The laws include a requirement that handgun owners “register and submit to physical inspection the firearm” as well as a requirement that buyers have 30 days to purchase a specified handgun after obtaining a state-issued permit.
In Yukutake v. Lopez, it is the inspection requirement that most stands out for me. Unable to ban guns, Hawaii and other blue states have histories of harassing or impeding these rights. The requirement of an inspection appears gratuitous and ahistorical under controlling precedent.
The Ninth Circuit ruled in this en banc decision that “the provisions impose only modest, procedural burdens, and do not materially impede Plaintiffs from acquiring firearms.” The inspection requirement does not seem to be either “modest” or a traditional requirement for gun ownership.
The majority is notably relying on a footnote from the Bruen decision that seems less than sufficient as the foundation for such a measure. More importantly, it would invite a series of harassing, impeding measures for gun owners.
Footnote 9 states that “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].'”
Judge Ryan D. Nelson flags the reliance on this footnote in his dissent:
“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.”
As a threshold matter, this footnote dealt with issuing carry licenses, not simply ownership, for handguns. The Ninth Circuit uses the footnote to suggest that any limitation short of the actual prevention of ownership is permissible:
“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. Rather, it appears that these 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.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” —features that typify proper-cause standards like New York’s.”
The majority is clearly cognizant that this could be a hole that blue states will use to pile up impediments and costs for gun owners. Accordingly, it added: “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.”
That may not be sufficient for the Supreme Court.
What is most interesting is how the history of Hawaii’s hostile gun regulations will play in the case. The Court is aware of the open effort in the state to increase costs and administrative measures for gun owners. To use the “shall issue” exception for such purposes threatens a torrent of such new limits in blue states.
In the Wolford decision, the Court treated limitations like the requirement for a prior approval to enter private business with a lawful weapon to be presumptively unconstitutional. It was a clear effort to create bright-line rules for states hostile to Second Amendment rights. The Court could take particular interest in the suggestion that such regulations as inspections are “common” in history.
The Ninth Circuit itself drew criticism from one of the dissenting judges for its enabling of such harassing laws. Judge Lawrence VanDyke wrote a scathing account of the circuit’s history on gun rights cases:
“… 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. 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.
… 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.”
We already have a major Second Amendment term in the making before the Court with the review of bans on semiautomatic weapons out of the Seventh Circuit in Chicago (Viramontes v. Cook County) and the Second Circuit in New York (Grant v. Higgins). I also wrote previously about the review of an important case from the Second Circuit on stun guns in Calce v. New York.
The addition of Yukutake would make this term the most consequential Second Amendment term since the Heller decision finding that the Second Amendment created an individual right to gun ownership.
We will be watching this one closely.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”