Few courts have worked harder to wriggle out of the Supreme Court’s landmark 2022 decision in New York State Rifle & Pistol Association v. Bruen than the Ninth Circuit, and Tuesday’s en banc decision in Yukutake v. Lopez adds a new chapter. By a 6–5 vote, the court sided with Hawaii on two gun restrictions the majority itself concedes are “unique,” and it did so by trying to spin a single hedged footnote in Bruen into a safe harbor for so-called “shall-issue” gun laws.
Hawaii requires a permit just to acquire a handgun, even one that will never leave the owner’s home. To qualify for a permit, applicants must provide fingerprints, their social security number, and their mental health history, and undergo a background check. The plaintiffs, residents of Honolulu County, did not challenge any of that. They challenged what comes after a citizen has already proven he is law-abiding. First, the handgun permit is void unless it is used within 30 days (amended from a 10-day period in effect at the time the litigation began); otherwise the prospective gun purchaser must start the permitting process over from scratch. Second, the new owner must fill out a form with information about the firearm and, for certain acquisitions, bring it to a police station for inspection within five days of acquisition.
In 2021, before Bruen was handed down, the District of Hawaii struck down both provisions (including the 10-day permit validity period then in effect), which is remarkable under the circumstances. Judge J. Michael Seabright did so applying the Ninth Circuit’s old intermediate-scrutiny test, even though that test was so deferential that the government had racked up a 50–0 record on the appellate court. Seabright found that Hawaii “entirely failed to demonstrate” how either law advanced public safety. He also noted that Hawaii was “the only state in the country to require in-person inspection and registration of firearms.”
Bruen then established a standard more protective of the Second Amendment, and in 2025 a divided Ninth Circuit panel applied it to affirm the district court’s judgment. The en banc court reversed. The majority opinion by Judge John Owens invoked Bruen’s footnote 9, which said that nothing in the Court’s analysis should be read to suggest that 43 states’ “shall-issue” licensing regimes are unconstitutional. But the same footnote added that “any permitting scheme can be put toward abusive ends” and did “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.”
Owens treated the footnote as creating a presumption of constitutionality for shall-issue laws, with the challengers having to show “‘abusive ends’ that would effectively ‘deny ordinary citizens’ their Second Amendment rights.” Owens found no such showing for laws that he said “impose only modest, procedural burdens.”
As Judge Ryan Nelson observed in dissent, under the majority’s standard, a state could “append a novel post-approval restriction” to a background-check requirement, “call the combined statute ‘shall-issue,’ and require citizens to prove practical denial without identifying any historical basis.” That “runs afoul of Bruen and reduces the Second Amendment to ‘a second-class right.’” Under a “correct application of Bruen,” it was the state that had the burden to identify “a well-established and representative historical analogue,” and it did not do so for either challenged regulation. Footnote 9’s tentative wording, Nelson noted, marks it as “a limiting clarification, not a new doctrinal test.”
As Nelson explained, footnote 9 “only addresses ‘public carry’ regulations,” not acquiring a handgun for the home, the issue in this case. Hawaii’s laws, for their part, do not screen the applicant or guide the decision to issue a permit. They kick in only after the applicant has been vetted. Nor are they “longstanding”: The physical-inspection mandate dates to 2020 and the 30-day permit period to 2023.
Joining most or all of Nelson’s dissent were Judges Daniel Bress, Lawrence VanDyke, Bridget Bade, and Danielle Forrest. VanDyke added a dissent lamenting (not for the first time) “our court’s long campaign against the Second Amendment.” He marveled that after the government went undefeated in 50 Ninth Circuit “challenges before Bruen,” the same court would “develop a body of law less sympathetic to firearm-regulation challengers.” He predicted that “before too long, the name of this case will have a red flag next to it on Westlaw, just like so many of our court’s other Second Amendment cases do. But hopefully next time, when the Supreme Court plants that flag, it will do so with a little more bite than it has before.”
The upcoming Supreme Court term that will begin in ten days will include challenges to AR-15 bans in Viramontes v. Cook County and Grant v. Higgins. The Court should add Yukutake to its Second Amendment docket. The Ninth Circuit has again erred, this time by treating a footnote in a Supreme Court decision as a new standard for a broad swath of gun regulations, but it is far from alone in doing so. Judge Nelson’s dissent pointed out that the First, Fourth, Fifth, and Tenth Circuits have made the same mistake. He concluded, “Never has a single footnote in a Supreme Court opinion been so misread by so many lower courts to deny so many Americans their constitutional rights.” That should make this case even more urgent for Supreme Court consideration when it comes time for the plaintiffs to file a cert petition.