FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD YUKUTAKE; DAVID No. 21-16756
KIKUKAWA,
D.C. No.
Plaintiffs-Appellees, 1:19-cv-00578-JMS-RT
v.
ANNE E. LOPEZ, In her Official OPINION
Capacity as the Attorney General of
the State of Hawaii,
Defendant-Appellant,
and
CITY AND COUNTY OF
HONOLULU,
Defendant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted March 24, 2026
Pasadena, California
2 YUKUTAKE V. LOPEZ
Filed September 22, 2026
Before: Mary H. Murguia, Chief Judge, and Kim McLane
Wardlaw, Jacqueline H. Nguyen, John B. Owens, Ryan D.
Nelson, Bridget S. Bade, Daniel A. Bress, Danielle J.
Forrest, Lawrence VanDyke, Gabriel P. Sanchez and Holly
A. Thomas, Circuit Judges.
Opinion by Judge Owens;
Dissent by Judge R. Nelson;
Dissent by Judge Forrest;
Dissent by Judge VanDyke
SUMMARY*
Second Amendment
The en banc court reversed the district court’s injunction that blocked the implementation of the State of Hawaii’s
firearm licensing regime on Second Amendment grounds,
and remanded for further proceedings.
Hawaii is a “shall-issue” jurisdiction for firearm permits, meaning that as long as an applicant satisfies certain
requirements, they may obtain a firearm. This differs from a “may-issue” regime, where the State retains some discretion in deciding whether to issue a firearm license to an applicant.
*
This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
YUKUTAKE V. LOPEZ 3
Plaintiffs Todd Yukutake and David Kikukawa
challenged the constitutionality of two requirements of
Hawaii’s shall-issue regime: 1) Hawaii Revised Statutes
§ 134-2(e), which provides a narrow time window within
which to acquire a handgun after obtaining the requisite
permit; and 2) Hawaii Revised Statutes § 134-3, which
provides that once the applicant has obtained the firearm, a form with information about the firearm must be completed, and one must bring the firearm to a police station for
inspection in certain circumstances. The district court
granted summary judgment to Plaintiffs, concluding that the challenged aspects of both provisions were facially
unconstitutional under the Second Amendment and
permanently enjoined their enforcement.
After the injunction was entered, the Supreme Court
issued New York State Rifle & Pistol Ass’n v. Bruen, 597
U.S. 1 (2022), which outlined how courts should analyze
shall-issue regimes like Hawaii’s. While Bruen instructs
courts to engage in a two-step inquiry when evaluating
Second Amendment claims, the en banc court wrote that
Bruen distinguished shall-issue from may-issue regimes and, in footnote 9, included an apparent carve-out to the two-step test, providing that objective, non-abusive “shall-issue” licensing regimes are presumptively constitutional. 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.
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 4 YUKUTAKE V. LOPEZ
been put toward abusive ends that would effectively deny
ordinary citizens their Second Amendment rights. Rather, at most, the provisions impose only modest, procedural
burdens, and do not materially impede Plaintiffs from
acquiring firearms.
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.
Dissenting, Judge Forrest joined all but Part I–C of Judge Nelson’s opinion explaining the problems with the
majority’s approach and wrote separately to address the
scope of the injunction issued. Judge Forrest would have
affirmed the district court on the merits and remanded with instructions for the district court to narrow its permanent injunction in light of Trump v. CASA, Inc., 606 U.S 831
(2025), because there is no need to enjoin enforcement of Hawaii’s challenged laws against anyone other than
Plaintiffs to afford Plaintiffs complete relief.
YUKUTAKE V. LOPEZ 5
Dissenting, Judge VanDyke proposed two “bright-line”
rules that he believes could resolve a large part of this court’s Second Amendment cases and accord with Supreme Court
precedent: (1) if a firearm product or usage that a state seeks to ban is currently prevalent throughout our nation, then it should simply be unconstitutional to ban it; and (2) if a state has a firearm regulation that most other states don’t have, then the regulation should be unconstitutional. Applying
these bright-line rules, Judge VanDyke would hold that
because the challenged regulations here are outliers, they are unconstitutional.
COUNSEL
Alan A. Beck (argued), Law Offices of Alan Beck, San
Diego, California; Stephen D. Stamboulieh, Stamboulieh
Law PLLC, Olive Branch, Mississippi; for PlaintiffsAppellees.
Jo-Ann T. Sagar (argued), Kristen Love I, Reedy C.
Swanson, Natalie J. Salmanowitz, Eric S. Roytman-Cash,
and Ryan M. Campbell, Hogan Lovells Cadwalader US
LLP, Washington, D.C.; Robert T. Nakatsuji First Deputy
Solicitor General; Caron M. Inagaki and Kendall J. Moser, Deputy Attorneys General; Kaliko’onālani D. Fernandes and Kimberly T. Guidry, Solicitors General; Anne E. Lopez and Holly T. Shikada, Hawaii Attorneys General; Office of the Hawai’i Attorney General, Honolulu, Hawai’i; for
Defendants-Appellants.
Kevin O’Grady, Law Office of Kevin O’Grady LLC,
Honolulu, Hawai’i, for Amicus Curiae Hawai’i Rifle
Association.
6 YUKUTAKE V. LOPEZ
Donald E.J. Kilmer Jr., Law Offices of Donald Kilmer,
Caldwell, Idaho, for Amici Curiae The Second Amendment
Foundation and The Madison Society Foundation, Inc..
Erin M. Erhardt and Michael T. Jean, National Rifle
Association of America, Institute for Legislative Action, Fairfax, Virginia, for Amicus Curiae National Rifle
Association of America, Inc..
Jeremiah L. Morgan, William J. Olson, and Robert J. Olson, William J. Olson PC, Vienna, Virginia; Rick Boyer,
Integrity Law Firm PLLC, Lynchburg, Virginia; John I.
Harris, Schulman Leroy & Bennett PC, Nashville,
Tennessee; Joseph W. Miller, Law Offices of Joseph Miller LLC, Fairbanks, Alaska; for Amici Curiae Gun Owners of
America, Gun Owners Foundation, Gun Owners of
California, Tennessee Firearms Association, Tennessee
Firearms Foundation, Virginia Citizens Defense League,
Virginia Citizens Defense Foundation, Coalition of New
Jersey Firearm Owners, Connecticut Citizens Defense
League, Heller Foundation, Oregon Firearms Federation,
Grass Roots North Carolina, America’s Future Inc., U.S.
Constitutional Rights Legal Defense Fund, Conservative
Legal Defense and Education Fund, and Restoring Liberty
Action Committee.
Ian Simmons, David K. Roberts, Catherine A. Ward, Arjun
A. Shenoy, and Danielle N. Siegel, O'Melveny & Myers
LLP, Washington D.C., for Amici Curiae Brady Center to
Prevent Gun Violence, Everytown for Gun Safety, and
Giffords Law Center to Prevent Gun Violence.
Konstadinos T. Moros, Second Amendment Foundation,
Bellevue, Washington, for Amici Curiae Second
Amendment Foundation, California Rifle & Pistol
Association Inc., and Second Amendment Law Center Inc..
YUKUTAKE V. LOPEZ 7
Barry K. Arrington, Arrington Law Firm, Wheat Ridge,
Colorado, for Amicus Curiae National Association for Gun
Rights.
Mark G. Sands, Assistant Attorney General; Donald S.
McGehee, Division Chief; Christopher M. Allen, Assistant
Solicitor General; Ann M. Sherman, Solicitor General; Dana Nessel, Michigan Attorney General; Office of the Michigan Attorney General, East Lansing, Michigan; Rob Bonta,
California Attorney General, Office of the California
Attorney General, Sacramento, California; William Tong,
Connecticut Attorney General, Office of the Connecticut
Attorney General, Hartford, Connecticut; Philip J. Weiser, Colorado Attorney General, Office of the Colorado Attorney General, Denver, Colorado; Brian L. Schwalb, District of
Columbia Attorney General, Office of the District of
Columbia Attorney General, Washington, D.C.; Kathleen
Jennings, Delaware Attorney General, Office of the
Delaware Attorney General, Wilmington, Delaware;
Kwame Raoul, Illinois Attorney General, Office of the
Illinois Attorney General, Chicago, Illinois; Aaron M. Frey, Maine Attorney General, Office of the Maine Attorney
General, Augusta, Maine; Anthony G. Brown, Maryland
Attorney General, Office of the Maryland Attorney General, Baltimore, Maryland; Keith Ellison, Minnesota Attorney
General, Office of the Minnesota Attorney General, St. Paul, Minnesota; Andrea J. Campbell, Massachusetts Attorney
General, Office of the Massachusetts Attorney General,
Boston, Massachusetts; Matthew J. Platkin, New Jersey
Attorney General, Office of the New Jersey Attorney
General, Trenton, New Jersey; Letitia James, New York
Attorney General, Office of the New York Attorney General, New York, New York; Dan Rayfield, Oregon Attorney
General, Office of the Oregon Attorney General, Salem,
8 YUKUTAKE V. LOPEZ
Oregon; Peter F. Neronha, Rhode Island Attorney General,
Office of the Rhode Island Attorney General, Providence,
Rhode Island; Charity R. Clark, Vermont Attorney General, Office of the Vermont Attorney General, Montpelier,
Vermont; Nicholas W. Brown, Washington Attorney
General, Office of the Washington Attorney General,
Olympia, Washington; for Amici Curiae States of Michigan, California, Colorado, Connecticut, Delaware, Illinois,
Maine, Maryland, Massachusetts, Minnesota, New Jersey,
New York, Oregon, Rhode Island, Vermont, Washington,
and the District of Columbia.
Erin E. Murphy, Paul D. Clement, Matthew D. Rowen, and
Nicholas A. Aquart, Clement & Murphy PLLC, Alexandria,
Virginia; Lawrence G. Keane and Shelby B. Smith, National Shooting Sports Foundation Inc., Washington, D.C.; for
Amicus Curiae National Shooting Sports Foundation, Inc..
Michael T. Jean, U.S. Sportsmen's Alliance Foundation,
Columbus, Ohio, for Amicus Curiae U.S. Sportsmen's
Alliance Foundation.
Sean Corkery, Assistant Solicitor General; Alan M. Hurst, Solicitor General; Raúl R. Labrador, Idaho Attorney
General; Office of the Idaho Attorney General, Boise, Idaho; Steve Marshall, Alabama Attorney General, Office of the
Alabama Attorney General, Montgomery, Alabama;
Stephen J. Cox, Alaska Attorney General, Office of the
Alaska Attorney General, Anchorage, Alaska; Tim Griffin,
Arkansas Attorney General, Office of the Arkansas Attorney General, Little Rock, Arkansas; James Uthmeier, Florida
Attorney General, Office of the Florida Attorney General, Tampa, Florida; Christopher M. Carr, Georgia Attorney
General, Office of the Georgia Attorney General, Atlanta, Georgia; Theodore E. Rokita, Indiana Attorney General,
YUKUTAKE V. LOPEZ 9
Office of the Indiana Attorney General, Indianapolis,
Indiana; Brenna Bird, Iowa Attorney General; Office of the Iowa Attorney General, Des Moines, Iowa; Lynn Fitch,
Mississippi Attorney General, Office of the Mississippi
Attorney General, Jackson, Mississippi; Kris W. Kobach,
Kansas Attorney General, Office of the Kansas Attorney
General, Topeka, Kansas; Liz Murrill, Louisiana Attorney
General, Office of the Louisiana Attorney General, Baton
Rouge, Louisiana; Michael T. Hilgers, Nebraska Attorney
General, Office of the Nebraska Attorney General, Lincoln, Nebraska; Keith G. Kautz, Wyoming Attorney General,
Office of the Wyoming Attorney General, Cheyenne,
Wyoming; Catherine L. Hanaway, Missouri Attorney
General, Office of the Missouri Attorney General, Jefferson City, Missouri; Austin Knudsen, Montana Attorney General, Office of the Montana Attorney General, Helena, Montana;
Russell Coleman, Kentucky Attorney General, Office of
Kentucky Attorney General, Frankfort, Kentucky; Dave
Yost, Ohio Attorney General, Office of the Ohio Attorney
General, Columbus, Ohio; Drew H. Wrigley, North Dakota
Attorney General, Office of the North Dakota Attorney
General, Bismarck, North Dakota; Alan Wilson, South
Carolina Attorney General, Office of the South Carolina
Attorney General, Columbia, South Carolina; Marty
Jackley, South Dakota Attorney General, Office of the South Dakota Attorney General, Pierre, South Dakota; Ken
Paxton, Texas Attorney General, Office of the Texas
Attorney General, Austin, Texas; Derek Brown, Utah
Attorney General, Office of the Utah Attorney General, Salt Lake City, Utah; John B. McCuskey, West Virginia
Attorney General, Office of the West Virginia Attorney
General, Charleston, West Virginia; Steve Montenegro,
Speaker of the Arizona House of Representatives, Phoenix, 10 YUKUTAKE V. LOPEZ
Arizona; Warren Peterson, President of the Arizona Senate, Phoenix, Arizona; for Amicus Curiae Idaho, Alabama,
Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana,
Nebraska, North Dakota, Ohio, South Carolina, South
Dakota, Texas, Utah, West Virginia, Wyoming, and the
Arizona Legislature.
OPINION
OWENS, Circuit Judge:
The State of Hawaii appeals from a 2021 injunction that
blocked the implementation of its firearm licensing regime on Second Amendment grounds. After the injunction was
entered, the Supreme Court issued New York State Rifle &
Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), which outlined how courts should analyze “shall-issue” regimes like Hawaii’s. With the benefit of Bruen’s guidance, we hold that Hawaii’s shall-issue regime comports with the Second Amendment,
and we reverse the district court and remand for further
proceedings.
I. BACKGROUND
A. Hawaii’s Shall-Issue Firearm Regulation Regime
Like most States, Hawaii is a so-called “shall-issue”
jurisdiction for firearm permits. See Haw. Rev. Stat. Ann. § 134-2(a)–(e) (mandating that authorities “shall issue”
firearm permits to applicants who satisfy specified criteria). As long as an applicant satisfies certain requirements, they may obtain a firearm—Hawaii does not retain any discretion to block their efforts. See id. § 134-2. These requirements are “narrow, objective, and definite.” Bruen, 597 U.S. at 38
YUKUTAKE V. LOPEZ 11
n.9 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147,
151 (1969)). This differs from a “may-issue” regime, where the State “retains some discretion in deciding whether to issue a firearm license to an applicant.” Md. Shall Issue, Inc. v. Moore, 116 F.4th 211, 216 (4th Cir. 2024) (en banc), cert. denied, 145 S. Ct. 1049 (2025) (comparing “may-issue” with “shall-issue” licensing schemes).
As part of its shall-issue regime, Hawaii requires an
applicant to provide, among other things, their fingerprints, social security number, and mental health history to the
police before obtaining a firearms permit. Haw. Rev. Stat. Ann. § 134-2(b). These requirements, which are
commonplace in shall-issue jurisdictions, are not challenged here.
However, as part of its shall-issue regime, Hawaii has
two unique requirements that are at issue. The first
requirement provides: “Permits issued to acquire any pistol or revolver shall be void unless used within thirty days after the date of issue.” Id. § 134-2(e). And if the permit becomes void, the applicant must restart the permitting process. See id.
The second requirement comes into play once the
applicant has obtained the firearm. After completing a form with information about the firearm (such as its caliber, serial number, and manufacturer), one must bring the firearm to a police station for inspection in certain circumstances. Id. § 134-3(b)–(c).
B. This Litigation
Todd Yukutake and David Kikukawa (“Plaintiffs”),
residents of Honolulu County, challenged these laws in
12 YUKUTAKE V. LOPEZ
federal court.1 As for § 134-2(e), they alleged that although Yukutake received the necessary permit for a handgun, he
was unable to obtain the firearm within the governing time limit and thus had to initiate a new application. As for § 134-3, Plaintiffs contended that requiring them to bring their firearms to a police station for inspection forces them to take time off from work and wastes the time of both the registrant and the police. Accordingly, Plaintiffs alleged that § 134-2(e) and § 134-3 violated their Second Amendment rights.
The parties filed cross-motions for summary judgment.
In August 2021, the district court granted summary judgment to Plaintiffs. See Yukutake v. Conners, 554 F. Supp. 3d 1074, 1090 (D. Haw. 2021). The court, applying intermediate
scrutiny under then-applicable circuit precedent, facially
1
Plaintiffs challenged the prior versions of § 134-2(e) and § 134-3(c), but the controversy remains live. Under the prior version of § 134-2(e), the validity period for a handgun acquisition permit was ten rather than thirty days. And under the prior version of § 134-3, virtually all firearms acquired pursuant to § 134-2 were subject to an in-person inspection requirement at registration. Now, that requirement is limited to firearms acquired through private party transfers, certain self-manufactured or three-dimensional-printed firearms, and firearms brought into Hawaii from another jurisdiction. See id. § 134-3(a)–(c).
During this litigation, the State contended that these
amendments mooted the case, and the three-judge panel disagreed. See Yukutake v. Lopez, 130 F.4th 1077, 1082–84 (9th Cir. 2025), vacated, 144 F.4th 1119 (9th Cir. 2025). We continue to hold that the controversy remains live, as the amended provisions remain sufficiently similar to the prior versions that the alleged constitutional defects have not been eliminated. See Teter v. Lopez, 125 F.4th 1301, 1307 (9th Cir. 2025) (en banc) (holding that an amendment to a statutory provision does not moot a challenge to that provision if the amended provision is “substantially similar” to the original provision regarding the alleged constitutional defect (quoting Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1197 (9th Cir. 2019) (en banc))).
YUKUTAKE V. LOPEZ 13
invalidated both requirements. Id. at 1080 & n.6. The court concluded that there was no reasonable fit between the law’s stated objective of promoting public safety and the ten-day permit use period imposed by § 134-2(e). Id. at 1086. The court similarly held that § 134-3’s in-person inspection and registration requirements did not survive intermediate
scrutiny. The court permanently enjoined the enforcement
of both provisions. Id. at 1090–91.2
Nine months later, in Bruen, the U.S. Supreme Court
rejected the then-existing framework for evaluating Second Amendment claims in favor of a history and tradition test. See 597 U.S. at 17–24. 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.
At odds with every other circuit court to analyze shallissue laws after Bruen, a divided three-judge panel of this court held that Hawaii’s shall-issue regime is
unconstitutional. See Yukutake, 130 F.4th at 1104. The
majority concluded that the acquisition of firearms is
conduct protected by the Second Amendment’s plain text
because the right to keep and bear arms necessarily includes
2
In a subsequent September 2021 order, the district court clarified that the permit-use period requirement and the in-person inspection and registration requirement were severable from the rest of the provisions, and that the court had invalidated neither § 134-2 nor § 134-3 entirely. Yukutake v. Connors, 2021 WL 4342320, at *1 (D. Haw. 2021). 14 YUKUTAKE V. LOPEZ
the right to acquire them. See id. at 1092. In the majority’s view, Hawaii’s laws did not pass constitutional muster under Bruen footnote 9. Id. at 1096–98. The panel therefore
affirmed the district court’s judgment and remanded for
revision of the injunction in light of Hawaii’s intervening statutory amendments. Id. at 1104.
Drawing parallels to permitting systems in the First
Amendment context, Judge Collins, writing only for
himself, reasoned that the challenged Hawaii laws were
insufficiently tailored and therefore abusive. Id. at 1095–99.
Judge Lee concurred in full except for Judge Collins’s
discussion of Bruen footnote 9. Id. at 1104–08 (Lee, J.,
concurring). In his view, the case could be resolved solely through Bruen’s text-and-history methodology, as Hawaii
failed to identify a sufficient historical analogue for the challenged restrictions. Id. at 1108 (Lee. J., concurring). He cautioned against reading Bruen footnote 9 to authorize any form of means-end scrutiny. Id.
Judge Bea dissented. Id. at 1108 (Bea, J., dissenting).
He maintained that the acquisition of a firearm is not itself conduct that the plain text of the Second Amendment
protects. Id. at 1109 (Bea, J., dissenting). In his view, the challenged provisions were merely ancillary regulations
governing the manner of obtaining firearms. Id. at 1109,
1116 (Bea, J., dissenting). He would have reversed the
district court’s judgment and vacated the injunction. Id. at 1110 (Bea, J., dissenting).
Our court granted rehearing en banc. See Yukutake, 144
F.4th at 1119.
YUKUTAKE V. LOPEZ 15
II. DISCUSSION
When considering a Second Amendment challenge to
firearm laws, courts generally begin with three modern
Supreme Court decisions: District of Columbia v. Heller,
554 U.S. 570 (2008), Bruen, 597 U.S. 1; and United States v. Rahimi, 602 U.S. 680 (2024). In Heller, the Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense, regardless of militia service.3 See 554 U.S. at 595. Fourteen years later, Bruen established the two-step framework—focused on text,
history, and tradition—for evaluating firearm regulations under the Second Amendment. See 597 U.S. at 24. And in
Rahimi, the Court clarified that Bruen does not require a rigid search for historical twins and instead permits a more nuanced analogical inquiry, which “involves considering
whether the challenged regulation is consistent with the
principles that underpin our regulatory tradition.” 602 U.S. at 692.
So what does Bruen’s two-step inquiry require? At step
one, a court asks whether the Second Amendment’s plain
text covers an individual’s conduct. See Bruen, 597 U.S. at 24. If so, the Constitution presumptively protects that
conduct, and the government bears the burden at step two of demonstrating that its regulation is consistent with the
Nation’s historical tradition of firearm regulation.4 Id. If the
3
McDonald v. City of Chicago held that the Second Amendment right recognized in Heller applies to the states through the Fourteenth Amendment. 561 U.S. 742, 791 (2010).
4
The proper time frame at which to consider the Nation’s history and tradition remains unclear, as the Court has repeatedly declined to decide “whether courts should primarily rely on the prevailing understanding of an individual right” at the time of the ratification of the Bill of Rights, in 16 YUKUTAKE V. LOPEZ
government cannot make that showing at step two, the
challenged law is unconstitutional. Id. In Bruen, the Court struck down New York’s public carry licensing requirement because the State had failed at step two to demonstrate that its discretionary licensing regime was consistent with the Nation’s history and tradition. 597 U.S. at 70–71. In
Rahimi, the Court upheld a federal provision, 18 U.S.C.
§ 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing a firearm after a judicial finding that they pose a credible threat. 602 U.S. at 698–700. The Court concluded at step two that the law was sufficiently analogous to historical provisions that permitted the disarmament of dangerous individuals. Id.
Yet the Court in Bruen took care to distinguish shallissue from may-issue regimes. May-issue regimes, like the handgun permit regulation at issue in Bruen, are
constitutionally suspect because they grant authorities the discretion to deny licenses and permits even after applicants satisfy objective criteria. See Bruen, 597 U.S. at 13–14. Shall-issue laws, by contrast, generally require applicants to satisfy only objective criteria, like background checks and firearm safety training, and are designed to ensure that those bearing arms are “law-abiding, responsible citizens.” Id. at 38 n.9 (quoting Heller, 554 U.S. at 635). Unless a shall-issue law is “put toward abusive ends,” such as through “lengthy” processing delays or “exorbitant fees” that effectively deny
1791, or at the time of the Fourteenth Amendment’s ratification, in 1868. Bruen, 597 U.S. at 37–38 (declining to address the issue because “the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry”); accord United States v. Hemani, 146 S. Ct. 1677, 1687 n.3 (2026).
YUKUTAKE V. LOPEZ 17
ordinary citizens their Second Amendment rights, it is
presumptively constitutional. Id.
Justice Kavanaugh, joined by Chief Justice Roberts,
underscored this point in his concurrence. See id. at 79–80 (Kavanaugh, J., concurring). He emphasized that Bruen
addressed only discretionary, may-issue licensing systems and did not call into question the constitutionality of
objective, shall-issue regimes that employ background
checks, fingerprinting, mental-health record checks, and
firearm training requirements. Id. In his view, those systems remain constitutionally permissible so long as they operate as “objective licensing requirements” without granting
“open-ended discretion to licensing officials.” Id. at 80. In its subsequent jurisprudence featuring shall-issue regimes, the Court has not altered its “abusive ends” test. See Wolford v. Lopez, 146 S. Ct. 2032 (2026).
Nor has the Court further clarified how to approach
shall-issue laws. Two years after Bruen, Rahimi
demonstrated that substantial disagreement remains about
what, precisely, Bruen requires courts to do. See Rahimi, 602 U.S. at 691 (“[S]ome courts have misunderstood the
methodology of our recent Second Amendment cases.”); see
id. at 743 (Jackson, J., concurring) (noting that after Bruen, “confusion plagu[es] the lower courts” (bracketing in
original)). The Court produced seven separate opinions,
which reflected different views concerning the proper level of generality for historical analogues, the role of historical evidence, and the extent to which courts may reason by
analogy. See, e.g., id. at 703–04 (Sotomayor, J., concurring) (urging that courts consider whether “the challenged
regulation is consistent with the principles that underpin our regulatory tradition”) (emphasis added); id. at 709 (Gorsuch, J., concurring) (arguing for a more precise analogue). And 18 YUKUTAKE V. LOPEZ
Rahimi offered no guidance on how lower courts should
relate Bruen footnote 9 to the two-step analysis.
This Second Amendment confusion, as detailed in
Rahimi, has spread to circuit courts that have analyzed
similar shall-issue laws. As the Tenth Circuit put it, “it is difficult to forecast how the Supreme Court would decide the issue, given the apparent tension between the Bruen two-step framework and the safe harbor list of presumptively lawful regulations.” Rocky Mountain Gun Owners v. Polis, 121
F.4th 96, 120 (10th Cir. 2024). Yet despite a wide range of methodological approaches to assessing shall-issue
regulations, the circuit courts have converged on one
unifying principle: non-abusive, shall-issue laws comport with the Second Amendment.
The First, Fourth, and Tenth Circuits have resolved
Bruen footnote 9’s indeterminacy largely at step one. The First Circuit, when reviewing Maine’s seventy-two-hour
cooling-off period, held that under Bruen, shall-issue
regulations “do[] not regulate conduct protected by the plain text of the Second Amendment” and are “presumptively
constitutional unless a challenger could show that they were abusive toward Second Amendment rights.” Beckwith v.
Frey, 171 F.4th 560, 570–71 (1st Cir. 2026). When
reviewing Maryland’s firearm laws, the Fourth Circuit held that “non-discretionary ‘shall-issue’ licensing laws are
presumptively constitutional and generally do not ‘infringe’ the Second Amendment right to keep and bear arms under
step one of the Bruen framework.” Md. Shall Issue, 116
F.4th at 222; see id. at 224 (noting that to skip to Bruen step two when analyzing shall-issue laws would “improperly
treat[] the plain text inquiry as a meaningless check-the-box exercise”); see also United States v. Speed, 175 F.4th 272, 286–87 (4th Cir. 2026) (upholding a federal regulation on
YUKUTAKE V. LOPEZ 19
silencers as a presumptively constitutional shall-issue
licensing law). Similarly, the Tenth Circuit upheld
Colorado’s shall-issue scheme because “laws imposing
conditions and qualifications on the sale and purchase of arms do not implicate the plain text of the Second
Amendment.” Rocky Mountain Gun Owners, 121 F.4th at
120.
By contrast, the Second Circuit proceeded through the
history and tradition inquiry at Bruen step two when
evaluating New York’s post-Bruen, shall-issue licensing
provisions. See Antonyuk v. James, 120 F.4th 941, 998 (2d Cir. 2024). The court concluded that the provisions were
constitutionally permissible by drawing an analogy to premodern surety laws. Id.
The Fifth Circuit, in rejecting a challenge to federal
background check procedures for dealer transfers, did not focus on a particular step in the Bruen framework. See
McRorey v. Garland, 99 F.4th 831, 837 (5th Cir. 2024). It instead emphasized that Bruen’s footnote 9 preserves the
constitutionality of objective conditions on commercial
firearm sales and background checks that are designed to
ensure that firearms are acquired by law-abiding citizens, and did not engage in a full analysis of steps one and two. Id.; see also United States v. Peterson, 161 F.4th 331, 338– 39 (5th Cir. 2025) (upholding the suppressor licensing
regime of the National Firearms Act (“NFA”) as a shall-issue law under Bruen footnote 9). But see United States v.
Comeaux, 179 F.4th 297, 302 (5th Cir. 2026) (holding that the plaintiff’s challenge to the NFA’s silencer regime failed at Bruen’s first step, as the challenged provision is a
presumptively constitutional, non-abusive, shall-issue law under footnote 9, so no step two historical analysis was
required). Similarly, we have upheld the NFA’s regulation 20 YUKUTAKE V. LOPEZ
of silencers as presumptively constitutional under Bruen
footnote 9. See United States v. DeBorba, 177 F.4th 1005, 1012 (9th Cir. 2026). In DeBorba, we analyzed the Bruen
footnote 9 presumption of constitutionality as analytically distinct from the step one and step two inquiry. Id.
Despite these cases’ different paths, they share a
common destination: non-discretionary, objective, and nonabusive shall-issue laws, especially those involving
background checks, firearm training, fingerprinting, or other ordinary eligibility requirements, pass constitutional muster under Bruen footnote 9.
Today, we follow the lead of the McRorey, Petersen, and
DeBorba courts. When analyzing a ten-day background
check, the Fifth Circuit in McRorey did not undertake an
extensive discussion of historical analogues and the like. McRorey, 99 F.4th at 837. This approach is prudent, as
Bruen footnote 9 never asked the lower courts to subject
shall-issue regulations to history-and-tradition analyses. Indeed, the Fifth Circuit took the Supreme Court at its word that a shall-issue regime with background checks is
presumptively lawful. Id. at 836–39. The court then
addressed whether the plaintiffs had rebutted that
presumption of lawfulness by showing that the regulations had been “put towards abusive ends.” Id. at 839–40. And
because the plaintiffs could not make that showing, the Fifth Circuit rejected the challenge. Id.
Ultimately, we need not decide the bedeviling question
of whether this is a step one or step two case under Bruen. We also need not—and should not—chart the entire
constellation of possible shall-issue laws that one could draft or challenge. As the Fifth Circuit did in McRorey, we instead ask whether Plaintiffs have shown that the two
YUKUTAKE V. LOPEZ 21
presumptively lawful requirements in question—the thirtyday purchase provision and the police station inspection
requirement—have been put toward “abusive ends” that
would effectively “deny ordinary citizens” their Second
Amendment rights. Bruen, 597 U.S. at 38 n.9.
Plaintiffs in this case have failed to make that showing. Cf. Md. Shall Issue, Inc., 116 F.4th at 227–29 (holding that Maryland’s comprehensive background check regime is
permissible under Bruen and not abusive); McRorey, 99
F.4th at 836, 839–40 (noting that standard requirements such as background checks, “especially when not at all lengthy,” are not abusive for purposes of Bruen footnote 9); Peterson, 161 F.4th at 340–42 (holding that no evidence indicated that the challenged NFA provision was abusive as applied to the plaintiff). 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. At most, the provisions impose only modest, procedural burdens. They
require compliance with a reasonable deadline and, for
firearms that fall into the categories set out in § 134-3(a)– (c), see supra note 1, a brief administrative visit to verify basic information. They do not materially impede Plaintiffs from acquiring firearms. Even in light of Hawaii’s
distinctive tradition of heightened firearm regulation, which the Supreme Court has viewed with skepticism, see Wolford, 146 S. Ct. at 2040, 2046, the requirements at issue here are not abusive.
Cases like this one threaten to unleash countless,
consequential questions about our Second Amendment
jurisprudence. For example: What does “infringe” mean for 22 YUKUTAKE V. LOPEZ
Second Amendment purposes? Or “meaningfully constrain”? See, e.g., B&L Prods., Inc. v. Newsom, 104 F.4th 108, 118–19 (9th Cir. 2024). Those important inquiries will await another day. Judge R. Nelson’s dissent—which
acknowledges that our holding is consistent with other courts applying Bruen—thoughtfully presents a different take on
footnote 9. And Judge VanDyke shares, as only he can, his Second Amendment worldview. Like the vast majority of
courts reviewing footnote 9, we respectfully disagree with both of them. Hopefully, the Supreme Court will make clear which analysis it thinks is correct.
REVERSED AND REMANDED.
R. NELSON, Circuit Judge, with whom BRESS and
VANDYKE, Circuit Judges, join, and with whom BADE
and FORREST, Circuit Judges, join except as to Part I–C,
dissenting:
The majority offers a narrow analysis of the Second
Amendment precedent on shall-issue licensing regimes. It
correctly acknowledges that “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.” Maj. Op. 21.
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 “shallissue” licensing regime are “presumptively constitutional.”
YUKUTAKE V. LOPEZ 23
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.
24 YUKUTAKE V. LOPEZ
Footnote 9 did not create a gaping Second Amendment
exemption for states to exploit with new creative restrictions that would otherwise fail Bruen’s test. The majority—like most lower courts—fails to grasp (or even acknowledge)
these differences. 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. The
statements in footnote 9 are not the genesis of a different constitutional framework; they show merely how the
framework the Court has established might be applied in
particular circumstances.
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
YUKUTAKE V. LOPEZ 25
“[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.1
I
The majority improperly side-steps the governing rule.
“When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively
protects that conduct.” Id. at 24. The government must then “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
1
I agree that this appeal is not moot. See Maj. Op. 12 n. 1. 26 YUKUTAKE V. LOPEZ
Id. The order matters. So does the allocation of burdens. The Second Amendment’s text determines whether the
presumption of protection attaches; history and tradition determine whether the government has rebutted it. Id. at 17, 19, 24. Courts may not insert a freestanding means-end
inquiry before or between those questions. Id. at 19–24. It strains credulity to interpret footnote 9 as creating a separate “carve-out” or “safe harbor” from Bruen’s overarching
approach. Maj. Op. 13, 18.
Bruen guides our analysis. And we err when we cast
aside Bruen’s holdings for a few clarifying statements in one of its thirty-two footnotes. Footnote 9 does not address—let alone control—this case.
A
Situated in the Supreme Court’s step two discussion,
footnote 9 provides in full:
To be clear, nothing in our analysis should be
interpreted to suggest the unconstitutionality
of the 43 States’ “shall-issue” licensing
regimes, under which “a general desire for
self-defense is sufficient to obtain a
[permit].” Drake v. Filko, 724 F.3d 426, 442
(CA3 2013) (Hardiman, J., dissenting).
Because these licensing regimes do not
require applicants to show an atypical need
for armed self-defense, they do not
necessarily prevent “law-abiding,
responsible citizens” from exercising their
Second Amendment right to public carry.
District of Columbia v. Heller, 554 U.S. 570,
635 (2008). Rather, it appears that these
YUKUTAKE V. LOPEZ 27
shall-issue regimes, which often require
applicants to undergo a background check or
pass a firearms safety course, are designed to
ensure only that those bearing arms in the
jurisdiction are, in fact, “law-abiding,
responsible citizens.” Ibid. And they
likewise appear to contain only “narrow,
objective, and definite standards” guiding
licensing officials, Shuttlesworth v.
Birmingham, 394 U.S. 147, 151 (1969),
rather than requiring the “appraisal of facts,
the exercise of judgment, and the formation
of an opinion,” Cantwell v. Connecticut, 310
U.S. 296, 305 (1940)—features that typify
proper-cause standards like New York’s.
That said, 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.
Bruen, 597 U.S. at 38 n.9. At the outset, footnote 9 addresses public-carry licensing, not every objective regulation
touching firearms. The circuit courts that have read it as the latter have overread and misapplied the Supreme Court’s
guidance. See, e.g., Beckwith v. Frey, 171 F.4th 560, 570– 71 (1st Cir. 2026); Md. Shall Issue, Inc. v. Moore, 116 F.4th 211, 216 (4th Cir. 2024) (en banc); McRorey v. Garland, 99 F.4th 831, 837 (5th Cir. 2024); United States v. DeBorba, 177 F.4th 1005, 1012 (9th Cir. 2026); Rocky Mountain Gun
Owners v. Polis, 121 F.4th 96, 120 (10th Cir. 2024). In other 28 YUKUTAKE V. LOPEZ
words, the inferior courts are missing Bruen’s forest for a footnote’s trees.
The term “shall-issue” traditionally referred only to
concealed-carry permitting schemes. See, e.g., Jack Hagler Self Defense Act, ch. 87-24, 1987 Fla. Laws (codified as
amended at Fla. Stat. § 790.06 (2025)) (establishing the
shall-issue concealed-carry licensing regime widely credited as the model for subsequent state right-to-carry laws); Tyler R. Smotherman, More Rights, More Responsibilities: A
Post-Bruen Proposal for Concealed Carry Compromise,
2024 Wis. L. Rev. 343, 357–63 (2024) (describing the
evolution of public-carry laws in the United States and
juxtaposing “may-issue” permitting regimes with “shallissue” and “constitutional-carry” regimes).
Likewise, “shall-issue” was used in Bruen to distinguish
objective public-carry licensing regimes from New York’s
discretionary carry regime. See 597 U.S. at 13 & n.1, 38 & n.9. The question before the Court was whether New York
could require an applicant to demonstrate a special need for self-defense before carrying a concealed handgun in public. Id. at 10–15; see also id. at 72 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a
firearm or the requirements that must be met to buy a gun.”). The Court contrasted New York’s “may-issue” system with
43 states’ shall-issue regimes, in which a general desire for self-defense was sufficient to obtain a license to carry. Id. at 13, 38 n.9.
Lower courts have misunderstood footnote 9 and
expanded the term “shall-issue” to encompass all objective regulations on the purchase, possession, carry, or transfer of firearms. See, e.g., Md. Shall Issue, 116 F.4th at 222;
McRorey, 99 F.4th at 837. But the footnote expressly and
YUKUTAKE V. LOPEZ 29
repeatedly refers to “public carry,” “bearing arms,” and
licensing officials’ discretion over concealed-carry permit applications. Bruen, 597 U.S. at 38 n.9. Those features are not present in the laws Plaintiffs challenge.
This case concerns acquisition of handguns for simple
possession, including possession in the home, “where the
need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628–29. Plaintiffs do not challenge any aspect of Hawaii’s highly restrictive public-carry laws or permitting scheme. See Wolford, 146 S. Ct. at 2046 & n.9
(Hawaii has “a tight web of laws that severely restricts the carrying of firearms for self-defense.”). Nor do Plaintiffs challenge Hawaii’s myriad requirements (i.e., fingerprinting, mental-health disclosures, training courses, fees, and background checks) simply to purchase a firearm in the first place.
Plaintiffs’ claims target two additional rules: what
happens if an already qualified permittee does not complete a handgun purchase within 30 days, and what must occur
after certain firearms have been acquired. Haw. Rev. Stat. §§ 134-2(e), 134-3(c). Those rules are not carry-license
criteria. They have nothing to do with “guiding licensing officials” in the issuance of public-carry permits via
“narrow, objective, and definite standards.” Bruen, 597 U.S. at 38 n.9 (cleaned up). Therefore, Hawaii’s regulations—
which apply after an applicant has obtained a permit merely to possess a handgun in the home—are wholly outside the
ambit of footnote 9.
The distinction is not formalism. Public carry and home
possession have different historical traditions. See id. at 45– 70. For example, surety laws and laws banning carrying
weapons while intoxicated may illuminate regulation of
30 YUKUTAKE V. LOPEZ
public carry, but they would not automatically justify a
restriction on possessing a handgun in the home. See United States v. Connelly, 117 F.4th 269, 280 (5th Cir. 2024); cf. United States v. Hemani, 146 S. Ct. 1677, 1685, 1693 (2026) (focusing on mere possession of a gun inside the home).
Analogical reasoning requires courts to identify the conduct, burden, and justification at the correct level of specificity. Bruen, 597 U.S. at 30; United States v. Rahimi, 602 U.S.
680, 739–40 (2024) (Barrett, J., concurring) (discussing the importance of analogizing at the proper level of generality). Redefining “shall-issue” as a universal catch-all for all objective firearms licensing provisions—rather than a
specific type of public-carry-permit issuance regime—
collapses those distinctions. Footnote 9’s discussion of
“shall-issue” public-carry regimes does not speak to this case.
B
1
Regardless, reflexively invoking footnote 9 to bypass
Bruen’s framework is error. Footnote 9 is not a standard; it is a statement about the potential application of a standard. It neither creates any presumption of constitutionality for firearms regulations nor reverses the burden of proof Bruen places squarely on the government. Contra Maj. Op. 21.
Footnote 9 speaks only to the non-discretionary issuance of public-carry permits, and it is not a blanket blessing even of those. The Supreme Court simply clarified that “nothing in [the Court’s] analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” Bruen, 597 U.S. at 38 n.9. And why should it?
The Court in Bruen invalidated New York’s “may-issue”
law precisely because it gave authorities “discretion to deny
YUKUTAKE V. LOPEZ 31
concealed-carry licenses even when the applicant satisfies the statutory criteria.” Id. at 14–15, 71. So footnote 9 is just the Supreme Court explaining that Bruen should not be read to have held that shall-issue concealed-carry permitting
regimes are per se unconstitutional. It should not be
understood as having created a distinct ahistorical test
outside the Bruen framework.
The majority converts footnote 9’s cautious explanation
into a categorical presumption: once a provision is couched in terms of an objective “shall-issue regime,” the citizen must show that the provision is abusive enough to deny the right before Bruen’s ordinary text-and-history analysis
applies. Maj. Op. 19–21. That reading does not follow from the footnote’s language. Footnote 9 never says
“presumptively constitutional” or “presumptively lawful.” It does not identify a new, or different, standard of review. It does not say who bears the burden. And it does not instruct courts to bypass the historical inquiry when protected
conduct is regulated. Its repeated qualifications—“do not necessarily,” “often,” “appear,” and “do not rule out”—are the language of a limiting clarification, not a new doctrinal test. Bruen, 597 U.S. at 38 n.9.
Much of the confusion in the lower courts stems from the
assumption that footnote 9 provides an alternative mode of analysis to Bruen. It does not. Of course, some objective licensing requirements may be upheld under the proper
Bruen analysis. Background checks and training
requirements may be supported by historical traditions
permitting the government to ensure that those bearing arms are “law-abiding, responsible citizens,” id. at 70, and “well regulated” (i.e., trained and proficient) in the use of their firearms. U.S. Const. amend. II; see Heller, 554 U.S. at 597 (“[T]he adjective ‘well-regulated’ implies nothing more than 32 YUKUTAKE V. LOPEZ
the imposition of proper discipline and training.”); cf. Jones v. Bonta, 34 F.4th 704, 728 (9th Cir. 2022) (approving
“sensible” firearms regulations like “proper training”
requirements), reh’g granted, opinion vacated, 47 F.4th
1124 (9th Cir. 2022). If a challenged regulation falls within such a tradition, it is constitutional at Bruen step two. That result does not require relocating history into a virtually irrebuttable presumption at step one. Nor does it require a separate carve-out test that treats a statute’s “shall-issue” label as a substitute for examining the burden being
challenged.
At bottom, footnote 9 simply clarifies the limits of
Bruen’s holding in terms of how the Court’s established
framework may apply in particular circumstances. At most, it predicts how Bruen’s historical analysis would likely
shake out if ever applied to “narrow, objective, and definite standards” geared toward ensuring that those carrying
handguns are “law-abiding, responsible citizens.” 597 U.S. at 38 n.9 (citation omitted). It does not create a new test, analytical prong, or safe harbor from Bruen.
2
The majority reaches a different conclusion—finding
support largely in nonbinding judicial opinions. None
persuade.
i
The majority acknowledges the division among the
circuits and follows the Fifth Circuit’s approach in treating footnote 9 as an independent safe harbor. Maj. Op. 17–20; see McRorey, 99 F.4th at 836–37. But see Antonyuk v.
James, 120 F.4th 941, 998 (2d Cir. 2024) (proceeding
through Bruen step two when evaluating “shall-issue”
YUKUTAKE V. LOPEZ 33
regulation). The division among lower courts makes the
majority’s position understandable, but it does not make it correct. Start with the Fifth Circuit’s decision in McRorey, which concerned enhanced background checks for certain
purchasers aged 18–20 years old and a limited period in
which the government completed those checks. 99 F.4th at
834–36. As we explained in Nguyen v. Bonta when
distinguishing McRorey, the delay in McRorey served a
likely valid background-check purpose; in Nguyen, delay
itself was the point of the purchase restriction. 140 F.4th 1237, 1243 (9th Cir. 2025).
Hawaii’s laws are triggered after the background check
is complete, the permit has issued, and the permittee has been approved. Hawaii’s post-approval deadline is more
like the law we invalidated in Nguyen, where we held that a California law “categorically prohibiting citizens from
purchasing more than one firearm of any kind in a 30-day
period” violated the Second Amendment. Id. Such a law,
like Hawaii’s, “temporally meter[s] the exercise” of the right to keep arms because it controls the timing by which a
vetted, law-abiding citizen can legally obtain a firearm. Id. Both laws do nothing to ensure that gun owners are lawabiding and responsible; they merely force or prevent the acquisition of the gun within a set time period.
The Fourth Circuit’s decision in Maryland Shall Issue,
116 F.4th 211, is similarly distinguishable. Maryland’s law required a background investigation and safety training
before a license issued. Id. at 216–18. Whether or not that court correctly placed footnote 9 at step one of the Bruen test, it reviewed eligibility-related requirements of the kind the footnote identifies. Id. at 216–17, 222–23 (discussing Bruen, 597 U.S. at 38 n.9). It did not hold that every
34 YUKUTAKE V. LOPEZ
objective post-approval burden added to a firearms statute inherits a presumption of constitutionality. Id. at 222–23.
The majority also invokes decisions involving silencers
and the National Firearms Act. Maj. Op. 18–20. Those
cases raise distinct questions about the status of the regulated item, taxation and registration traditions, and the operation of the federal making-and-transfer regime. See United
States v. Speed, 175 F.4th 272, 286–87 (4th Cir. 2026);
United States v. Peterson, 161 F.4th 331, 338–39 (5th Cir. 2025). They do not establish that an acquisition deadline or police inspection of ordinary firearms are valid merely
because the surrounding statutory scheme is nondiscretionary.
As these decisions illustrate, courts cannot resolve
supposed ambiguity in a footnote by adopting a
methodology the opinion’s overall holding forecloses. The Supreme Court instructed that once the Second
Amendment’s text covers conduct, “the government must
affirmatively prove” the relevant historical tradition. Bruen, 597 U.S. at 19. We cannot reverse Bruen’s burden merely
because a challenged provision appears in the same statutory chapter as an unchallenged background check or training
requirement.
ii
Contrary to today’s majority opinion, Justice
Kavanaugh’s Bruen concurrence did not extend footnote 9.
To be sure, Justice Kavanaugh stated that “shall-issue
licensing regimes are constitutionally permissible.” Bruen, 597 U.S. at 80 (Kavanaugh, J., concurring). But like
footnote 9, Justice Kavanaugh was referring only to
“licensing requirements for carrying a handgun for selfdefense,” not to all manner of firearms regulations if they are
YUKUTAKE V. LOPEZ 35
“objective” in nature. Id. at 79. Justice Kavanaugh
emphasized that the Court did not prohibit states from
requiring licenses for public carry, and he described as
constitutionally permissible “existing” shall-issue licensing systems that required fingerprinting, background checks,
mental-health-record checks, and firearms training. Id. at 79–80. Those are the same eligibility-focused features the Court identified in footnote 9, none of which are at issue in this appeal.
Justice Kavanaugh took pains to distinguish the standard
vetting practices of “existing” shall-issue regimes from the features of “unusual” and “constitutionally problematic”
may-issue regimes. Id. The concurrence homes in on the
fact that New York’s may-issue licensing regime was an
“outlier”—distinct from “the existing licensing regimes . . . employed in 43 States.” Id. at 79. Hawaii’s laws are even more of an outlier and did not exist in their current form when Bruen was published.
Justice Kavanaugh quotes Heller’s language describing
certain “longstanding” laws as “presumptively lawful
regulatory measures.” Id. at 81 (quoting Heller, 554 U.S. at 626–27 & n.26). Yet Hawaii adopted its one-of-a-kind
physical-inspection mandate in 2020 and its current 30-day permit period in 2023 after Bruen. Act of Sept. 15, 2020, No. 74, 2020 Haw. Sess. Laws 479–83 (codified at Haw.
Rev. Stat. § 134-3); Act of June 2, 2023, No. 52, 2023 Haw. Sess. Laws 113–36 (codified at Haw. Rev. Stat. § 134-2). A concurrence defending “existing” and “longstanding”
public-carry regulations cannot prospectively bless every novel acquisition burden a state might later add.
In short—as with the Bruen majority’s footnote 9—
Justice Kavanaugh did not say that any new firearms
36 YUKUTAKE V. LOPEZ
restriction becomes permissible when attached to a
shall-issue system, and he did not purport to replace Bruen’s text-and-history analysis with a burden-shifting presumption.
iii
Finally, the majority invokes out-of-circuit precedent
that relies on Heller’s dicta that “nothing in our opinion should be taken to cast doubt on longstanding . . . laws
imposing conditions and qualifications on the commercial
sale of arms,” which are “presumptively lawful regulatory measures.” 554 U.S. at 626–27 & n.26; Maj. Op. 19–20
(“follow[ing] the lead” of the McRorey court, which
“emphasized that Bruen’s footnote 9 preserves the
constitutionality of objective conditions on commercial
firearm sales”). That language in Heller should not be
overread. Heller referred to “longstanding” regulatory
measures. 554 U.S. at 626. It did not hold that any burden on a buyer is constitutional if it can be characterized as a sales condition. Nor did it undermine the historical
methodology that Bruen later made explicit. See id. at 635 (“[T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”).
Two features matter here. First, commercial-sale
conditions traditionally regulated sellers, not buyers, for instance by requiring sellers to maintain lawful premises, keep sales records, and comply with transfer rules. See
Teixeira v. County of Alameda, 873 F.3d 670, 682–90 (9th
Cir. 2017) (en banc) (seller-side regulation is rooted in text and history, but the rights of buyers and sellers are not coextensive), abrogated in part by Bruen, 597 U.S. at 17; Hirschfeld v. Bureau of Alcohol, Tobacco, Firearms &
YUKUTAKE V. LOPEZ 37
Explosives, 5 F.4th 407, 416 (4th Cir. 2021) (“A condition or qualification on the sale of arms is a hoop someone must jump through to sell a gun, such as obtaining a license,
establishing a lawful premise, or maintaining transfer
records.”), vacated as moot, 14 F.4th 322 (4th Cir. 2021). Hawaii’s 30-day provision voids permits held by buyers.
Second, the laws before us are not “longstanding”
regulations carried forward from the Founding. Hawaii
added the across-the-board in-person inspection requirement in 2020. Act of Sept. 15, 2020, No. 74, 2020 Haw. Sess.
Laws 479–83 (codified at Haw. Rev. Stat. § 134-3). The
legislature narrowed it in 2022. Act of June 3, 2022, No. 30, 2022 Haw. Sess. Laws 50–54 (codified at Haw. Rev. Stat.
§ 134-3). As it stands, no other state has adopted such an inspection rule. Hawaii replaced the former 10-day permit period with the current 30-day period effective in January 2024. Act of June 2, 2023, No. 52, 2023 Haw. Sess. Laws
113–36 (codified at Haw. Rev. Stat. § 134-2). That recent enactment prevents Hawaii from invoking Heller’s
assurance about “longstanding” commercial qualifications
being “presumptively lawful.” See Hirschfeld, 5 F.4th at 418 (“requiring the law to be both a commercial condition and longstanding to be presumptively valid” under Heller).
Hawaii still must identify the historical principles that support its new burden. Thus, even assuming Heller’s dicta is a carve-out from Bruen, that carve-out cannot apply here.
In sum, footnote 9 clarified Bruen’s holding and
cautioned that the Court striking down “may-issue” carry
regimes should not be read to also endorse striking down
“shall-issue” carry regimes, which “do not necessarily
prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” 597 U.S. at 38 n.9 (citation omitted). Footnote 9 did not create a new 38 YUKUTAKE V. LOPEZ
constitutional test or categorical presumption out of whole cloth.
C
Let us assume that the majority is correct: “nondiscretionary, objective, and non-abusive shall-issue laws” like “background checks, firearm training, fingerprinting, or other ordinary eligibility requirements” all bypass Bruen’s traditional two-step analysis and automatically “pass
constitutional muster under Bruen footnote 9.” Maj. Op. 20. Even if correct, this conclusion does not save the two Hawaii laws at issue. Contrary to the majority’s conclusory
analysis, Hawaii’s laws (1) are not “ordinary” or
“longstanding”; (2) are not “eligibility requirements” aimed at ensuring gun owners are “law-abiding, responsible
citizens”; and (3) have been “put toward abusive ends.”
1
To start, these time-limit and inspection-requirement
laws are not “ordinary eligibility requirements.” Id.
(emphasis added).
First, they are “outliers,” Bruen, 597 U.S. at 30, 70, 79, that apply after an applicant has been deemed eligible to possess a firearm. No other state has an equivalent
restriction. It appears that only two other states have a permit validity period of under one year. And as the district court found, Hawaii is “the only state in the country to
require in-person inspection and registration of firearms.” Yukutake v. Conners, 554 F. Supp. 3d 1074, 1090 (D. Haw.
2021). The Bruen Court focused on a law’s “outlier” status at several points. 597 U.S. at 30, 65, 70. As did Justices Alito and Kavanaugh in their separate concurrences. Id. at 78 (Alito, J., concurring) (“The District of Columbia law was
YUKUTAKE V. LOPEZ 39
an extreme outlier; only a few other jurisdictions in the entire country had similar laws.”); id. at 79 (Kavanaugh, J.,
concurring) (“New York’s outlier may-issue regime is
constitutionally problematic.”). The Supreme Court closely scrutinizes firearms laws that are extreme outliers. So
should we.
Second, these laws—enacted only in the last few years—
are not ordinary because they are not “longstanding,” as
previously noted. Not only do these laws lack any historical pedigree from the Founding or Reconstruction Eras, they do not even date back to the expansion of “shall-issue” carry regimes in this country. See Smotherman, supra, at 360–62 (“In 1987, Florida passed a shall-issue concealed carry
statute that would serve as the paradigm for similar statutes adopted by thirty-three states over the next three decades.”). Because these laws are not longstanding, they draw no
support from any Supreme Court precedent endorsing
certain “longstanding” firearms regulations. See Heller, 554 U.S. at 626; McDonald v. Chicago, 561 U.S. 742, 786
(2010); Bruen, 597 U.S. at 30; Wolford, 146 S. Ct. at 2042. Hawaii’s arbitrary time-limit and inspection laws are “latein-time outliers” that deserve no deference. Bruen, 597 U.S. at 70.
2
Next, these laws are not “eligibility requirements.” Maj. Op. 20. Even broadly interpreted, footnote 9 speaks only to laws “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law abiding, responsible citizens.’” Bruen, 597 U.S. at 38 n.9 (citation omitted). The Hawaii
laws here do nothing of the sort. They take effect after the State has determined that the applicant satisfies its objective criteria. A deadline requiring that person to complete a
40 YUKUTAKE V. LOPEZ
handgun purchase within 30 days does not ensure the
applicant’s character, lack of criminal history, mental health, or firearms competence. And an inspection of an already
acquired firearm does not reveal whether its owner was
disqualified when the permit was issued.
These laws apply only to Hawaiians who have run the
gauntlet in successfully navigating Hawaii’s strict process to acquire a handgun. These individuals have completed forms collecting identifying information and mental-health history, submitted to fingerprinting and photographing, granted
police access to their mental-health records, completed a training course, paid a fee, passed a background check, and been determined to have “the essential character or
temperament necessary to be entrusted with a firearm.”
Haw. Rev. Stat. § 134-2(b)(1)(E). In other words, these
post-permit requirements are not “eligibility requirements,” Maj. Op. 20, because they apply only after the individuals have proven themselves eligible as “law-abiding,
responsible citizens,” Bruen, 597 U.S. at 38 n.9 (citation omitted).
3
Finally, the challenged regulations have been “put
toward abusive ends” by Hawaii. Id. They only
inconvenience Hawaiian gun owners and aspiring gun
owners—who have been trained and vetted—by hindering
their ability to lawfully purchase handguns, without
adequate justification.
Hawaii asserts that the “permit’s 30-day validity window
helps ensure that permittees do not obtain disqualifying
conditions between receiving a permit and acquiring the
firearm.” But Hawaii did not show that its “legislature
considered any evidence—let alone substantial evidence—
YUKUTAKE V. LOPEZ 41
prior to enacting the law” (and the district court found none). Yukutake, 554 F. Supp. 3d at 1084. Before the district court, Hawaii did not provide any “empirical evidence or case law suggesting that a 10-day permit use period would enhance
public safety.” Id. The same is true of the new 30-day
period. The district court’s reasoning remains valid: if the goal is to prevent a licensee from making use of the permit to purchase after he has become disqualified from owning a firearm, a 30-day time limit does nothing to accomplish that objective. Id. at 1085. “In fact, the opposite could be true.” Id. “By shortening the permit use period to reduce the
likelihood that disqualifying changes occur before the
applicant obtains the handgun, the law arguably increases the likelihood that individuals will already be in possession of a gun should a disqualifying change occur.” Id.
Unlike an “ordinary eligibility requirement” such as a
background check, the challenged 30-day time limit is an
expiration rule that forces a still-qualified citizen to restart the entire application process if a transaction cannot be completed quickly enough. Maj. Op. 20; Haw. Rev. Stat.
§ 134-2. Hawaii already conditions every permit on the
continuing disqualifications in Hawaii Revised Statutes
§ 134-7. Hawaii law also provides for impoundment of
permits upon specified arrests, and Hawaii subjects firearm owners to continuous criminal-record monitoring through
the FBI’s “Rap Back” program. See Haw. Rev. Stat. § 846-2.7.
Those features confirm that the State knows how to
respond to an actual change in eligibility. The 30-day rule instead presumes that a permit becomes unreliable with the passage of a short, arbitrary period even when no
disqualifying event occurs. As the three-judge panel
majority explained, while Hawaii likely has some “valid
42 YUKUTAKE V. LOPEZ
interest in ensuring that the background-check results are not stale,” it has pointed to no evidence to support its
“extravagant view that anything over . . . 30 days counts as stale.” Yukutake v. Lopez, 130 F.4th 1077, 1099 (9th Cir.), reh’g en banc granted, opinion vacated, 144 F.4th 1119 (9th Cir. 2025).
Hawaii law’s treatment of long guns exposes the
mismatch. A permit to acquire rifles and shotguns remains valid for one year and may be used for multiple acquisitions, subject to the same continuing disqualifications. Haw. Rev. Stat. § 134-2(e). If the risk of a newly arising
disqualification justifies voiding a handgun permit after 30 days, the State has not explained why the same risk permits repeated rifle and shotgun acquisitions for 12 months. That inconsistency is evidence that the challenged handgun
deadline is not a legitimate eligibility-screening function discussed in footnote 9. See Yukutake, 130 F.4th at 1099.
Hawaii’s explanation for the inspection requirement
makes even less sense. Hawaii has justified it as a response to unserialized “ghost guns,” a means of identifying firearms unlawful to possess, and an aid to tracing firearms used in crimes. Those may be public-safety objectives, but they are not applicant eligibility determinations. The current law applies to firearms acquired through nondealer transfers, specified self-manufactured or 3D-printed firearms, and
firearms brought into Hawaii. Haw. Rev. Stat. § 134-3(b)– (c). It requires the firearm—not the applicant’s criminal or mental-health record—to be presented. Its “why” concerns
the weapon’s markings and traceability, not whether a
licensing official has properly classified the applicant as lawabiding and responsible.
YUKUTAKE V. LOPEZ 43
Hawaii asserts that “the inspection requirement
addresses the problem of ‘ghost guns,’ which are assembled without identification markings and enable persons who
would normally be prohibited from owning or possessing
firearms to do so.” But the inspection requirement applies not just to unserialized firearms; it also applies to all standard handguns brought to Hawaii from other states (even if
purchased from a federally licensed dealer) or legally sold by private parties in Hawaii. Haw. Rev. Stat. § 134-3(a)– (b). And the physical inspection requirement applies after an individual has either already obtained the firearm or
already been vetted and approved to do so. Thus, the
inspection requirement is either an over-inclusive add-on regulating already illegal possession or a superfluous burden on an already vetted, law-abiding person. And again,
“Hawaii is the only state in the country to require in-person inspection and registration of firearms” and “provided no evidence whatsoever in support of its position” that its
inspection requirement was necessary to public safety.
Yukutake, 554 F. Supp. 3d at 1089–90.
The point is this: background checks, fingerprinting,
firearms education and training courses, and similar
eligibility criteria are not challenged here. But footnote 9’s examples do not operate as a talisman for rules that neither screen the applicant nor guide the issuance decision. See Bruen, 597 U.S. at 38 n.9. Even if footnote 9 created a
separate safe harbor, Hawaii’s 30-day deadline and
physical-inspection mandate fall outside it.
* * *
Footnote 9 does not control this case. The challenged
regulations have nothing to do with public carry, are not longstanding, and do nothing to ensure that those possessing 44 YUKUTAKE V. LOPEZ
arms are law-abiding, responsible citizens. They have been put toward abusive ends and are not entitled to a presumption of constitutionality under Heller or Bruen, to the extent such a presumption exists. Hawaii’s firearm regulations should have been assessed under Bruen’s framework.
II
The proper analysis begins with Bruen step one. There
is no dispute that Plaintiffs are “law-abiding, responsible citizens” who seek to acquire handguns for lawful
possession in their homes. Heller, 554 U.S. at 635.
Handguns are “Arms” protected by the Second Amendment,
id. at 581–82, 628–29, and Plaintiffs are among “the
people,” see id. at 581; Bruen, 597 U.S. at 31–32. The only questions are: (1) whether the Second Amendment’s plain
text—protecting “the right of the people to
keep . . . Arms”—includes the necessary predicate act of
acquiring arms, and (2) if so, whether the Hawaii laws here “infringe” that right. U.S. Const. amend. II. Text, ordinary usage, precedent, and the canons of construction all point to the same answer for both questions. Yes.
A
The “right to keep and bear arms includes the right to
purchase them. And thus laws that burden the ability to
purchase arms burden Second Amendment rights.” Jones,
34 F.4th at 716. Heller explained that the most natural
reading of “keep Arms” is to “have weapons.” 554 U.S. at
582. At the Founding, “keep” meant to have in custody,
hold, or retain. Id. at 582–83. Bruen likewise described the Second Amendment’s operative clause as guaranteeing the
individual right to possess and carry weapons. 597 U.S. at 20. A person cannot ordinarily have, hold, retain, or possess a handgun without first taking possession of it. Acquisition
YUKUTAKE V. LOPEZ 45
is the transition by which an arm comes into the person’s custody. It is therefore embedded in the ordinary exercise of the right to keep.
1
As several of our sister circuits have held, the Second
Amendment protects the acquisition of arms. See, e.g.,
Ortega v. Grisham, 148 F.4th 1134, 1143–44 (10th Cir.
2025); Reese v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 127 F.4th 583, 590 & n.2 (5th Cir. 2025). Our en banc decision in Teixeira recognized this relationship even before Bruen. 873 F.3d at 670. The right to keep and bear arms “wouldn’t mean much” without the ability to
acquire them, and the right to keep arms “necessarily
involves the right to purchase them,” obtain ammunition,
and keep them in repair. Id. at 677–78 (citations omitted).
Like the three-judge panel majority, I express no “view
as to whether any other aspects of our opinion in Teixeira have been abrogated by Bruen.” Yukutake, 130 F.4th at
1090. But at least one of Teixeira’s textual insights remains sound: the right to keep an arm must include the act by which the individual obtains it. See Teixeira, 873 F.3d at 678 (“The right to keep and bear arms for self-defense under the Second Amendment must also include the right to acquire a
firearm.” (cleaned up)). The three-judge panel majority
agreed and was correct to reaffirm, post-Bruen, “our prior holding in Teixeira that the purchase and acquisition of
firearms is conduct that is protected by the plain text of the Second Amendment.” Yukutake, 130 F.4th at 1090.
Our decision in Nguyen applied the same principle to a
direct restriction on buyers’ ability to acquire and keep multiple arms. 140 F.4th at 1242–43. “[I]f the Second
Amendment’s plain text protects the ability to possess
46 YUKUTAKE V. LOPEZ
multiple arms, which we conclude[d] it does, then it also protects the ability to acquire multiple arms.” Id. at 1243. Thus, because California’s “one-gun-a-month law”
constrained acquisition, it triggered the Second Amendment. Id. at 1242–43. Because Hawaii’s laws likewise constrain
acquisition, they too trigger Bruen’s test.
2
The three-judge panel dissent agreed that acquisition is a predicate act necessary to possession. Yukutake, 130 F.4th at 1111 (Bea, J., dissenting). But the dissent would protect acquisition “only to the extent necessary” to prevent the government from effectively denying possession or carry.
Id. at 1111–13. That limitation does not come from the
Amendment’s text. Once acquisition is recognized as
necessary to “keep” an arm, it is conduct through which the textual right is exercised. It thus becomes conduct covered and presumptively protected by the Second Amendment’s
plain text. See Bruen, 597 U.S. at 24.
The predicate-act canon supports the textual answer.
“The law has long recognized that the ‘[a]uthorization of an act also authorizes a necessary predicate act.’” Luis, 578 U.S. at 26 (Thomas, J., concurring in the judgment) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 192 (2012)). The principle
applies to constitutional rights: “Constitutional rights thus implicitly protect those closely related acts necessary to their exercise.” Id. Justice Thomas has given the Second
Amendment as an example, explaining that the right to keep and bear arms implies a corresponding right to obtain
ammunition and acquire and maintain proficiency with
weapons. Id.
YUKUTAKE V. LOPEZ 47
“There comes a point at which the regulation of action
intimately and unavoidably connected with a right is a
regulation of the right itself.” Jones, 34 F.4th at 716 (cleaned up) (quoting Luis, 578 U.S. at 26 (Thomas, J., concurring in the judgment)). Acquiring an arm is not merely helpful to keeping it. It is logically necessary. The “core Second
Amendment right wouldn’t mean much without the ability
to acquire arms.” Nguyen, 140 F.4th at 1241 (cleaned up). After all, the government could nullify the right to possess newly made arms if it could prohibit every purchase, gift, inheritance, or transfer while insisting that possession itself remained lawful. Even short of total prohibition, the
government could make it so inconvenient and expensive to acquire arms, that it effectively discourages most citizens from doing so. The Second Amendment’s text does not
guarantee citizens the right to keep only whatever weapons happen to be in their hands before the government closes all lawful channels of acquisition. Without protection for
“closely related rights” like the acquisition of firearms and ammunition, “the Second Amendment would be toothless.”
Luis, 578 U.S. at 27 (Thomas, J., concurring in the
judgment).
Other constitutional provisions illustrate the flaw. The
freedom of the press would offer little protection if the government could forbid publishers from obtaining paper,
ink, cameras, computers, or distribution services. See
Ortega, 148 F.4th at 1143 (“As paper or a computer is a
necessary predicate to the right to print, . . . acquiring, purchasing, and possessing firearms is a necessary predicate to keeping and bearing them.”). The free exercise of religion would be hollow if the government could prohibit
congregations from acquiring Bibles or leasing church
buildings while claiming that worship itself remained
48 YUKUTAKE V. LOPEZ
untouched. See id. (“Common sense dictates that the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion
necessarily rests on a right to acquire a sacred text.”). And the right to counsel necessarily protects reasonable steps to retain counsel. See Luis, 578 U.S. at 25 (Thomas, J.,
concurring in the judgment). In each setting, the predicate act is protected to an equal degree—were it otherwise, the express right could be extinguished indirectly. Cf. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866)
(“The legal result must be the same, for what cannot be done directly cannot be done indirectly.”).
The three-judge panel dissenting view that “[t]he plain
text of the Second Amendment does not wholly protect the
purchase or the acquisition of firearms,” Yukutake, 130 F.4th at 1109 (Bea, J., dissenting), “makes no more sense than
saying that the First Amendment’s text does not protect the right to acquire copies of books, audio files, or movies,” id. at 1092 (Maj. Op.). The panel majority said it right: the dissent’s “view would still allow all manner of harassing limitations on the acquisition of firearms, without any
constitutional scrutiny whatsoever, so long as those
limitations fall short of ultimately preventing a citizen from possessing firearms for self-defense.” Id. Ignoring the
predicate-act canon and excluding the acquisition of arms from the umbrella of the Second Amendment’s full
protection reduces it to “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Bruen, 597 U.S. at 70 (quoting McDonald, 561 U.S. at 780). That we may not do.
YUKUTAKE V. LOPEZ 49
B
Hawaii argues, and the majority agrees, that Plaintiffs
have not shown a practical denial of the ability to acquire and possess firearms. See Maj. Op. 21. But Bruen step one asks whether the text covers the conduct, not whether the law destroys the right altogether. Laws that “infringe” the right to keep and bear arms implicate the Second Amendment.
Because the majority resolves this case based solely on
footnote 9, it does not reach the question of what “infringe” means under the Second Amendment. Maj. Op. 22. But
applying Bruen correctly, we should have addressed this
question and held that “infringe” encompasses burdens short of destruction of the right.
The Second Amendment’s text says, “shall not be
infringed,” not “shall not be denied.” U.S. Const. amend. II. At the Founding, to infringe included to violate, destroy, impede, or hinder; to hinder included obstructing for a time or interposing obstacles. See Md. Shall Issue, 116 F.4th at 244 (Richardson, J., dissenting) (collecting Founding-era definitions and concluding that they “defined ‘infringe’ to include burdens that fell short of total deprivations”).
“Shall not be infring[ed]” forbids destruction of the right, such as a ban on all gun ownership. Frein v. Pa. State Police, 47 F.4th 247, 254 (3d Cir. 2022). “But it also forbids lesser violations that hinder a person’s ability” to keep and bear arms. Id. (cleaned up). The Supreme Court approvingly
quoted this understanding in Heller, stating that the right shall not be “infringed, curtailed, or broken in upon, in the smallest degree.” 554 U.S. at 612 (quoting Nunn v. State, 1 Ga. 243, 251 (1846)). Similarly, we defined infringement in Nguyen as “[a]n encroachment or trespass on (a right,
privilege, etc.).” 140 F.4th at 1243 (quoting Infringement, 50 YUKUTAKE V. LOPEZ
Black’s Law Dictionary (12th ed. 2024)). In short, a
constitutional infringement need not eliminate every means of exercising the right.
The challenged Hawaii laws impose direct legal
obstacles on the exercise of the Second Amendment right.
Section 134-2(e) makes a handgun permit void unless used
within 30 days. If the permittee cannot complete the
acquisition in that window—for instance, because the
chosen handgun is unavailable, a seller is delayed, work or family obligations intervene, or a transaction otherwise falls through—the permittee must begin again. Yukutake
experienced that consequence under the former 10-day rule. Yukutake, 130 F.4th at 1081. Section 134-3 requires covered persons to transport an acquired firearm to a police
department for inspection. Each regulation controls a
mandatory step in taking and retaining lawful possession. That is enough to bring the conduct within the Second
Amendment’s plain text.
By failing at the start, the majority misses an opportunity to clarify our prior misguided precedent suggesting that
some other test—i.e., means-end scrutiny or “meaningful
constraint”—can precede or replace Bruen step one. See,
e.g., B & L Prods., Inc. v. Newsom, 104 F.4th 108 (9th Cir. 2024), cert. denied, 145 S. Ct. 1958 (2025). A “meaningful constraint” screen becomes especially impermissible if it asks courts to weigh the severity of the burden before taking the text seriously. See id. at 118–19. Bruen rejected as “one step too many” any test that turned constitutional scrutiny on “how close the law comes to the core of the Second
Amendment right and the severity of the law’s burden on
that right.” 597 U.S. at 18–19. A rule that demands neartotal denial before history matters recreates the rejected interest-balancing threshold under a new name. And even if
YUKUTAKE V. LOPEZ 51
the meaningful-constraint test is viewed as applying at step one rather than before step one, it would still be deficient because whether the challenged law permissibly burdens the right to bear arms is “out of place” at step one. Wolford, 146 S. Ct. at 2049.
We should have overruled our mistaken “meaningful
constraint” test in B & L Productions, 104 F.4th at 118–19. But even B & L Productions does not support a practicaldenial threshold in this case. B & L Productions addressed contracts for firearm sales on state property. 104 F.4th at 111. Individuals remained free to examine firearms at a
show, leave the property, and immediately order the desired item elsewhere. Id. at 117–20. The decision expressly
distinguished a limited restriction on the purchase of
firearms and a ban covering all sales of a type of arm in a region. Id. at 117 n.17, 119. Hawaii’s rules, in contrast, apply statewide to the covered acquisitions; there is no
lawful location within Hawaii where a handgun permittee
may avoid the deadline, and federal law sharply limits
Hawaii residents’ ability to obtain a handgun elsewhere.
Haw. Rev. Stat. § 134-2(e); 18 U.S.C. § 922(b)(3)
(prohibiting licensed dealers from selling handguns to outof-state residents). The universal acquisition rules here do not resemble the location-specific contracting restrictions in B & L Productions.
* * *
Under Bruen, once protected conduct is covered, the
government bears the burden to establish a historical
tradition. 597 U.S. at 24. If the burden is genuinely ordinary and longstanding, that history should not be difficult to identify. Shifting the burden to the citizen when the state argues that the regulation is modest is exactly the kind of 52 YUKUTAKE V. LOPEZ
judicial interest balancing Bruen removed from the analysis. Id. at 23–24. That brings us to Bruen step two.
III
Bruen step two ends the inquiry—Hawaii’s regulations
infringe on the right to keep arms and are not “consistent with this Nation’s historical tradition of firearm regulation.” Id. at 17. Hawaii need not produce a “historical twin.” Id. at 30. Modern laws may address unprecedented societal
concerns or dramatic technological changes through a more nuanced analogical inquiry. Id. at 27. But nuance does not dispense with comparison. The State still must identify a “well-established and representative historical analogue” whose operation and justification are relevantly similar to the challenged law. Id. at 29–30. The primary considerations are the regulation’s “how” and “why.”
Rahimi, 602 U.S. at 692. “The more closely a contemporary law mirrors a well-established historical analogue in purpose and operation, the more likely it is to be upheld”; the more it diverges, the less likely it is to survive. Hemani, 146 S. Ct. at 1686.
And while the Supreme Court has never engaged in “an
exhaustive historical analysis . . . of the full scope of the Second Amendment,” Rahimi, 602 U.S. at 702 (quoting
Bruen, 597 U.S. at 31), it has illustrated how to conduct a historically grounded inquiry into our history of firearm regulation. That inquiry should neither devolve into a
reflexive prohibition on firearms nor a reflexive prohibition on firearm regulation. It should prompt courts to evaluate whether the burden placed on the Second Amendment right
is analogous with our tradition of firearm regulation.
In its en banc supplemental brief, Hawaii ignores its
burden under Bruen to present any historical analogues,
YUKUTAKE V. LOPEZ 53
choosing instead to focus on footnote 9. That alone is
telling. But in its supplemental brief to the three-judge panel, Hawaii presented three categories of historical
analogues to support its laws: loyalty oaths, pardons, and militia laws. When applied to the two regulations at issue, each historical analogue fails in both the “how” and “why.”
A
There is no historical analogue to Hawaii’s 30-day
deadline for handgun purchases. Hawaii invokes Revolutionary-era loyalty oaths and the longstanding power to pardon convicted persons. These analogues are offered to justify permitting in general, not the 30-day expiration rule, and thus are framed at too high a level of generality. Cf. Rahimi, 602 U.S. at 740 (Barrett, J., concurring) (“A court must be careful not to read a principle at such a high level of generality that it waters down the right.”). That already leaves a gap: neither an oath nor a pardon became void
because the restored person failed to purchase an arm within a few weeks. But the proposed analogies fail even at the
broader level Hawaii advances them.
The “how” of these laws was very different. The loyaltyoath laws disarmed persons regarded as disloyal to the new governments during the Revolution. Under Hawaii’s
examples, refusing an oath could produce a broad loss of
civic rights, while taking the oath could remove that
disability. Hawaii characterizes the oath as a “request” for official permission to own a firearm. That is not how the law operated. The oath addressed a defined wartime ground for disarmament—refusal to pledge allegiance—not the
ordinary citizen’s acquisition of an arm. The laws thus
disabled persons treated as disloyal and restored their
general civic status if they supplied the assurance. The laws 54 YUKUTAKE V. LOPEZ
did not require all citizens, including those never suspected of disloyalty, to seek transaction-by-transaction approval before acquiring arms.
Their “why” was also particular. Revolutionary governments feared allegiance to an enemy sovereign,
refusal to support the new polity, and the resulting risk of aid to hostile forces. Hawaii’s deadline does not address
allegiance, wartime sabotage, or an identified reason to
doubt any applicant. Haw. Rev. Stat. § 134-2(e). Instead, it seeks freshness in administrative information by making
every approval expire automatically. Framing both purposes as “dispel[ling] potential dangerousness” abstracts away the very distinctions Bruen and its progeny require courts to examine.
Pardons are further afield. A pardon is an act of
sovereign clemency after conviction. United States v.
Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (opinion of
Marshall, C.J.). It can forgive an offense and restore legal rights lost because the recipient committed it. Ex parte
Garland, 71 U.S. (4 Wall.) 333, 380 (1866). Hawaii calls a pardon application a request for official approval to own a firearm and says both pardons and permits protect
community safety.
But the “how” is not comparable. A person subject to a
conviction-based disability receives clemency from the
consequences of an adjudicated offense. An ordinary
Hawaii resident who has committed no disqualifying act
must obtain routine preacquisition approval and, for each handgun transaction, use it within 30 days. Haw. Rev. Stat. § 134-2(e). Extraordinary relief for a person already
lawfully disabled is not analogous to a universal
precondition imposed on law-abiding, responsible citizens.
YUKUTAKE V. LOPEZ 55
Additionally, the pardon tradition was based on the exercise of discretion. See Wilson, 32 U.S. at 160 (“A pardon is an act of grace . . . .”). Proffering this as a historical analogue suggests that Hawaii may still conceptualize its permitting requirement as a may-issue scheme.
The “why” also differs. The pardon power historically
served mercy, correction of harsh judgments, restoration, reconciliation, and executive control over punishment. See Herrera v. Collins, 506 U.S. 390, 411–15 (1993)
(clemency’s historic role in correcting judgments); Biddle v. Perovich, 274 U.S. 480, 486 (1927) (pardons as instruments of public welfare); Knote v. United States, 95 U.S. 149, 152– 54 (1877) (amnesty and reconciliation); Garland, 71 U.S. at 380 (restoration). Clemency was not a device for keeping
every ordinary citizen’s background information current
before an arms transaction. Nor does the pardon tradition establish that government may repeatedly suspend a
qualified citizen’s acquisition authority without any new reason to doubt that citizen.
Rahimi and Hemani reinforce the distinction. Rahimi,
602 U.S. at 698–700; Hemani, 146 S. Ct. at 1694. Focused
historical laws may support focused modern restrictions on persons shown or reasonably thought to present a particular danger. Rahimi, 602 U.S. at 698; Hemani, 146 S. Ct. at 1692 n.6. But a tradition directed at a discrete class does not automatically justify a broad rule imposed on the public
generally. See Rahimi, 602 U.S. at 698–99. Hawaii’s oath
and pardon analogies therefore prove, at most, that the
government historically could impose or remove disabilities for persons based on national allegiance or criminal
convictions. They do not support automatic expiration of
every loyal, law-abiding, and responsible citizen’s handgun permit.
56 YUKUTAKE V. LOPEZ
Hawaii accordingly loses on § 134-2(e). It has no
analogue from the relevant historical periods, and its statusbased examples operate for different reasons and against
different persons. The 30-day rule fails at Bruen step two.
B
Hawaii mounts a slightly better historical defense of its physical inspection law. The State points to colonial and early state militia laws. These laws commonly required
able-bodied men of military age to enroll in the militia, furnish specified arms and ammunition at their own expense, maintain that equipment in serviceable condition, appear at musters, and submit the equipment to review. Connecticut
required persons obliged to keep arms to bring them to a
designated place so an officer could identify deficiencies. South Carolina fined militiamen whose arms or equipment
were deficient at muster. Massachusetts required periodic examinations of company arms and equipment. The Militia
Act of 1792 directed brigade inspectors to inspect arms and report on the condition of militia equipment.
Those enactments establish a genuine tradition: the
government could inspect militia equipment to enforce an
affirmative public duty of military readiness. See Jones, 34 F.4th at 718–19 (“Militia membership also included some of what we might now call regulation: members of the militia were required to meet regularly for weapons inspection and registration.” (cleaned up)). But that tradition differs from Hawaii’s compulsory police inspection of newly acquired
private handguns in both the “how” and the “why.”
Begin with the “how.” Militia inspection attached to
enrollment and the public obligation to appear equipped for service. It did not affect the acquisition of arms because the covered person already possessed the weapon. Review
YUKUTAKE V. LOPEZ 57
occurred at a muster, training day, or other militia
proceeding and tested whether the arms required for service were present and fit. Deficiency of arms could produce a
fine or other consequence tied to failure to perform that public duty. Unlike § 134-3, the inspection was not
triggered by a purchase, gift, inheritance, importation, or private transfer. It did not condition an ordinary citizen’s acquisition of an arm for self-defense or other private
purposes on transporting the arm to civilian police within a few days.
Hawaii argues that the affirmative duty to “provide”
oneself with a musket necessarily implied official approval to acquire one. That argument reverses the historical law’s operation. A command to obtain and maintain an arm
presupposes that the citizen may acquire it; it is not a
licensing decision. The government did not first investigate every militiaman, issue transaction-specific permission, and then cancel that permission if unused. The laws compelled arms possession for a public function. Hawaii’s laws restrict the process of private acquisition. Opposite commands
cannot be made analogous by broadly describing both as
governmental involvement with guns.
The State also emphasizes militia “returns”—reports
listing companies, equipment, and in sometimes each man’s equipment—and describes them as early registration
requirements analogous to § 134-3. Even accepting that
label, the operative difference remains. The returns
documented compliance with a military unit’s equipment
requirements and the readiness of its subordinate units. They were generated through the chain of command because
officials needed to know whether the militia could field
properly armed men. Hawaii’s inspection is part of a civil registry keyed to new private acquisitions, the firearms’ 58 YUKUTAKE V. LOPEZ
serial numbers and features, and future law-enforcement use. See Haw. Rev. Stat. § 134-3. Recording military readiness is not the same historical practice as compelling physical presentation of privately acquired arms for identification and tracking.
Hawaii contends that militia service was pervasive
among those who possessed full civil rights, so the
distinction between militiamen and civilians should not
matter. But the prevalence of militia service does not
eliminate the distinction between the public duties of
militiamen and the private rights of citizens. The same
individual may have kept a private arm for self-defense and owed a public duty to appear with suitable equipment. The inspection authority followed from the latter duty. Heller rejected the proposition that the right to keep arms depended on militia service; the “central component of the right” was self-defense. 554 U.S. at 599. A widespread obligation
imposed on citizens when acting as militiamen does not
become a general power over those citizens whenever they
privately acquire arms for “self-defense and hunting.” Id.
The modern law’s “why” is further removed. Militia
inspection ensured that the body charged with collective
defense had enough serviceable, standardized equipment to perform that role. It enforced a duty to be armed and ready. Hawaii contends that its inspection requirement protects
against “internal threats (e.g., criminals).” And its filings identify a series of aims: verifying serial numbers, detecting unserialized “ghost guns,” discovering prohibited weapons or accessories, correcting transcription errors, and the ability to trace a firearm recovered in a later criminal investigation. Those are concerns about contraband, identification, record accuracy, and law enforcement. They are not concerns about whether a citizen’s arms are fit for public military service.
YUKUTAKE V. LOPEZ 59
Hawaii says the difference between external defense and
internal law enforcement is immaterial because militias also pursued criminals, and both systems served “the security of the community.” Again, that argument proceeds at a level
of generality Bruen forbids. 597 U.S. at 30. Almost every firearms law could be argued to promote community security in some way. Rahimi asked whether Founding-era laws
regulated arms to address the relevant “particular problem.” 602 U.S. at 692. Hemani likewise examined the analogue’s
purpose and operation, not a universal aspiration such as safety. 146 S. Ct. at 1686–87. The militia’s occasional
law-enforcement function still depended on armed citizens being equipped to perform a public duty. Hawaii’s
inspection instead examines private arms as potential
contraband or future evidence. See Haw. Rev. Stat. § 134-3. The policy concerns, and the ways to address them, remain different.
Whether the historical tradition supports inspection of
militia equipment for militia readiness, see Jones, 34 F.4th at 717–19, it does not support Hawaii’s acquisition-linked inspection for serial-number enforcement and tracing.
* * *
The result at Bruen step two is straightforward. Hawaii
bears the historical burden, and Hawaii has not carried it. Section 134-2(e)’s automatic 30-day permit expiration and § 134‑3’s acquisition-linked physical-inspection requirement are inconsistent with the Nation’s historical tradition of firearm regulation.
IV
The majority’s opinion tracks other courts’
interpretations of footnote 9. But footnote 9 cannot bear the doctrinal weight the majority places on it. Read in context, 60 YUKUTAKE V. LOPEZ
the footnote states that objective public-carry licensing criteria—to ensure that those carrying handguns outside the home are “law-abiding, responsible citizens”—are not
necessarily unconstitutional. The footnote does not create a freewheeling presumption of constitutionality for every
objective feature of every firearms-licensing statute. And it does not endorse burden-shifting by label. A state may not take a likely constitutional background-check requirement, append a novel post-approval restriction, call the combined statute “shall-issue,” and require citizens to prove practical denial without identifying any historical basis. Such an
approach runs afoul of Bruen and reduces the Second
Amendment to “a second-class right, subject to an entirely different body of rules than the other Bill of Rights
guarantees.” Bruen, 597 U.S. at 70 (quoting McDonald, 561 U.S. at 780).
Bruen’s ordinary framework resolves this case.
Acquisition is covered by the Second Amendment’s plain
text because it is a necessary predicate to keeping an arm. Jones, 34 F.4th at 716. Hawaii’s statewide purchase
deadline and physical-inspection mandate burden that
protected conduct. Hawaii therefore must demonstrate that those laws are consistent with the Nation’s historical
tradition. Hawaii has not done so. No representative
historical analogue supports voiding an approved handgun
permit after 30 days. And colonial militia inspection laws ensured that enrolled militiamen possessed functional arms for public defense; they did not condition private acquisition on presenting a firearm to police.
We should have affirmed the district court’s grant of
summary judgment to Plaintiffs. I respectfully dissent.
YUKUTAKE V. LOPEZ 61
FORREST, Circuit Judge, dissenting:
Since New York State Rifle & Pistol Association v.
Bruen, 597 U.S. 1 (2022), the Supreme Court has applied a two-step text-history-tradition framework for Second
Amendment analysis. See id. at 24; United States v. Rahimi, 602 U.S. 680, 692 (2024); United States v. Hemani, 146 S. Ct. 1677, 1685 (2026); Wolford v. Lopez, 146 S. Ct. 2032, 2043 (2026). Reasonable minds may disagree on the efficacy of that framework or how to apply it. But we cannot sidestep it. In my view, that is what the majority does by following in the footsteps of others who have adopted a safe-harbor for shall-issue licensing regimes based on Bruen’s footnote
nine. I join all but Part I–C of Judge Nelson’s opinion
explaining the serious problems with the majority’s
approach.1 I write separately only to address the scope of the injunction that the district court issued because, while I would have affirmed the district court on the merits, I also would have remanded with instructions for the district court to narrow its permanent injunction in light of Trump v.
CASA, Inc., 606 U.S 831 (2025).
Courts generally only have the authority to “administer
complete relief between the parties.” Id. at 851 (quoting Kinney-Coastal Oil Co. v. Kieffer, 277 U.S. 488, 507 (1928) (emphasis in original)). Injunctions that afford relief beyond the parties typically exceed the scope of federal equitable powers. See id. at 842–43; see also Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 425 (2017). Here, the district court permanently enjoined Hawaii from enforcing Hawaii Revised Statutes
§§ 134-2(e) and 134-3 against any person. Obviously, this
1
I do not join Part I–C because it is an unnecessary application of an incorrect standard.
62 YUKUTAKE V. LOPEZ
injunction bars Hawaii from enforcing its challenged
regulations against individuals other than the Plaintiffs. As such, I would reject Plaintiffs’ request that we summarily affirm the district court’s decision because the injunction that it issued is overbroad. See CASA, 606 U.S. at 843–44.
Plaintiffs misunderstand the relationship between
complete relief in a facial challenge and universal relief. These concepts are “not synonymous.” CASA, 606 U.S. at
851. Complete relief in this case is preventing enforcement of the challenged statutes in all circumstances against the Plaintiffs. That might “advantage nonparties,” but it does so “only incidentally.” Id. (quoting Trump v. Hawaii, 585 U.S. 667, 717 (2018) (Thomas, J., concurring)). By contrast,
universal relief—enjoining enforcement of the regulations against any person subject to them—would grant nonparties direct relief, which CASA disfavors. Id. at 851–54.
While there may be rare cases where issuance of
universal relief is appropriate, this is not one of them. Universal relief is not necessary to remedy Plaintiffs’ alleged harm. And properly understood, a facial challenge does not and cannot erase the challenged provisions from the Hawaii Revised Statutes. See Arizona v. Biden, 40 F.4th 375, 396 (6th Cir. 2022) (Sutton, C.J., concurring) (citing Jonathan Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1016–17 (2018)).
To the extent that Vasquez Perdomo v. Noem suggests a
different result, it is distinguishable. 148 F.4th 656, 686–87 (9th Cir. 2025) (per curiam), cast into doubt by Noem v.
Vasquez Perdomo, 146 S. Ct. 1 (2025). Vasquez Perdomo
concerned a district-wide temporary restraining order sought by a broad putative class. Id. at 664. And the nature of the traffic-stop practice being enjoined apparently thwarted the
YUKUTAKE V. LOPEZ 63
court’s ability to afford complete relief to the class while limiting the scope of relief to just class members. Id. at 686– 87. Assuming Vasquez Perdomo was decided correctly, see
Noem, 146 S. Ct. at 1 (staying the district court’s TRO
without opinion), it may be an example of a case that
warrants broad relief, see CASA, 606 U.S. at 853–54. But
here, there is no need to enjoin enforcement of Hawaii’s
challenged laws against anyone other than the Plaintiffs to afford the Plaintiffs complete relief. As such, while the district court correctly concluded that Hawaii’s challenged statutes violate the Second Amendment, the permanent
injunction that it entered universally preventing enforcement of those statutes should have been narrowed.
VANDYKE, Circuit Judge, dissenting:
By my count, the Supreme Court has decided seven
Second Amendment cases since 2008.1 Each of those cases,
save one, was decided the same way: the Court invalidated the government’s challenged firearm regulation. Along the way, the Court and its Justices have repeatedly instructed lower courts that the Second Amendment really is a part of our Constitution, that it really means what it says, and that it really prohibits the government from abridging the people’s
1
District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Rahimi, 602 U.S. 680 (2024); United States v. Hemani, 608 U.S. ----, 146 S. Ct. 1677 (2026); Wolford v. Lopez, 609 U.S. ----, 146 S. Ct. 2032 (2026).
64 YUKUTAKE V. LOPEZ
right to own, obtain, carry, and make use of “all instruments that constitute bearable arms.” Heller, 554 U.S. at 582;
Rahimi, 602 U.S. at 712–13 (Gorsuch, J., concurring)
(“Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for
judges to implement. But either approach would let judges stray far from the Constitution’s promise.”); Wolford, 146 S. Ct. at 2060–61 (Barrett, J., concurring) (“This case … is not hard. While most Hawaiians might prefer that no one carry firearms in public places, a majority’s opposition to a
constitutional right is not a permissible basis for restricting it.”).
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
2
Of course, the difference is slight: not because our court is necessarily more anti-Second Amendment than it used to be, but rather because this court has always consistently resisted enforcement of the Second Amendment. See Knife Rights, Inc. v. Bonta, 182 F.4th 797, 802–3 (9th Cir. 2026) (VanDyke, J., dissenting from the denial of rehearing en banc). It’s hard to get much worse when you’re already touching the bottom.
YUKUTAKE V. LOPEZ 65
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.
The Supreme Court’s efforts to enforce the Second
Amendment, while laudable, have failed—in this circuit, at least.3 Elsewhere, I’ve floated some ideas for practical
3
For Exhibit B, take a look at what happened after the Supreme Court reversed one of our Second Amendment decisions just this past Term. In Wolford, the Supreme Court struck down a Hawaii law that “generally prohibit[ed] licensed individuals from carrying a firearm, even if unloaded or inoperable, ‘on private property of another.’” 146 S. Ct. at 2046 (quoting HAW. REV. STAT. § 134–9.5(a)). The Supreme Court granted certiorari on the constitutionality of only one of Hawaii’s provisions, but it noted that the provision was part of a more comprehensive regime that Hawaii had adopted in the wake of Bruen to make it “almost impossible … to carry a firearm.” Id. at 2040. Indeed, the Court observed that Hawaii “flatly prohibited” firearm possession “[o]n a large portion of the land within [Hawaii]’s boundaries,” including in any library, hospital, college, beach, amusement park, and a host of other places. Id. at 2040, 2046. Our court, of course, had blessed the lion’s share of this regime. See Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024). But the Supreme Court did not look kindly on that blessing, observing that Hawaii’s regime “hobble[d] what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.” Wolford, 146 S. Ct. at 2041.
After it was done explaining how badly our court had botched our Second Amendment analysis, the Supreme Court remanded the case back to our court to clean up the mess that we had made. Id. at 2053. What did we do? Order supplemental briefing? Hear another round of oral argument? Acknowledge the need to rethink our approach? Nope. The same panel that got reversed entered a one-and-a-half page opinion stating—with zero analysis—that the Supreme Court’s decision had no effect on any of its prior analysis except with respect to the single provision that the Supreme Court explicitly struck down. See Wolford v. 66 YUKUTAKE V. LOPEZ
tactics the Court might use to get our court to start faithfully applying the Second Amendment. See Knife Rights, 182
F.4th at 813–16 (VanDyke, J., dissenting from the denial of rehearing en banc). But a few doctrinal tweaks wouldn’t
hurt, either. Our court always conveniently seems to conjure up exceptions or loopholes for cases like Heller and Bruen— and the Supreme Court’s other Second Amendment
instruction that so many of my colleagues dislike.4 There’s
Lopez, No. 23-16164, 2026 WL 2291925, at *2 (9th Cir. Aug. 10, 2026) (“Our analysis as to all other aspects of Hawaii’s law is unaffected.”). You might be thinking “unbelievable,” but I think the word you’re looking for is “predictable.” See Knife Rights, 182 F.4th at 816 (VanDyke, J., dissenting from the denial of rehearing en banc) (“Wolford’s nice, but it literally affects nothing on my court.”). 4
The obvious upshot of our court’s obstinate refusal to sustain any Second Amendment challenge is that governments within this circuit can implement pretty much any firearm regulation they want and get away with it. A less obvious (but not less important) ramification is that our jurisprudence has a chilling effect on bringing Second Amendment challenges in the first place. Litigation is expensive—especially when a case lasts for several years and involves multiple levels of proceedings before a district court, a three-judge panel, and an en banc panel. These costs stretch “the already-limited resources of nonprofit advocacy groups that must go up against taxpayer-funded state governments with seemingly unlimited litigation resources.” Brief of Amici Curiae Second Amendment Foundation, California Rifle & Pistol Association, Incorporated, & Second Amendment Law Center, Inc. in Support of Plaintiffs-Appellees at 2.
Congress recognized this imbalance. That’s why it “authoriz[ed] the district courts to award a reasonable attorney’s fee to prevailing parties in civil rights litigation … to ensure effective access to the judicial process for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation marks and citation omitted); see 42 U.S.C. § 1988(b). But a party who does not ultimately “prevail[]” cannot recover fees. 42 U.S.C. § 1988(b). And since it’s basically impossible for Second Amendment challengers to ultimately “prevail[]”
YUKUTAKE V. LOPEZ 67
nothing wrong with those decisions, and, if our court
routinely applied them correctly, our caselaw would be in a respectable place. But, to give effect to the Second
Amendment and to prevent our court from perpetually
shifting the goalposts toward my colleagues’ preferred
outcomes, the Supreme Court needs to start enforcing more strict rules to supplement the Bruen framework. Some
firearm regulations ought to be completely off the table.
Half a decade ago, I proposed two “bright-line” rules that could resolve a sizable chunk of our Second Amendment
cases and make it much harder for recalcitrant judges to
ignore the law. See Duncan v. Bonta, 19 F.4th 1087, 1161
(9th Cir. 2021) (VanDyke, J. dissenting), cert. granted,
judgment vacated, 142 S. Ct. 2895 (2022), and vacated and remanded, 49 F.4th 1228 (9th Cir. 2022). First, if a “firearm product or usage that a state seeks to ban is currently
prevalent throughout our nation,” then it should simply be unconstitutional to ban it.5 Id. Second, if a state has a firearm regulation that “most other states don’t” have, then the regulation should be unconstitutional.6 Id. I continue to believe that incorporating these bright-line rules into our Second Amendment jurisprudence would accord with
Supreme Court precedent, leave minimal room for judicial
manipulation, and (perhaps something that my colleagues
in this circuit, the price tag for bringing a Second Amendment challenge here is egregiously hefty. That threatens “effective access to the judicial process” for persons interested in asserting their Second Amendment rights. Hensley, 461 U.S. at 429 (internal quotation marks and citation omitted).
5
I will refer to this principle as the “common-use rule.”
6
I will refer to this principle as the “outlier rule.”
68 YUKUTAKE V. LOPEZ
could get behind, even if they dislike the substance of the rules) make our jobs as judges easier.
Applying these rules would make this an easy case.
Hawaii’s byzantine firearm-registration requirements are
outliers. Ergo, Hawaii shouldn’t be allowed to enforce them. The majority’s conclusion otherwise distorts the Second
Amendment, so I respectfully dissent.
I.
It’s hard to imagine how the same court of appeals that
gave the government an “undefeated, 50–0 record” in
Second Amendment challenges before Bruen could—with
the Supreme Court’s subsequent direction in Bruen, Hemani, and Wolford—develop a body of law less sympathetic to
firearm-regulation challengers. Rahimi, 602 U.S. at 712
(Gorsuch, J., concurring). But we’ve managed to do so.
Where there’s a will, there’s a way, I guess. And—when it comes to blessing firearms regulations enacted by the
governments of this circuit—our court has never been
wanting in will.
I need not retell the story of “our court’s long campaign against the Second Amendment.” Knife Rights, 182 F.4th at 806 (VanDyke, J., dissenting from the denial of rehearing en banc). But to see how our caselaw is getting worse, not
better, consider our post-Heller, pre-Bruen jurisprudence.
Before Bruen, we evaluated Second Amendment
challenges under “a two-step framework.” Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022), and abrogated by Bruen, 597 U.S. 1 (2022). First, we would “ask if the
challenged law affect[ed] conduct that is protected by the Second Amendment” based on the “historical understanding
YUKUTAKE V. LOPEZ 69
of the scope of the right.” Id. (internal quotation marks and citation omitted). “If the challenged restriction burden[ed] conduct protected by the Second Amendment,” then “we
[would] move to the second step of the analysis and
determine the appropriate level of [means-ends] scrutiny.” Id. at 784. “If a regulation amount[ed] to a destruction of the Second Amendment right, it [was] unconstitutional under
any level of scrutiny.” Id. (internal quotation marks and citation omitted). If a regulation “implicate[d] the core of the Second Amendment right and severely burden[ed] that
right,” it would “receiv[e] strict scrutiny.” Id. (internal quotation marks and citation omitted). And if a regulation affected Second Amendment rights “in some lesser way, we
[would] apply intermediate scrutiny.” Id. (citation omitted).
This “exceptionally malleable” approach had no
shortage of flaws. McDougall v. Cnty. of Ventura, 23 F.4th 1095, 1119 (9th Cir.) (VanDyke, J., concurring), reh’g en banc granted, opinion vacated, 26 F.4th 1016 (9th Cir.
2022), and on reh’g en banc, 38 F.4th 1162 (9th Cir. 2022). At step one, we would typically just “assum[e], rather than decid[e], that the regulation at hand burden[ed] conduct
protected by the Second Amendment.” Id. at 1121. And at
step two, we would invariably select intermediate scrutiny, apply a level of scrutiny that “essentially equate[d] to
rational basis review,” and bless the regulation. Id. at 1119.
But our paper-tiger Second Amendment regime, at least
in theory, had two teeth: (1) we would recognize that a
regulation implicated a constitutional right, even when the regulation imposed a less-than-absolute burden on citizens’ ability to acquire firearms, and (2) we would require at least some justification for the regulation. Consider Silvester v. Harris, where, before Bruen, a panel of our court assessed the constitutionality of a California law that imposed a
70 YUKUTAKE V. LOPEZ
ten-day waiting period “for all lawful purchases of guns” by purchasers who cleared a background check in less than ten days and who had “previously purchased a firearm or ha[d] a permit to carry a concealed weapon.” 843 F.3d 816, 818
(9th Cir. 2016), abrogated by Bruen, 597 U.S. 1. The panel (spoiler alert) upheld the regulation, but the panel still required the regulation to satisfy intermediate scrutiny— even though the panel opined that the regulation “[did] not place a substantial burden on Second Amendment rights.”
Id. at 827.
The paper tiger served its purpose well: preserving the
optics of a well-defined regime to protect a constitutional right but never requiring our court to apply this approach in a way that would invalidate any firearm regulation. In
Silvester, for instance, the panel stated that the regulation “had the objective of promoting safety and reducing gun
violence” and that the government had “met its burden” of passing intermediate scrutiny. Id. at 827, 829. This
conclusion was par for the course. Governments always
attempt to justify their gun grabbing by appealing to public safety, and—with the wide latitude that we gave to
governments in fashioning their regulations—it’s not
surprising that our court always found any firearm regulation sufficiently tailored to that end. See McDougall, 23 F.4th at 1122 n.9 (VanDyke, J., concurring).
But, by at least saying that we were applying heightened
scrutiny to firearm regulations, we left the door open for district courts within our circuit to invalidate irrational firearm regulations that did no more than impose red tape on prospective and current gun owners. This case provides a
good example of that. The district court applied our
pre-Bruen caselaw and subjected the challenged provisions
YUKUTAKE V. LOPEZ 71
to intermediate scrutiny.7 Yukutake v. Conners, 554 F. Supp. 3d 1074, 1077 (D. Haw. 2021). But the court found that the state government “entirely failed to demonstrate how each law effectuate[d] its asserted interest in public safety, [so] neither law [could] pass constitutional muster.” Id.
Mystifyingly, even that conclusion is too much Second
Amendment protection post-Bruen, and our court’s paper
tiger has become a paper kitten. The majority invents a
“carve-out” to Bruen and declares that “non-discretionary, objective, and non-abusive shall-issue laws … pass
constitutional muster” without any ifs, ands, or buts.8 Maj. Op. at 13, 20. In other words, as long as a law meets the
7
I agree with the majority that the intervening amendments to the challenged provisions have no constitutional import. See Maj. Op. at 12 n.1.
8
Our pre-Bruen caselaw similarly provided for a category of “presumptively lawful regulatory measures.” Young, 992 F.3d at 783 (quoting Silvester, 843 F.3d at 821). But, to qualify for this presumptive constitutionality, a regulation had to be “sufficiently longstanding”— novel or outlier regulations did not qualify. Silvester, 843 F.3d at 819. Today, the majority incredibly reads Bruen to require no historical pedigree at all to support its presumption. As the district court observed, neither of the challenged regulations here are “longstanding” in any sense. Yukutake, 554 F. Supp. 3d at 1082. The permit-use-period regulation existed in only “a handful of similar [state] laws from the 1930s,” all except one of which has since been repealed. Id. at 1082–83. And the in-person inspection and registration requirement—which was enacted in 2020—has no historical analogue. Id. at 1086–87. But under the majority’s approach, unprecedented firearm regulations like the ones here easily pass constitutional muster with no questions asked. This conclusion is out of step not only with Bruen’s emphasis on “historical tradition” but also with our previous ahistorical, always-sympathetic-to-the-government, pre-Bruen Second Amendment caselaw. Bruen, 597 U.S. at 19. Things really have gotten (a little) worse out here on the Left Coast.
72 YUKUTAKE V. LOPEZ
conveniently undefined standards of “non-discretionary,”
“objective,” “non-abusive,” and “shall-issue,” the Second Amendment doesn’t apply at all. No constitutional analysis is required, and no justification for the regulation is too stupid to jeopardize the law’s constitutionality.
What exactly is a “non-abusive shall-issue law[]”? Maj.
Op. at 20. The majority leaves us in the dark. The majority faults Plaintiffs for failing to allege in their complaint that either of the challenged provisions “crosses [the] line”
between an always-constitutional shall-issue regime and an abusive shall-issue regime.9 Id. at 21. But the majority
draws no line. It merely speculates, in wishy-washy
language, that “certain background checks, firearms safety courses, lengthy wait times, exorbitant fees, or other
9
Why the majority throws Plaintiffs’ complaint under the bus is puzzling. If Plaintiffs could have pleaded that the challenged provisions are sufficiently abusive, then the question of abusiveness would be one of fact, not of law. After all, “the tenet that a court must accept as true all of the allegations contained in a complaint” at the motion-to-dismiss stage “is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). So if “abusiveness” is a question of law, then there was nothing Plaintiffs could have alleged in their complaint that would have made a difference.
But if the question of abusiveness is a question of fact, then the majority’s blanket declaration that the challenged provisions “comport[] with the Second Amendment” is premature on this record, and the majority’s remedy of reversal is improper. Maj. Op. at 10. As the majority itself observes, the district court entered its judgment a year before Bruen was decided. Id. Plaintiffs had no reasonable opportunity to plead that the challenged provisions violated the “footnote 9” doctrine that the majority has just now conjured up. Nor did the parties conduct discovery on whether the challenged provisions are “abusive.” So to the extent that abusiveness is a question of fact, the proper remedy would be to vacate the district court’s judgment and remand to allow Plaintiffs to amend their complaint.
YUKUTAKE V. LOPEZ 73
components of a shall-issue regime could trigger the Second Amendment’s protections.” Id. (emphasis added). Anyone
who has ever tried to purchase a firearm or obtain a
concealed-carry permit would likely be pulling his or her hair out upon reading this speculation. Purchasing a firearm and obtaining a permit to carry it publicly always involves “background checks” and “firearms safety courses.”
Depending on how at-risk, impatient, or wealthy you are, it also involves “lengthy wait times” and “exorbitant fees.” The majority’s silence as to which parts of the process
trigger Second Amendment protection—and which don’t—
is deafening.
Whether a regulation is part of a “shall issue” regime
under the majority’s approach is far from obvious. When
describing these regimes, the Supreme Court emphasized
that they “often require applicants to undergo a background check or pass a firearms safety course” so that governments can ensure “only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens.” Bruen, 597 U.S. at 38 n.9 (internal quotation marks and citation
omitted). Even if footnote 9 did create a carveout to the Bruen framework (which it did not), it did not hold that any and all “narrow,” “objective,” or “definite” requirements for purchasing a firearm or obtaining a permit are automatically part of a “shall issue” regime. See id. At most, it observed that states that already had “shall issue” regimes at the time Bruen was decided imposed some such requirements on
applicants.10
10
Ironically, as both the majority and the dissent recognized in Bruen, Hawaii did not have a “shall issue” regime at the time Bruen was decided. See Bruen, 597 U.S. at 15; id. at 99–100 (Breyer, J., dissenting). 74 YUKUTAKE V. LOPEZ
Whether a regulation is “abusive” isn’t obvious, either.
The only clue that the majority leaves us is that it would be abusive to “effectively deny ordinary citizens their Second Amendment rights.” Maj. Op. at 21 (internal quotation
marks and citation omitted). This is circular reasoning. To the majority, a shall-issue regime violates the Second
Amendment only if it is abusive, and a shall-issue regime is abusive only if it violates the Second Amendment.
And when is the Second Amendment “effectively”
violated? Here in the Ninth Circuit, “effectively” never. In a different line of post-Bruen cases, to avoid applying Bruen itself, we’ve begun to avail ourselves of another convenient, Ninth Circuit-made rule that “the plain text of the Second Amendment only prohibits meaningful constraints on the
right to acquire firearms.” See, e.g., B&L Prods., Inc. v. Newsom, 104 F.4th 108, 118 (9th Cir. 2024). Like the
elusive standards the majority invokes today, the definition of “meaningful constraint” has largely been left as an
exercise for the reader. But “given our track record with the Second Amendment, you might correctly expect that we’d
find all sorts of weapons-related restrictions not really all that ‘meaningful.’” Knife Rights, 182 F.4th at 808
(VanDyke, J., dissenting from the denial of rehearing en
banc). Through its circular reasoning and tacit reference to the atextual “meaningful constraint” test, the majority
continues the predictable strategy of Bruen avoidance in its path to upholding the regulations challenged here.
One can only guess why the majority has chosen to leave
district courts and future panels with more questions than answers. But I suspect that the majority is motivated more by fear than by humility. Had the majority provided more
explanation, the flaws in its approach would be even more apparent. For example, suppose that the majority had
YUKUTAKE V. LOPEZ 75
defined “abusive” to mean “a regulation that has no
legitimate purpose other than to frustrate an ordinary,
law-abiding citizen’s ability to obtain or carry a firearm,” or something like that. Such a definition would require courts to weigh a challenged regulation’s burden on the plaintiff (to assess the extent to which the regulation frustrates his ability to obtain a firearm) against the government’s interest in enforcing the regulation (to determine whether the
regulation has a legitimate purpose). And that would too
blatantly turn the core holding of Bruen—that courts must not “apply[] means-end scrutiny” of any kind “in the Second Amendment context”—on its head. 597 U.S. at 19.
At best, the majority resurrects the very same
interest-balancing approach that Bruen rejected. But really, it’s worse than that—it invites judges in this circuit to rubber-stamp any regulation they like, no matter how
unreasonable, so long as it can be plausibly labeled as part of a “non-abusive,” “shall-issue” regime. Even our
pre-Bruen caselaw didn’t provide such an easy shortcut for opportunistic governments to bar their residents from
exercising their Second Amendment rights. We used to have to work a little harder to reject Second Amendment claims.
II.
So where do we go from here? Not much has changed
with regard to my proposed solution. The Supreme Court
needs to constrain the discretion of the lower courts if it wants to induce judges—who often don’t personally care
much for or know much about guns—to protect the Second
Amendment. The Court need not overrule any of its prior
doctrine, but it should enforce the common-use and outlier principles as stricter Second Amendment rules. Whenever
the government “restricts” the keeping or bearing of arms, 76 YUKUTAKE V. LOPEZ
see Wolford, 146 S. Ct. at 2055 (Barrett, J., concurring), the first question should be whether the regulation passes muster under the common-use and outlier rules. If not, then the
regulation should be invalidated. If it does pass muster, then the analysis should proceed through the usual Bruen
framework, and the regulation should be upheld only if it is “consistent with this Nation’s historical tradition of firearm regulation.” 597 U.S. at 17. In other words, the
common-use and outlier rules should function as “unsafe
harbors” such that failing to satisfy either test renders a regulation per se unconstitutional.
I won’t rehash my entire apologia for these two rules.
See Duncan, 19 F.4th at 1170–72 (VanDyke, J., dissenting). But, since it’s been some time since I’ve discussed them, I’ll explain how they comport with recent Supreme Court
precedent.
A.
Though the Supreme Court hasn’t yet applied the
common-use and outlier rules as strictly as I’m envisioning, these rules are derived from Supreme Court precedent, and they fit nicely into the Bruen framework: every firearm
regulation that would fail the common-use or outlier test would also fail to satisfy Bruen’s demands, properly applied. And if that’s true, then the Court can develop the Bruen
framework while also enforcing strict rules that minimize the wiggle room that policy-minded lower courts have
weaponized to achieve their desired policy ends. Standards are good, but rules work better when you’re dealing with
less-than-enthusiastic enforcers.
YUKUTAKE V. LOPEZ 77
1.
Take the common-use rule first: “any regulation that
prohibits a firearm product or usage that is ‘in common use’ nationally” is unconstitutional. Id. at 1170. Such regulations, by definition “regulate[] arms-bearing conduct,” which means that they are “presumptively unconstitutional.” Rahimi, 602 U.S. at 691; Wolford, 146 S. Ct. at 2044. After all, the “sorts of weapons” that were historically protected by “the right to keep and carry arms … were those in
common use at the time.” Heller, 554 U.S. at 627 (internal quotation marks and citation omitted). And today, “the
Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 582. Under Bruen, then, such a regulation is constitutional only if the government can “affirmatively prove” that it is part of the “historical tradition that delimits the outer bounds of the right to keep and bear arms.” 597 U.S. at 19.
At step two of Bruen, the government must “identify a
well-established and representative historical analogue” to save the challenged regulation from invalidation. 597 U.S. at 30, 32 (emphasis omitted). To save the regulation, the proposed analogue must “impose a comparable burden on
the right of armed self-defense” and be “comparably
justified” to the challenged regulation. Id. at 29; see also Hemani, 146 S. Ct. at 1686 (“The more closely a
contemporary law mirrors a well-established historical
analogue in purpose and operation, the more likely it is to be upheld. Conversely, the more a modern law diverges from
traditional laws in purpose and operation, the less likely it is to survive review.”).
78 YUKUTAKE V. LOPEZ
There will never be an appropriate historical analogue
for a regulation that fails the common-use test. Banning
common-use firearms or usages is something that “the
Founders themselves” obviously could have done to address the “perceived societal problem” of “firearm violence.”
Bruen, 597 U.S. at 26–27. And, by definition, such a ban
would “prohibit[] … an entire class of ‘arms’” or practices “overwhelmingly chosen by American society” for the
“lawful purpose” of “defense of self, family, and property.” Heller, 554 U.S. at 628. The founding generation, which
recognized “the inherent right of self-defense … central to the Second Amendment right,” would not have tolerated
such regulation. Id.
As Bruen observed, even laws that superficially look like historical analogues banning firearms or uses that are in common use today don’t satisfy step two. When searching
for a historical analogue to the challenged New York law in Bruen, the Court analyzed colonial statutes that “authorized justices of the peace to arrest ‘all Affrayers, Rioters,
Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively … by Night or by Day, in Fear or
Affray of Their Majesties Liege People.’” 597 U.S. at 46. The government argued that these statutes prohibited the
bearing of “any offensive weapons, including firearms.” Id. Even if so, the Court explained, the statutes were not
historical analogues:
Regardless, even if [the government’s]
reading of these colonial statutes were
correct, it would do little to support
restrictions on the public carry of handguns
today. At most, respondents can show that
colonial legislatures sometimes prohibited
YUKUTAKE V. LOPEZ 79
the carrying of “dangerous and unusual
weapons”—a fact we already acknowledged
in Heller. Drawing from this historical
tradition, we explained there that the Second
Amendment protects only the carrying of
weapons that are those “in common use at the
time,” as opposed to those that “are highly
unusual in society at large.” Whatever the
likelihood that handguns were considered
“dangerous and unusual” during the colonial
period, they are indisputably in “common
use” for self-defense today. They are, in fact,
“the quintessential self-defense weapon.”
Thus, even if these colonial laws prohibited
the carrying of handguns because they were
considered “dangerous and unusual
weapons” in the 1690s, they provide no
justification for laws restricting the public
carry of weapons that are unquestionably in
common use today.
Id. at 47 (final emphasis added) (citations omitted).
This analysis demonstrates that identifying a historical
analogue for a ban on a common-use firearm or firearm
usage is effectively impossible. The government in Bruen
came as close as one could. To save its modern restrictions on the public carry of handguns, the government identified a historical regulation that—assuming the government’s
interpretation was correct—also prohibited the public carry of handguns. Id. That wasn’t enough because, even if the
laws were nearly identical in operation (i.e., even if the “how” was similar), they were completely disparate in
purpose (i.e., the “why” was different). See id. The drafters 80 YUKUTAKE V. LOPEZ
of the historical statutes sought to “prohibit[] the carrying of dangerous and unusual weapons.” Id. (internal quotation
marks and citation omitted).
In contrast, if a modern government tried to ban a
practice that is “unquestionably in common use today,” it couldn’t have the objective of prohibiting “dangerous and unusual” activities or instrumentalities because, by
definition, things in common use are not unusual. Id.; see also Caetano, 577 U.S. at 417 (Alito, J., concurring) (“A weapon may not be banned unless it is both dangerous and
unusual.”). The only way to find a historical regulation with a similar “why” to a ban on a common-use practice would
be to identify a historical regulation that banned firearms or firearm usages that were also in common use during the
relevant historical period. And those historical regulations, of course, didn’t exist. See Heller, 554 U.S. at 627 (noting that “the sorts of weapons” historically protected by the Second Amendment were “those in common use at the
time”) (internal quotation marks and citation omitted).
The common-use rule is consistent with Bruen. And
because imposing it as a bright-line rule would strip our court of much of the wide discretion that we’ve
inappropriately manufactured for ourselves in Second
Amendment cases, it would significantly improve our
court’s approach to those cases. See Duncan, 19 F.4th at
1170–71 (VanDyke, J., dissenting).
2.
The second rule I propose—the outlier rule—arises from
the unremarkable proposition that “the Second Amendment
has the same meaning in all parts of the United States.”
Wolford, 146 S. Ct. at 2050. “Merely local attitudes can
neither shrink nor inflate the meaning of fundamental Bill of
YUKUTAKE V. LOPEZ 81
Rights guarantees that apply to the States through the
Fourteenth Amendment.” Id. But when states like Hawaii
enact novel rules that have few or no counterparts in other jurisdictions, they subject the Second Amendment right to “a widely varying patchwork quilt of state and local restrictions and bans that would be an embarrassment for any other
constitutional right.” Duncan, 19 F.4th at 1172 (VanDyke, J., dissenting).
Each of the state and local gun regulations that the
Supreme Court has invalidated on Second Amendment
grounds have been outliers. The laws prohibiting citizens from keeping a handgun in the home—which were the
subject of both Heller and McDonald—were “extreme
outlier[s]; only a few other jurisdictions in the entire country had similar laws.” Bruen, 597 U.S. at 78 (Alito, J.,
concurring). So too was the law struck down in Bruen,
which gave state authorities “discretion to deny
concealed-carry licenses even when the applicant satisfie[d] the [relevant] statutory criteria.” Bruen, 597 U.S. at 13–14. In stark contrast to New York, “the vast majority of States” provided that “authorities must issue concealed-carry
licenses whenever applicants satisf[ied]” the relevant
statutory criteria. Id. at 13. The laws at issue in Caetano and Wolford were outliers, too. See Caetano, 577 U.S. at
420 (Alito, J., concurring) (noting that “hundreds of
thousands of Tasers and stun guns have been sold to private citizens, who it appears may lawfully possess them in 45
States” (citation modified)); Wolford, 146 S. Ct. at 2045–46 (noting that, after Bruen, “Hawaii and four other States” enacted “new laws” providing that “no one carrying a
firearm may enter [private property open to the public]
without express authorization”).
82 YUKUTAKE V. LOPEZ
Although the Supreme Court didn’t directly strike down
these laws because they were outliers, it’s easy to see why it’s not a coincidence that all of them were outliers. Under Bruen, a challenged regulation must be “consistent with this Nation’s historical tradition of firearm regulation” to survive judicial review. 597 U.S. at 17 (emphasis added). Just
identifying one historical analogue—let alone one modern
regulatory innovation—won’t suffice to show a tradition. In fact, Bruen itself expressed doubt that “three colonial
regulations could suffice to show a tradition” justifying the New York law challenged there. Id. at 46. And, applying
Bruen, the Court has rejected the proposition that proposed historical analogues that were outliers during the relevant historical period could save a modern regulation from
invalidation. See Wolford, 146 S. Ct. at 2050 (“An outlier legal rule adopted in a few locales is not enough. And as we have explained, ‘overwhelming evidence’ shows an
‘enduring American tradition permitting public carry.’
Hawaii’s prohibitions on public carry represent a distinct outlier.” (citations omitted) (quoting Bruen, 597 U.S. at 67)).
So, in theory, the only way to justify a regulation that is an outlier today at Bruen’s second step would be to identify a historical analogue that wasn’t an outlier during the
relevant historical period. The fact that there are so many entirely unprecedented firearm regulations today (like
Hawaii’s) makes it extremely unlikely that such an analogue would ever exist.11 But even if there were such an analogue,
11
In both its petition for rehearing en banc and its supplemental brief, Hawaii devotes zero space to analyzing any potential historical analogue to the provisions challenged here. The majority follows suit. The fact that nobody contends that a historical analogue even exists for the challenged provisions shows that, if we had subjected those provisions
YUKUTAKE V. LOPEZ 83
that analogue almost certainly would fail to satisfy Bruen’s requirements. If governments of the past uniformly found it necessary to enforce a regulation—but if most of those
governments have since determined that the same regulation is now unnecessary—then the modern regulation and the
purported historical analogue would not be “comparably
justified.” Bruen, 597 U.S. at 29. The “why” would be
different, and the analogue would not be able to save the modern outlier from invalidation. See id. at 47.
States that enact firearm regulations that other states
have felt no need to enact are usually just trying to “us[e] their ‘laboratory of democracy’ to conduct ongoing
experiments on how to subject a fundamental right to death by a thousand cuts.” Duncan, 19 F.4th at 1172 (VanDyke,
J., dissenting) (citation omitted). Strictly applying the outlier rule would foreclose this strategy—a strategy that today’s majority pursues enthusiastically.
* * *
To be clear, the common-use and outlier rules cannot
solve every Second Amendment problem, because the rules
are not bidirectional. It’s not constitutional to ban unusual weapons just because they’re unusual any more than it’s
constitutional to ban unusual speech just because it’s
unusual. And enacting a firearm restriction that a majority of other states have enacted isn’t constitutional just because other states have done it, any more than banning all political speech would be constitutional just because a majority of states decided to do so. If all of law could be reduced to mechanical rules, we wouldn’t need lawyers or judges.
to Bruen’s second step, we could not have reversed the district court’s conclusion of a Second Amendment violation.
84 YUKUTAKE V. LOPEZ
That’s why we still need the unliquidated history-andtradition framework provided by Bruen and subsequent
Supreme Court precedent—for the truly difficult cases.
This, however, is not a difficult case. As Judge Nelson
correctly observes, the regulations that are challenged here are outliers, see Dissent of R. Nelson, J., at 19, so they are unconstitutional. We should have affirmed the district court on this basis.
III.
Frankly, our court’s scorched-earth approach to the
Second Amendment is getting exhausting. I haven’t even
been on the bench for that long, and I’ve lost count of the number of dissents that I’ve written in cases like this one, which is just another verse of the same boring song. I highly suspect 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. Until then, I will assiduously but wearily dissent.