Hawaii has long been open about its hostility to Second Amendment rights, joining New York, Illinois, and other states that have proven to be fonts of litigation before the courts. Ironically, these states have proven a bonanza for gun rights advocates in triggering a series of massive losses before the Supreme Court and the expansion of protections under the Second Amendment. On the heels of a major loss before the Court in Wolford v. Lopez over its “Vampire Law,” the state (and the Ninth Circuit) are back again with a new controversy over the permissible limitations or regulations that can be placed on gun ownership. To paraphrase Jerry Maguire, it also seems that gun control advocates always have the Ninth Circuit at “Mahalo.”
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.”
The Second Amendment to the United States Constitution is simply written and abundantly clear to any but the stupidest (and/or most dishonest) among us. If Hawaii does not want to be governed by that Constitution, I think the solution is simple: cut them loose. The rest of the US does not benefit (beyond little bit of travel simplification that would be eminently in Hawaii’s interest to maintain) from Hawaii being a member of the Union. Dole Pineapple benefited greatly, but Dole plc is now incorporated in Ireland and uses paper losses on its US operations to offset its Irish tax, so losing Dole’s Hawaiian business would be a net benefit to the US taxpayer. Aloha (means “goodbye” as well as “hello”) Hawaii, c-ya, wouldn’t want to be ya! And good riddance piled on top.
The current state of gun laws in our country is a reflection of multiple SCOTUS years-long pro-rights decisions.
This is what winning looks like; the leftys nitpick, harrass and ‘eat out your substance’ but the Constitution stands.
Our system of government works for Americans, that is why the left must try to replace it.
“. . . after obtaining a state-issued permit.” (JT)
A free man exists by right. A slave exists by permission.
“To use the “shall issue” exception for such purposes threatens a torrent of such new limits in blue states.”
There-in lies the rub! To repeat an old TV phrase, “Danger, danger, Will Robinson!”… from the show, Lost In Space.
“the right of the people to keep and bear Arms, shall not be infringed.”
sure sounds like infringement to me.
Turley got the Headline wrong;
It should have said, “You had me at Aloha.”
Which to Hawaiians, means either Hello or Goodbye.
Mahalo means Thanks.
Seems like thinking has gone out of fashion. Cue Aretha Franklin
What did the Heller decision actually say:
“In District of Columbia v. Heller, the U.S. Supreme Court ruled in 2008 that the Second Amendment protects an individual’s right to possess a firearm unconnected to militia service for traditionally lawful purposes like self-defense within the home” — Gemini AI
When Turley describes Heller, he strips out the qualifiers, and shortens it into “the Second Amendment created an individual right to gun ownership”. If I recall from Heller, there was no argument that an AR-15 semi-automatic rifle with a 30-round mag qualifies as such a traditional, in-home self-defense weapon — rather it cited the right to own a pistol for that purpose.
That said, I think what Hawaii is doing comes too close to the Bruen scheme, making state bureaucrats into supervisors of individual gun ownership decisions. But, if they took a regulatory approach that denied bureaucrats that supervision, but placed in a decentralized manner (e.g., liability insurance requirement), it might do better in the courts.
Last night, in my town, a newly elected Representative held a Town Hall. Every person had to be searched for firearms before entering. That makes me sick to my stomach. The idea that a few self-absorbed zealots would decide to come to a political meeting armed (in order to signal power over fellow citizens) is a roll-back of civilized living.
Where did the judge/justice obtain the power to amend the Constitution?
“…unconnected to militia service for traditionally lawful purposes like self-defense in the home.”
The LAW says, “The right of the people to keep and bear arms shall not be infringed.”
That is all anyone needs to know.
PEOPLE KEEP AND BEAR ARMS
You are correct that the gun in question in Heller was a handgun.
You are incorrect in presuming that firearms only means handguns.
The Pennsylvania rifle – which was the sniper rifle of the colonial era was in common use when the constitution was drafted.
When the 14th amendment was written – the priviledges and immunities clause of which was written specifically to assure that freed blacks could defend themselves, and which imposed the 2nd amendment on the states, Gatling guns were arround most homesteaders had Henry repeating rifles – as did the “native americans”,
Today’s AR-15 does not have a significantly higher rate of fire from a Civil War era Henry Repeating rifle that was in common use throughout the west and either it or another manufacturer’s equivalent is seen in virtually every western ever.
Further the Magazine capacity of an AR-15 is the same or lower than the civil war era repeating rifles.
The AR-15 is the boogey monster of the left. The 90’s er AWB – Assault Weapon Ban did nothing more than ban “scarry” looking weapons.
Which is what most modern left wing nut effort to restrict guns right do.
These laws are inconveniences for legal gun owners, not even speed bumps for criminals, and accomplish nothing.
But then that is the norm for pretty much everything the left seeks
obamacare was supposed to fix healthcare. Instead it has made things worse – much worse and more expensive
And democrats have the termidity to blame republicans.
Most of the judges and justices of the judicial branch and Supreme Court must be impeached and convicted for their abject failure to support the Constitution and their deliberate acts to subvert it.
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Article 2, Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
If we had solid conservative Supremes, you know the ones with a spine, this would/could have been solved with Heller or Brien. To wit “we declare that all gun laws at any and every level are infringements on the 2nd Amendment and are hereby declared null and void.” But NOOOOO! We have a Chief Justice that is unwilling to lead.
So, you think a country where anybody can buy RPGs is going to better? Think through the criminal gang possessing such military weaponry. Your complete removal of any restrictions is inconsidered and reckless.
The Constitution removes—or, rather, omits—any qualifications from that fundamental law.
You need to cite legal authority for your collectivist meanderings.
That sounds like a police matter. We have police to catch bad guys here in America. Are these criminal gangs planning a war? we have soldiers for that.
these gangs you speak of don’t sound like they’re very smart. reckless? inconsidered? we built this country on considering how to handle bad guys, it was HOW we got started! I think you just don’t think about how we got to where we are.
Do you think a criminal gang cares one iota whether a weapon is legal or not ?
Your beleif that restrictions are of any benefit is inconsidered and reckless.
The Founders, Framers, Constitution, and Bill of Rights were—and remain—fundamentally conservative.
Social Security, Medicare, Medicaid, Obamacare, welfare, affirmative action, and the broader culture of “free stuff” and “free status” represent a communist American welfare state—an utter abomination and a perversion of America’s essential ideology.
People getting rich by virtual slavery is a failed system.
When the rich get richer and the poor stay poor, this is evidence that capitalism does not work for the poor, it only works for the rich.
What works for the poor is getting a job.
Statistics show about 45 to 50 percent of the children of parents in the bottom 20 percent move to at least the 50 percentile. That is, if you were born to parents in the bottom 20 percent, it’s almost a coin flip that you will be above the national average in adulthood
It is not a coin flip – it is based on the choices people make.
Make good choices – you have a 99% chance of moving up. Make bad ones you have a 100% chance of getting worse.
Where do you get your facts? The 1% pays 40% of our taxes. look it up commie, your revolution has succeeded.
The 1% has 50% of the wealth but only pays 40% of the taxes. That 1% has seen their wealth double in the last decade. The rest of seen a few percent increase.
So what ? Wealth has increased dramatically. If you have been alive for more than a few decades you are much wealthier than you were in the past. Absent stupid mistakes like committing crimes
I would further note that “the Wealth” of the top 1% is INVESTED – which is why thing are getting better for the rest of us.
The core of capitalism is that the investment of capital makes us more productive and raises standard of living.
Elon Musk is likely a million times wealthier than you.
Do you think he lives a million times better than you ? How about 1000 time better ? or even 10 times better ?
He probably wears nicer clothes, eats at better resteraunts, drives a better care and cn go places in his own jet.
All that is nive, but it is not 10 times better than you live.
Musks wealth is INVESTED in making EVERYONE’s life better.
Confiscate that wealth and the investment disapears and the rate at which ALL of out lives improves drops to near zero – or worse.
It is highly unlikely that you will ever become Elon Musk.
But you too can invest and in a couple of decades you can be wealthy.
And yet the poor are not getting poorer.
Do you live in the reap world ?
Pick any time more than 20 years in the past and return to it and see if your life is not much better today ?
That is true whether you are rich or poor.
In the 17th century 99.9% of people sent 97% of their time eaking out the basics of food and shelter
They did not eat well and their homes were small and crappy – if they even had a home.
Their left expectancy was about 25 years.
Today the US working class is better off than european middle class.
Mississippi residents are overall doing as well as europeans.
But even eurpeans are doing better than their parents and their parents better than ….
Accross the world nearly everyone is doing about 4 times as well on average as 1965 – and there are more than twice as many people.
We are eating twice as much a day and we are eating far better.
There is no nation in the world that is not capable of feeding its own people but from politics.
The left is a malthusian doom cult.
Reality is that fre markets have made all of us much better off, All americans, All westerners, A the people of the world.
John Say, spot on.
Where is your evidence that communism does not work?
The history of 20th-century Russia and the Union of Soviet Socialist Republics.
“History”. look it up.
A long historical list of failures starting with the French Revolution.
Or read the Gulag Archepelgo.
Or just face the facts.
Communism is everyone getting an equal slice of the same pizza
Capitalism is letting those who provide us with 10 times as much pizza get a bigger slice.
What kind of dope are you?
This is all so tired. The modern left are globalist communists, and they want you silenced, they want you unarmed, so they can step on you, period. This goes back to medieval aristocracy. Tell them to **** off with your votes. We do not need to bend the knee, and they know it. They can blow right back to the middle ages where their stupid mentality belongs.
For young idiot communists: go back home to mom and dad’s money and let the grown ups figure things out, ok? If you’d like to be considered as something other than sp*rm cells that got lucky – grow the eff up.
“Globalist Communists” is redundant.
You can’t be a globalist without being a communist.
And you can’t be a communist without being a globalist.
Freedom and Self-Reliance.
That’s the ticket!
The dissenting judge is basically saying SCOTUS grow some balls and make definitive rulings.
“SCOTUS [MUST] grow some b—s and make [constitutional] rulings.”
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“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what [their powers] forbid.”
“Heller decision finding that the Second Amendment created an individual right to gun ownership”
The first court case that claimed that the Second Amendment was NOT an individual right was United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942).
Minority report.
Judge Van Dyke seems like quite an interesting fellow. I remember he had some choice words in a dissent in a previous case, possibly on men invading women’s sports (?)
#WeAreEstovir
He knows obstructionism when he sees it.
With an abject and absolutely corrupt, anti-Constitution, and anti-American judicial branch, one that would have us believe its members cannot read plain English, how far off is the Second American Revolution?
The 9th Circuit agrees with the Hawaii Supreme Court that 2A doesn’t apply in that state, having been overridden by the Aloha Spirit. But it knows it can’t say that directly so it has to clothe it in different words.
#WeAreEstovir