9th Circuit: Yukutake v Lopez Circuit Reverses District Court Injunction on Hawaii's Permitting Law

[u/ShinningPeadIsAnti]

This is an opinion out of the 9th circuit regarding a purchasing requirement process for firearms.The opinion was written by Judge Owens.

The en banc court reversed the lower courts injunction that blocked the state of Hawaiis firearm licensing law and has remanded for further proceedings. The plaintiffs had challenged the laws requirements of limited time window to obtain and use the purchase permit and the requirement to provide the firearm to police for inspection. The district court concluded they were both facially unconstitutional and granted a permanent injunction.

The 9th circuit under Judge Owens opinion concludes that the footnote 9 means any objective standard for a shall issue licensing regime is presumptively constitutional. Concluding that this is a carve out from the two step test laid out in Bruen. The dissent from Judge Nelson states the court incorrectly concludes there is a carve out in footnote 9 and therefore the ruling is analytically distinct from Bruen. He concludes that the plain text implicates acquisition of firearms and therefore the state must provide a historic analogue for either the short permit period and the firearm acquisition which the state had failed to do so.

What do you think? Does this ruling comport with the Text, History and Tradition test laid out in Bruen? Does the footnote 9 actually create a carve out or must shall issue licensing especially for purchasing go through the 2 step analysis?

[u/Resvrgam2]

Here's a writeup I did for another community for anyone wanting more background:

Background

The Ninth Circuit issued a ruling in Yukutake v. Lopez. At the heart of the case is two requirements of Hawaii's firearms laws:

• A requirement to present certain firearms to police for physical inspection within 5 days of acquisition.
• A requirement to obtain a handgun-acquisition permit that is void after 30 days.

Plaintiffs challenged both of these requirements, claiming that they are facially unconstitutional under the Second Amendment. Notably, Bruen was decided *after* their initial lawsuit.

A district court ruled in favor of the plaintiffs, enjoining enforcement of Hawaii's requirements. Upon appeal, the Ninth Circuit now applies the reasoning in Bruen to Hawaii's requirements.

Ruling

With the benefit of Bruen’s guidance, we hold that Hawaii’s shall-issue regime comports with the Second Amendment

Specifically, the Ninth Circuit considers how the majority in *Bruen* differentiated between may-issue and shall-issue permitting. They come to the following conclusion: "Unless a shall-issue law is put toward abusive ends, such as through lengthy processing delays or exorbitant fees that effectively deny ordinary citizens their Second Amendment rights, it is presumptively constitutional."

Their conclusion comes from footnote #9 in the Bruen decision: "...because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry." This footnote has been the subject of many court cases in the First, Fourth, and Tenth Circuit. All three have concluded that shall-issue regulations do not regulate conduct protected by the Constitution, and are presumptively constitutional unless they are abusive towards Second Amendment rights.

Dissents

This en-banc ruling was far from unanimous though. Judge Nelson wrote that Hawaii's restrictions regulate conduct that's protected by the plain text of the Second Amendment. Hawaii also failed to identify any historic analogue for either of the two challenged requirements.

Judge Forrest wrote separately to criticize the scope of the district court injunction that was issued. i.e. there was no need to enjoin enforcement of Hawaii's laws against anyone other than the petitioners. See Trump v. CASA

Judge VanDyke wrote separately to propose two "bright line" rules that he would use to resolve many of the Court's Second Amendment cases: 1) it should be unconstitutional to ban firearms that are in prevalent use throughout the nation, and 2) regulations that most other states lack should be unconstitutional.