inserted
into a pistol in which case the person shall be guilty of a
class C felony.

5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On August 23, 2021, Bibbs filed a Motion to Suppress
Evidence. The motion sought "to suppress[] and preclud[e] from
use at trial, all illegally seized evidence obtained from
searches and seizures of [Bibbs's] property, which violated
[Bibbs's] rights under Article I, Section 7 of the Hawai#i State
Constitution . . . and the Second Amendment . . . ." Bibbs
argued that there was "no probable cause for the unlawful search
because [Bibbs] was exercising his Second Amendment [rights]."
On September 3, 2021, the Circuit Court held an
evidentiary hearing on the motion to suppress. Bibbs and Officer
Matsuo testified. Bibbs claimed that on the date of the
incident, he was helping Dowells with some of the electrical work
prior to Victorino-Rodrigues's arrival. Sometime after
Victorino-Rodrigues began working, "out of the "blue" he said, "I
quit, I'm out of here, man." Bibbs told Victorino-Rodrigues,
"[I]f you start quitting things now in life, you'll be quitting
everything." Victorino-Rodrigues replied, "what the F did you
say" and started to approach Bibbs "fist in hand," but Dowells
interceded. Bibbs then ran into his house and "got [his]
weapon," came out to the front door, and told Victorino-Rodrigues
that he needed to leave the property. When Victorino-Rodrigues
drove halfway down the driveway and parked, Bibbs walked out into
the yard and told Victorino-Rodrigues, "you need to get out of my
. . . driveway, you need to leave here." According to Bibbs,
"[t]hat was pretty much about it. He left."
On cross-examination, Bibbs further testified that he
brought a Ruger handgun and a Ruger long gun into Hawai#i when he
moved from Arizona and did not inquire about Hawaii's gun laws
until "after the fact." He admitted that on the day of the
incident, his two firearms were not registered in Hawai#i, he
possessed a magazine for the handgun that could hold fifteen
rounds, and he had two magazines for the rifle that could hold
thirty rounds each. Bibbs's counsel argued during the hearing:
"Hawai#i does have restrictive laws. It's our arguments [sic]
that these laws are unconstitutional and Mr. Bibbs was acting
within his constitutional rights when he pointed the gun at Mr.
Victorino[-]Rodrigues and asked him to leave. So based on that,

6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

a search warrant was unconstitutional . . . ." (Formatting
altered.)
The Circuit Court denied the motion to suppress,
stating in part: "There was no evidence presented to the Court
that the search warrant that was obtained by the Maui Police
Department was invalid for lack of probable cause or for any
other reason."
Bibbs's trial began on September 12, 2022. On the
second day of trial, Victorino-Rodrigues testified about the
November 6, 2019 incident with Bibbs as described above. On
cross-examination, he also stated that during the incident,
Dowells "never even got off the ladder" he was on. "He did
nothing."
Dowells testified next, as follows: During the
November 6, 2019 job, Victorino-Rodrigues quit and Dowells did
not know why. He did not hear Bibbs make any disparaging remarks
to Victorino-Rodrigues, and did not hear "any heated comments
between them back and forth." After quitting, Victorino-
Rodrigues walked away, but shortly later came back toward Bibbs
"saying something, not choice words." Dowells jumped down from a
ladder, "got in between them[,]" "pushed [his] hands on
[Victorino-Rodrigues] and said, Yo, stop." Victorino-Rodrigues
"turned around and went back to his truck." Bibbs was "upset"
and "was gone for a moment out of [Dowells's] sight and [Dowells]
d[id]n't know where he went[.]" Dowells saw Bibbs come back from
a grassy area and "going down the side of his house . . . ."
Dowells did not see anything in Bibbs's hands; he did not see a
gun.
Officer Matsuo took the stand after Dowells. He
testified as follows: On November 6, 2019, he and other MPD
officers were dispatched to respond to Victorino-Rodrigues's
emergency call. When Officer Matsuo met Victorino-Rodrigues, he
was "very excited, anxious, talking very quickly, breathing
rapidly." Victorino-Rodrigues told Officer Matsuo about the
incident with Bibbs. When Officer Matsuo arrived at the Bibbs
residence, "[he] had information that a firearm was brandished in
the threatening of another individual [at] which time Mr. Bibbs

7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

was detained." Bibbs was "[g]enerally[] uncooperative" in
response to MPD officers at the scene and would not allow them to
search his home. After obtaining the search warrant, MPD
recovered two firearms – a rifle and a pistol – in Bibbs's
residence, along with magazines, ammunition and a rifle case.
The rifle case, which was found under a bed in one of the
bedrooms, contained a rifle, magazine and ammunition. A
semiautomatic 9mm pistol, loaded with a magazine containing 17
rounds of live ammunition, was found in another room on a
"windowsill [in the residence] next to the air conditioning
unit." Officer Matsuo found that the two firearms were not
registered within the County of Maui.
After Matsuo's testimony, the State rested its case.
The defense orally moved for a judgment of acquittal, arguing
that the State had not proven the elements of the charged
offenses. The Circuit Court granted the motion as to Counts 2
and 3,6/ but denied it as to the remaining six counts. Bibbs
elected not to testify, and the defense rested.
The following day, the State orally moved to dismiss
Count 8, because testimony by Officer Matsuo had indicated that
the magazine referenced in that count did not actually have the
capacity to hold more than ten rounds. The Circuit Court granted
the motion.
As a result, the jury was instructed on Counts 1, 4, 5,
6, and 7. Following deliberations, the jury returned a not
guilty verdict on Count 1, Terroristic Threatening in the First
Degree, and guilty verdicts on Count 4, Permit to Acquire
Ownership of a Firearm; Count 5, Permit to Acquire Ownership of a
Firearm; Count 6, Possession of Prohibited Detachable Ammunition
Magazine; and Count 7, Possession of Prohibited Pistol Magazine.7/

6/
The Circuit Court concluded that the State had presented no
evidence that the firearms at issue were "owned by another." HRS § 134-4(b)
("No person shall possess any firearm that is owned by another . . . without
a permit from the chief of the police of the appropriate county . . . .").
7/
Counts 6 and 7 addressed Bibbs's possession of an LCM containing
17 rounds of ammunition, in violation of HRS § 134-8(c) (a misdemeanor), which
was inserted into a pistol, in violation of HRS § 134-8(d) (a Class C felony).

8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On September 23, 2022, Bibbs filed a motion to set
aside his convictions, by which he "renew[ed]" his motion for
judgment of acquittal, or alternatively for a new trial. Bibbs
argued that his conduct was protected by the Second Amendment,
and the search warrant was improperly based on Bibbs's
constitutionally protected conduct. Bibbs also argued that HRS
§ 134-8(c) is unconstitutional under N.Y. State Rifle & Pistol
Association v. Bruen, 597 U.S. 1 (2022). The State opposed the
motion.
On October 21, 2022, the Circuit Court heard the motion
and summarized Bibbs's argument as follows: "[B]ecause the
defendant was acquitted of the terroristic threatening that,
therefore, there was no basis to obtain the search warrant, and
the firearms charges were -- are, therefore, unconstitutional."
Defense counsel responded: "Correct, your Honor. He . . .
cannot be punished for exercising a constitutional right . . . ."
After noting that the standard of proof to convict at trial is
"very different" than the standard to make an arrest or to obtain
a search warrant, the Circuit Court denied the motion.
The Circuit Court sentenced Bibbs to one year of
probation on each of Counts 4, 5, and 7, and four years of
probation on Count 6, with all terms to run concurrently. Bibbs
was also sentenced to various special conditions of probation,
including serving four days in jail with credit for time served.
This appeal followed. Bibbs's opening brief, raises
the following points of error:
1. "It was error to deny Bibbs'[s] Motion to Suppress
Evidence because his actions were protected by the Second
Amendment"; and
2. "It was error to deny Bibbs'[s] Motion to vacate
convictions because his actions were protected by the Second
Amendment."

II. Standards of Review

A. Probable Cause for a Search Warrant

We review "the determination of probable cause for the
issuance of a search warrant under the de novo standard . . . ."

9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State v. Quiday, 138 Hawai#i 124, 127, 377 P.3d 65, 68 (App.
2016) (internal quotation marks omitted) (quoting State v.
Detroy, 102 Hawai#i 13, 18, 72 P.3d 485, 490 (2003)).

B. Motion for Judgment of Acquittal/New Trial

We review a ruling on a motion for judgment of
acquittal by applying the same standard as the trial court,
namely, "whether, upon the evidence viewed in the light most
favorable to the prosecution and in full recognition of the
province of the trier of fact, the evidence is sufficient to
support a prima facie case so that a reasonable mind might fairly
conclude guilt beyond a reasonable doubt." State v. Angei, 152
Hawai#i 484, 492, 526 P.3d 461, 469 (2023) (quoting State v.
Jhun, 83 Hawai#i 472, 481, 927 P.2d 1355, 1364 (1996)). "The
granting or denial of a motion for new trial is within the sound
discretion of the trial court and will not be disturbed absent a
clear abuse of discretion." State v. Williams, 149 Hawai#i 381,
391, 491 P.3d 592, 602 (2021).

C. Constitutional Law

"We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard." W. Maui
Resort Partners LP v. Cnty. of Maui, 154 Hawai#i 121, 132, 547
P.3d 454, 465 (2024) (quoting Gardens at W. Maui Vacation Club v.
Cnty. of Maui, 90 Hawai#i 334, 339, 978 P.2d 772, 777 (1999)).

III. Discussion

Bibbs contends that the Circuit Court erred in denying
his motion to suppress and his motion to set aside convictions
because "his actions were protected by the Second Amendment."
He argues that one of the statutes under which he was convicted,
HRS § 134-8(c), is unconstitutional when analyzed under the
framework announced by the United States Supreme Court in Bruen.8/

8/
Bibbs does not contend that the requirement under HRS § 134-2 that
he obtain permits to acquire firearms is unconstitutional.

10
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

More specifically, Bibbs argues that "magazines are 'arms' within
the scope of the Second Amendment," "magazines [holding] over ten
rounds are in common use for lawful purposes," and "the State
cannot show that relevant historical tradition justifies its
magazine ban under Bruen." (Formatting and capitalization
altered.) Bibbs also argues that the search warrant that
resulted in the recovery of his firearms and magazines was
improperly based on his constitutionally protected conduct.
The State contends that HRS § 134-8(c) is
constitutional and, more specifically, that Bibbs failed to carry
his initial burden of establishing that his conduct - possessing
a prohibited LCM – "fell under the protection of the Second
Amendment[.]"9/ The State argues that "[t]he historical question
that Bibbs now faults the State for not addressing was simply
never reached below, due to Bibbs's failure to show his conduct
was protected by the Second Amendment in the first place." On
the latter issue, the State maintains that LCMs are not protected
by the Second Amendment because they (a) are not "arms" within
the meaning of the Second Amendment, (b) were not shown below to
be commonly used in self-defense, and (c) are "dangerous and
unusual." The State further contends that even if LCMs are
protected by the Second Amendment, HRS § 134-8(c) is consistent
with the Nation's historical tradition of firearm regulation.
Finally, the State argues that there was probable cause to
support the search warrant of Bibbs's residence.
We address Bibbs's constitutional challenge to HRS
§ 134-8(c) first, before turning to his argument regarding the
search warrant. We then address the merger issue affecting
Counts 6 and 7.

A. Bibbs Has Not Established that the Second Amendment's Plain
Text Protects His Possession of the Prohibited LCM

Bibbs argues that HRS § 134-8(c) violates the Second
Amendment when analyzed under the Bruen standard.

9/
The Attorney General of the State of Hawai #i similarly argues in
an amicus curiae brief that HRS § 134-8(c) withstands scrutiny under the
Second Amendment and the test established in Bruen.

11
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Second Amendment to the United States Constitution
states: "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and
bear Arms, shall not be infringed." U.S. Const. amend. II. In
District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme
Court held that the Second Amendment protects "an individual
right to keep and bear arms as a means of self-defense." Bruen,
597 U.S. at 17; see Heller, 554 U.S. at 595, 635-36. Two years
later, the Court deemed that right fully applicable to the states
through the Fourteenth Amendment. See McDonald v. City of
Chicago, 561 U.S. 742, 749, 791 (2010).
More recently, in Bruen, the Court held that "the
Second and Fourteenth Amendments protect an individual's right to
carry a handgun for self-defense outside the home." 597 U.S. at
10. In reaching this conclusion, the Court announced the
following framework for deciding Second Amendment challenges to
firearms regulations:

When the Second Amendment's plain text covers an
individual's conduct, the Constitution presumptively
protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the
Nation's historical tradition of firearm regulation.

Id. at 24; see Duncan, 133 F.4th at 865. Under this framework,
an individual challenging a firearm regulation on the ground that
it violates the Second Amendment must initially show that "the
Second Amendment's plain text covers [their] conduct[.]" Bruen,
597 U.S. at 24; see Duncan, 133 F.4th at 865; see also Kotek, 682
F. Supp. 3d at 888 ("[A] plaintiff challenging a firearm
regulation must show the plain text of the Second Amendment
covers the conduct regulated by the challenged law."). If the
challenger satisfies this requirement, "[t]he government must
then justify its regulation by demonstrating that it is
consistent with the Nation's historical tradition of firearm
regulation." Bruen, 597 U.S. at 24.
Here, that means Bibbs was required at the outset to
demonstrate that the conduct at issue — possessing a prohibited
LCM — fell with the Second Amendment's plain text. Only if Bibbs
carried this burden would the State then be required to "prove

12
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

that the challenged regulation is consistent with the historical
tradition of firearm regulation." Kotek, 682 F. Supp. 3d at 888;
see Bruen, 597 U.S. at 24.
Bibbs asserts that possessing LCMs falls within the
Second Amendment's plain text because: (1) "[m]agazines are
essential to the firearm that individuals 'take into [their]
hands,' and are thus classified as part of the 'arm' itself"
(quoting Heller, 554 U.S. at 581); (2) "magazines have long been
commonly possessed in the United States for lawful purposes —
including, but not limited to, the core lawful purpose of self-
defense"; and (3) "[LCMs] are prevalent in America . . . [and]
are commonly used in many handguns . . . ." We note that Bibbs
offers no factual support for any of his assertions, and the
record is bereft of any evidence supporting them.
The Second Amendment's text encompasses the right "to
keep and bear Arms." In Heller, the Supreme Court held that "the
Second Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in existence
at the time of the founding." 554 U.S. at 582. The Court
construed "arms" to include "'any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast at or
strike another.'" Id. at 581 (quoting 1 Timothy Cunningham, A
New and Complete Law Dictionary (1771)). The Ninth Circuit has
elaborated: "The term [arms] includes commonplace weapons and is
not limited to military weapons. The meaning of '[a]rms' thus
broadly includes nearly all weapons used for armed self-defense."
Duncan, 133 F.4th at 866.
The Second Amendment's text also "carr[ies] an
implicit, corollary right to bear the components or accessories
necessary for the ordinary functioning of a firearm." Id.
(citing Jackson v. City & Cnty. of San Francisco, 746 F.3d 953,
967 (9th Cir. 2014)); see Gator's Custom Guns, 586 P.3d at 285
(the Second Amendment's protection "is broader than simply
protecting 'arms' — it protects individual conduct that falls
within the scope of the right to bear arms in self-defense, and
that implies protection of corresponding rights that are
necessary to give the right to possess a firearm for self defense

13
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

meaning." (citing Bruen, 597 U.S. at 17)). Within the Ninth
Circuit, this corollary right has encompassed accessories such as
bullets, "without which 'the right to bear arms would be
meaningless.'" Kotek, 682 F. Supp. 3d at 912 (quoting Jackson,
746 F.3d at 967). "A complete ban on ammunition thus would
implicate the Second Amendment, as likely would a ban on, for
example, firearm triggers." Duncan, 133 F.4th at 867.
Here, Bibbs has failed to establish that an LCM is an
"arm" within the meaning of the Second Amendment or a protected
accessory. LCMs themselves do not fall with the broad definition
of "arms." See id. They are not weapons. They are not used "to
cast at or strike another." Rather, an LCM is "merely attached
to a firearm in order to modify the firearm's capacity 'to cast
at . . . another' without reloading . . . ." Gator's Custom
Guns, 568 P.3d at 284; see Duncan, 133 F.4th at 867 ("A[n LCM] is
a box that, by itself, is harmless. . . . Without an accompanying
firearm, [an LCM] is benign, useless in combat for either offense
or defense."); Brumback, 2023 WL 6221425, at *8 ("On its own, [an
LCM] cannot be used to attack or defend; a magazine with
increased capacity simply reduces the frequency of reloads
required when discharging a firearm.").
Moreover, LCMs are not like bullets, or even magazines
in general, for purposes of making a firearm function. While
magazines may be necessary to render some firearms operable,
"LCMs, as a subset of magazines, are never necessary to render
firearms operable. A firearm is not useless without an LCM
because magazine capacity is not a determining factor in the
operability of a firearm." Kotek, 682 F. Supp. 3d at 913; see
Duncan, 133 F.4th at 868 ("[An LCM] is not necessary to operate
any firearm. . . . [F]irearms that accept magazines operate as
intended when equipped with magazines containing ten or fewer
rounds."); Gator's Custom Guns, 586 P.3d at 285 ("[S]ome firearms
may require a magazine to function as intended, but there are no
firearms that require an LCM to function. This is unlike
ammunition, which is an integral component of a firearm because
ammunition is necessary for a firearm to function as intended
. . . ."). By restricting only magazines that can hold more than

14
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

ten rounds and be used with a pistol, HRS § 134-8(c) regulates
only the maximum capacity of magazines, leaving the pistol fully
functional for its intended purpose. This restriction does not
render the right to bear arms in self-defense "meaningless" or
otherwise strike at the core Second Amendment right.
To the extent Bibbs claims that an LCM is essential to
the function of the pistol he possessed or pistols more
generally, he presented no evidence to support that assertion.
See Brumback, 2023 WL 6221425, at *8 ("Plaintiffs have offered
insufficient evidence suggesting that the text of the Second
Amendment was meant to include large capacity magazines.") In
short, Bibbs has failed to meet his burden of establishing that
the Second Amendment's plain text encompasses the right to
possess the prohibited LCM.
Given our conclusion, we need not reach what appear to
be Bibbs's arguments that magazines in general and LCMs in
particular are in "common use" today for self-defense.10/ See
Duncan, 133 F.4th at 865-66. And because Bibbs has not carried
his burden of establishing that his conduct was protected by the
Second Amendment's text, we need not embark on the second step of
the Bruen framework — whether HRS § 134-8(c) is consistent with
the Nation's historical tradition of firearm regulation.
Bibbs has failed to show that his possession of the
prohibited LCM was constitutionally protected. We therefore
conclude that the Circuit Court did not err in denying Bibbs's
motion to set aside his convictions, and did not abuse its
discretion in denying his alternative motion for a new trial, on
that basis.

B. There was Probable Cause to Support the Search Warrant

Bibbs contends that the Circuit Court erred in denying
his motion to suppress the evidence, i.e., the firearms and
magazines, recovered from his home pursuant to the search
warrant. He argues that he was "exercising his constitutional
right to bear arms at his home for self-protection," and that

10/
In any event, Bibbs has presented no evidence that LCMs are
commonly used for such a purpose.

15
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"'[b]ut for' the protected conduct, police had no probable cause
for a search and seizure." He also appears to argue that his
acquittal on Count 1 for terroristic threatening negated any
probable cause to arrest him and obtain the search warrant.
As the State points out in its answering brief, there
is a "threshold problem" with Bibbs's challenge to the search
warrant. "Generally, all data necessary to show probable cause
for the issuance of a search warrant must be contained within the
four corners of a written affidavit given under oath." Detroy,
102 Hawai#i at 18, 72 P.3d at 490 (brackets and internal
quotation marks omitted) (quoting State v. Navas, 81 Hawai#i 29,
34, 911 P.2d 1101, 1106 (App. 1995)). Although Officer Matsuo
testified below that he prepared and submitted his affidavit to
obtain the search warrant, Bibbs did not include the affidavit
with his motion to suppress, it does not appear to be part of the
record, and Bibbs does not address any alleged deficiencies of
the affidavit in his opening brief. We cannot conduct the
required de novo review (see supra), where the information in the
affidavit that was relied on in issuing the search warrant is not
part of the record. See Bettencourt v. Bettencourt, 80 Hawai#i
225, 230, 909 P.2d 553, 558 (1995) ("The burden is upon appellant
in an appeal to show error by reference to matters in the record
. . . ." (quoting Union Bldg. Materials Corp. v. The Kakaako
Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984))); State v.
Murphy, 59 Haw. 1, 5 n.3, 575 P.2d 448, 452 n.3 (1978). For this
reason alone, we must reject Bibbs's argument that there was no
probable cause to support the search warrant.
In any event, Bibbs's probable cause argument appears
to rest on two false premises – that his acquittal on Count 1
negated any probable cause to support his arrest or the search
warrant, and the same acquittal sanctioned his use of a firearm
in these circumstances as constitutionally protected conduct.
Bibbs offers no authority to support either proposition, and we
have found none. "Probable cause exists when facts and
circumstances within one's knowledge and of which one has
reasonably trustworthy information are sufficient in themselves
to warrant a person of reasonable caution to believe that an

16
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

offense has been committed." Detroy, 102 Hawai#i at 18, 72 P.3d
at 490 (quoting State v. Navas, 81 Hawai#i 113, 116, 913 P.2d 39,
42 (1996)). Conviction of an offense, on the other hand,
requires proof beyond a reasonable doubt. Bibbs's acquittal on
Count 1 therefore does not mean that there was no probable cause
to support his arrest or the search warrant. Similarly, the
acquittal does not equate to a finding of factual innocence or a
determination that Bibbs's use of a firearm in these
circumstances was constitutionally protected conduct. These are
the only arguments Bibbs makes on the probable cause issue, and
they both lack merit.
Accordingly, we conclude that the Circuit Court did not
err in denying the motion to suppress.

C. The Circuit Court Should Have Given a Merger Instruction

Although not raised as an issue on appeal, we note that
in addition to his convictions in Counts 4 and 5 for violations
of HRS § 134-2, Bibbs was convicted in Count 7 of possessing a
prohibited detachable ammunition magazine — specifically, a
magazine containing 17 rounds of ammunition — in violation of HRS
§ 134-8(c) (a misdemeanor), and in Count 6 of possessing the same
magazine while inserted into a pistol, in violation of HRS
§ 134-8 (c) and (d) (a Class C felony). "Plain error or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court." State v. Martin, 146
Hawai#i 365, 389, 463 P.3d 1022, 1046 (2020) (noticing plain
error as to the lack of a merger instruction on certain firearms
convictions).
HRS § 701-109 (2014) states, in relevant part:

(1) When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:

(a) One offense is included in the other, as defined
in subsection (4) of this section[.]

An offense is so included when "[i]t is established by proof of
the same or less than all the facts required to establish the
commission of the offense charged[.]" HRS § 701-109(4)(a).

17
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

In light of HRS § 701-109 and Martin, we allowed the
parties, pursuant to HRAP Rule 28(b)(4), to file supplemental
briefs as to whether Bibbs was entitled to a merger instruction
on Counts 6 and 7 and, if so, what the remedy is in these
circumstances for the court's failure to give such an
instruction. Both parties filed supplemental briefs. The State
acknowledged that the jury should have been given a merger
instruction as to counts 6 and 7 because "the felony version of
HRS § 134-8(c) differs from the misdemeanor version" only in that
the felony version requires proof of "an additional element,
i.e., that the prohibited magazine be inserted into a pistol."
Bibbs reached the same conclusion. As to the proper remedy, the
State contended based on the rulings in Martin and State v.
Padilla, 114 Hawai#i 507, 164 P.3d 765 (App. 2007), that it
should have the option of retrying Bibbs on Counts 6 and 7 with
an appropriate merger instruction, or dismissing one of the two
counts and maintaining the conviction and sentence on the other
count. Bibbs agreed.
We conclude that Bibbs was entitled to a merger
instruction on Counts 6 and 7. The same conduct of Bibbs – i.e.,
possessing a detachable ammunition magazine containing 17 rounds
that was capable of use with a pistol, while that magazine was
inserted into a pistol — may establish violations of HRS
§ 134-8(c) and (d). The violation of section 134-8(c) can be
established by proof of the same facts required to establish the
violation of section 134-8(d), which also requires proof that the
prohibited magazine be inserted into a pistol. The Circuit
Court's failure to give the jury a merger instruction in these
circumstances was prejudicial and plainly erroneous.
Although there was no merger instruction, as in Martin,
a new trial on Counts 6 and 7 is not required. Pursuant to
Martin and Padilla, the State has the option of dismissing one of
the two counts and maintaining the Judgment of Conviction and
Sentence on one charge.11/ See Martin, 146 Hawai#i at 391, 463

11/
As noted above, the Circuit Court sentenced Bibbs to one year of
probation on Count 7 and four years of probation on Count 6, with these terms
to run concurrently. Thus, the lack of a merger instruction does not affect
the maximum sentence for Bibbs's conviction on these two charges.

18
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

P.3d at 1048 (citing Padilla, 114 Hawai#i at 517, 164 P.3d at
775).

IV. Conclusion

For the reasons discussed above, Counts 6 and 7 are
remanded to the Circuit Court for further proceedings consistent
with this opinion. We otherwise affirm the "Judgment; Conviction
and Probation Sentence; Terms and Conditions of Probation; Notice
of Entry" entered on December 14, 2022, in the Circuit Court of
the Second Circuit.

On the briefs:

Gerald T. Johnson /s/ Karen T. Nakasone
for Defendant-Appellant Chief Judge

Richard B. Rost,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Maui, Associate Judge
for Plaintiff-Appellee

Kaliko'onâlani D. Fernandes, /s/ Sonja M.P. McCullen
Solicitor General, and Associate Judge
Ewan C. Rayner,
Deputy Solicitor General,
for Amicus Curiae
Attorney General,
State of Hawai#i

19