YUKUTAKE V. LOPEZ (9th Cir. 2026) (en banc) involves provisions of Hawaii's law:
1. That requires those who meet their standards for firearms purchase to then buy the gun within 30 days or start all over again, and,
2. Bring the gun to a police station within five days after acquisition for inspection.
The en banc decision upheld both provisions, claiming that footnote 9 of Bruen makes any shall-issue law presumptively constitutional:
As detailed infra, Bruen instructs courts to engage in a two-step inquiry: First, does the Second Amendment’s plain text cover the plaintiff’s conduct? And second, if so, is the legislation at issue consistent with the Nation’s historical tradition of firearm regulation? Id. at 24. Yet in a footnote, the Bruen Court included an apparent carve-out to this test: objective, non-abusive “shall-issue” licensing regimes are presumptively constitutional. Id. at 38 n.9.
As Judge Nelson's dissent observes:
But the majority incorrectly holds that footnote 9 of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), creates a “carve-out” or “safe harbor” from Second Amendment scrutiny, and is thus analytically distinct from Bruen’s framework. Maj. Op. 13, 18. Footnote 9 does not say that all objective regulations placed within a “shall issue” licensing regime are “presumptively constitutional.” Id. at 13. It only addresses “public carry” regulations not at issue here. Bruen, 597 U.S. at 38 n.9. And it does not shift to the citizen the burden to prove that a law governing protected conduct has been “put toward abusive ends.” Maj. Op. 17 (cleaned up). That interpretation violates Bruen’s clear command that it is the government’s burden to show that restrictions on the right to keep and bear arms are “consistent with the Nation’s historical tradition.” 597 U.S. at 24.
Instead, footnote 9 described non-abusive regulations to ensure that only “law-abiding, responsible citizens” were carrying handguns outside the home, preserved challenges when a permitting system denies citizens their right to carry, and concerned only longstanding licensing regimes. Id. at 38 n.9 (citation omitted).
Hawaii’s challenged provisions are something else. Hawaii requires purchasers of handguns to obtain a handgun-acquisition permit that is void unless the permittee completes the purchase within 30 days, and it requires persons acquiring certain firearms to bring them to a police station for physical inspection within five days of acquisition. Haw. Rev. Stat. §§ 134-2(e), 134-3(c). Neither regulation has anything to do with determining whether applicants are “‘law-abiding, responsible citizens’” eligible for licenses to “exercis[e] their Second Amendment right to public carry.” Bruen, 597 U.S. at 38 n.9 (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)). Indeed, the challenged laws operate after the applicant has completed a background check, firearms training course, and myriad other requirements—i.e., after he has proven himself a “lawabiding, responsible citizen”—and has been issued a permit to purchase (not carry) a handgun. And neither regulation was “longstanding” in 2022 when Bruen issued.
Nelson goes on to point out these laws did not develop based on public concerns about safety but as part of a not very subtle attempt to ignore Bruen:
This case is all the worse since the challenged laws appear to be part of Hawaii’s consistent and not-so-subtle attempts to end run around the Second Amendment, which suggests that these laws are abusive under footnote 9. See, e.g., Young v. Hawaii, 45 F.4th 1087, 1090–94 (9th Cir. 2022) (en banc) (O’Scannlain, J., dissenting); Teter v. Lopez, 76 F.4th 938, 942–43, 947–49 (9th Cir. 2023), reh’g en banc granted, opinion vacated, 93 F.4th 1150 (9th Cir. 2024), vacated as moot on reh’g en banc, 125 F.4th 1301 (9th Cir. 2025); State v. Wilson, 543 P.3d 440, 442 (Haw. 2024), abrogated by Wolford v. Lopez, 146 S. Ct. 2032, 2050 (2026). Hawaii has only grown more intransigent in its “blatant defiance” of the Supreme Court’s clear commands on the Second Amendment. Wilson v. Hawaii, 145 S. Ct. 18, 21 (2024) (Statement of Thomas, J., respecting the denial of certiorari) (citation omitted); cf. Granillo v. State, 593 P.3d 1, 28 (Haw. 2026) (accusing the U.S. Supreme Court of “[m]aking the country more dangerous with a Second Amendment unmoored from text or history and unrecognizable to the framers who wrote it”); id. (Bruen was “deadly jurisprudence,” and Wolford “show[ed] disdain for Hawai‘i’s constitutional traditions.”). But Hawaii’s “[m]erely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.” Wolford, 146 S. Ct. at 2050.
A correct application of Bruen to Hawaii’s regulations makes this case straightforward. First, the Second Amendment’s plain text covers the acquisition of arms. A person ordinarily cannot “keep” an arm without first acquiring it, and the law has long recognized that authorization of an act includes authorization of necessary predicate acts. Luis v. United States, 578 U.S. 5, 26 (2016) (Thomas, J., concurring in the judgment). Hawaii’s statewide restrictions govern the process by which ordinary citizens take possession of handguns; possession is the core conduct protected by the “right of the people to keep . . . Arms.” U.S. Const. amend. II (emphasis added). Second, Hawaii has not identified “a well-established and representative historical analogue” for either its short permit-use period or its acquisition-linked inspection mandate. Bruen, 597 U.S. at 30. Because Hawaii has not carried the burden Bruen places on the government, we should have affirmed the district court’s judgment. I respectfully dissent.
Oh and Judge Van Dyke's dissent is also powerful:
But in spite of the Court’s obvious efforts to instruct lower courts to enforce the Second Amendment, the Ninth Circuit has done precisely the opposite. That’s not a rhetorical statement: in this circuit, the Second Amendment safeguards less liberty now than it did in the wake of Heller.2 For Exhibit A on how things have changed in the wrong direction, look no further than the majority’s opening paragraph. The majority recalls that the district court “blocked the implementation of [Hawaii’s] firearm licensing regime on Second Amendment grounds” the year before Bruen was decided. Maj. Op. at 10. The legal basis for reversing that injunction, according to the majority, is the “guidance” that Bruen provided on “how courts should analyze ‘shall-issue’ regimes like Hawaii’s.” Id. I agree that Bruen changed the law. But if our court’s takeaway from Bruen is that Bruen changed the law to make it harder to mount a successful Second Amendment challenge, then somebody has seriously lost the plot.
