Ninth Circuit finds lower court missed the mark in Hawaii firearms regulation case

An en banc panel of the Ninth Circuit determined Hawaii's gun licensing rules are objective and non-abusive, making them presumptively constitutional.PASADENA, Calif. (CN) — An en banc panel of the Ninth Circuit on Tuesday reversed a lower court on Hawaii’s firearm licensing rules, finding they didn’t violate Second Amendment rights.The lower court in 2021 issued an injunction against two parts of the Hawaii’s gun licensing rules. The state could no longer void permits to obtain pistols or revolvers that hadn’t been used after 30 days. It also couldn’t require an applicant to present their firearm at a police station in some cases.Nine months after that ruling, the U.S. Supreme Court issued the landmark New York State Rifle & Pistol Association v. Bruen decision, which created a new test for determining Second Amendment claims. Courts must determine whether the Second Amendment’s plain text covers the conduct at issue. If it does, they then must decide if the challenged law is consistent with America’s history of regulating firearms.“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,” wrote U.S. Circuit Judge John Owens, a Barack Obama appointee, for the majority in the decision Tuesday.The en banc panel took up the case after a divided three-judge panel of the federal appeals court had found Hawaii’s shall-issue licensing scheme was unconstitutional. The en banc panel disagreed and reversed the lower court’s injunction.Writing for the majority, Owens looked through the lens of Bruen, a decision that hadn’t been issued when the lower court ruled in 2021. The judge said Bruen distinguished “shall-issue” licensing regimes from “may-issue.” A may-issue scheme gives authorities power to deny permits despite an applicant meeting certain criteria. The criteria of shall-issue schemes are limited to requirements like background checks and safety training.“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,” Owens said.Since Bruen, different judicial circuits have followed various legal pathways but reached the same spot: nondiscretionary, non-abusive shall-issue laws are constitutional, he added.The plaintiffs, Todd Yukutake and David Kikukawa, needed to show the 30-day deadline to buy a firearm and the police station inspection led to “abusive ends” and denied citizens of their Second Amendment rights, Owens said.“And while certain background checks, firearms safety courses, lengthy wait times, exorbitant fees, or other components of a shall-issue regime could trigger the Second Amendment’s protections, nothing in plaintiffs’ complaint suggests that either the thirty-day restriction or the police station inspection requirement crosses that line,” he added. “At most, the provisions impose only modest, procedural burdens.”Writing one of the three dissents, U.S. Circuit Judge Ryan Nelson called the majority’s analysis of shall-issue regimes “narrow.” Objective rules in a shall-issue scheme aren’t presumptively constitutional, and the burden to show a law is used abusively isn’t placed on the citizen, he said.Hawaii’s provisions have no relation to determining if a firearm applicant is a law-abiding and responsible citizen. Also, those provisions are only triggered once someone already has completed a background check and other requirements, the Donald Trump appointee added.“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,” Nelson said, adding: “Hawaii has only grown more intransigent in its ‘blatant defiance’ of the Supreme Court’s clear commands on the Second Amendment.”In another dissent, U.S. Circuit Judge Lawrence VanDyke pointed to what he called “brightline” rules he said could resolve many Second Amendment cases.The first rule would prohibit a state from banning a firearm product or use if it’s prevalent throughout the country. The second would make a firearm regulation that most other states don’t have unconstitutional.“Hawaii’s byzantine firearm-registration requirements are outliers,” VanDyke said. “Ergo, Hawaii shouldn’t be allowed to enforce them.”Noting the dissents, Owens in the majority opinion said he hoped the U.S. Supreme Court will determine which analysis is correct.Attorney Alan Beck, representing the plaintiffs, told Courthouse News in a statement that the Ninth Circuit decision contradicts Bruen and Wolford v. Lopez, a 2025 U.S. Supreme Court decision on Second Amendment rights.“I will be filing a writ of certiorari with the U.S. Supreme Court in short order,” he said.Representing the defendants, attorney Jo-Ann Sagar couldn’t immediately be reached for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads