SAN FRANCISCO — Since the Heller Supreme Court decision in 2008, the Court of Appeals for the Ninth Circuit has granted en banc rehearing and vacated at least 10 published three-judge-panel decisions that substantially favored Second Amendment challengers.
By granting en banc rehearing, the court automatically vacated the panel opinion, and – when it reached the merits – ruled for the government, favoring the gun control position. (Nguyen v. Bonta was one of the exceptions.)
The September 22 decision issued by the en banc court, in Yukutake v. Lopez, continues that trend, with the court ruling 6-5 to reverse a district court injunction that a panel of the Ninth Circuit previously upheld in March of 2025.
The case addresses challenges to elements of Hawaii’s permitting scheme, including requirements that handgun permits expire after 30 days and that newly acquired firearms undergo police inspection.
Perhaps the best characterization and layman’s description of how the en banc court arrived at its disappointing conclusion came from Director of Legal Research and Education for the Second Amendment Foundation, Kostas Moros:
Based on the summary, the Ninth Circuit seems to be doing the thing where it just says any “shall issue” system is fine, so long as it isn’t “abusive.” And of course, the judges get to determine if it is abusive (interest balancing, yay!).
This is BS and against what SCOTUS just said in Wolford….but, they have only themselves to blame for not cleaning up Bruen footnote 9. They gave the hack circuits an inch, and they are taking a mile.
Or, as the court’s summary of the ruling puts it:
The en banc court further wrote that despite a wide range of methodological approaches to assessing shall-issue regulations after Bruen, the circuit courts have converged on one unifying principle: non-abusive, shall-issue laws comport with the Second Amendment.
This publication has pointed out that each legal construction – even in defense of 2A rights – that departs from the simplicity of the original text provides additional loopholes that lower courts can use, and the en banc Ninth Circuit certainly does this here, presenting its decision as complying with Bruen, even though they reverse the burden of proof, which properly belongs to the government:
With the guidance of Bruen, the en banc court held that Hawaii’s shall-issue regime comports with the Second Amendment because plaintiffs failed to show that the two challenged provisions, which are presumptively lawful, have been put toward abusive ends that would effectively deny ordinary citizens their Second Amendment rights.
The summary goes on to add, “Rather, at most, the provisions impose only modest, procedural burdens, and do not materially impede Plaintiffs from acquiring firearms.”
Interestingly, the singular paragraph summarizing one of the dissents perfectly characterizes how the case should have been decided:
Dissenting, Judge R. Nelson, joined by Judges Bress and VanDyke, and joined except as to Part I-C by Judges Bade and Forrest, wrote that the majority incorrectly holds that footnote 9 of Bruen creates a “carve-out” or “safe harbor” from Second Amendment scrutiny, and is thus analytically distinct from Bruen’s framework. He wrote that the correct application of Bruen to Hawaii’s regulations makes this case straightforward. First, the Second Amendment’s plain text covers the acquisition of arms, and Hawaii’s statewide restrictions govern the process by which ordinary citizens take possession of handguns. Second, Hawaii has not identified a representative historical analogue for either its short permit use period or its acquisition-linked inspection mandate. Accordingly, because Hawaii has not carried the burden Bruen places on the government, the en banc court should have affirmed the district court’s judgment.
The en banc court reversed the injunction and remanded. There are very limited options for the plaintiffs within the Ninth Circuit, with an appeal to the Supreme Court being the most likely option.
