Ninth Circuit: Hawaii Gun Licensing Constitutional Bruen

• The Ninth Circuit's en banc panel reversed a lower court, upholding Hawaii's firearm licensing rules as constitutional.
• The court found Hawaii's 30-day permit expiration and police inspection requirements to be objective and non-abusive.
• Applying the Supreme Court's *Bruen* decision, the panel ruled that 'shall-issue' licensing regimes are presumptively constitutional unless they lead to 'abusive ends.'
• The majority determined that the challenged Hawaii regulations imposed only modest procedural burdens, not abusive ones that would deny Second Amendment rights.
• A dissenting judge argued the majority's interpretation of 'shall-issue' was too narrow and improperly shifted the burden of proof to citizens.

The court emphasized that for a 'shall-issue' licensing system to lose its presumptive constitutionality, challengers must demonstrate it is being applied toward 'abusive ends,' such as through excessive delays or prohibitive costs.

An en banc panel of the Ninth Circuit Court of Appeals recently overturned a lower court's injunction concerning specific firearm permit rules in Hawaii, affirming their constitutionality. The appellate court determined that the state's gun licensing regulations are objective and do not constitute an abuse of power, thereby rendering them presumptively constitutional. This decision reverses a 2021 ruling by a lower court that had blocked two key provisions of Hawaii's firearm permit system.

The initial injunction had prevented Hawaii from voiding permits for pistols or revolvers if the firearm had not been acquired within 30 days of issuance. It also struck down a requirement for applicants to present their newly acquired firearm at a police station in certain circumstances. Plaintiffs Todd Yukutake and David Kikukawa had challenged these provisions, arguing they infringed upon Second Amendment rights.

The Ninth Circuit's ruling was significantly shaped by the U.S. Supreme Court's landmark *New York State Rifle & Pistol Association v. Bruen* decision, issued nine months after the initial lower court injunction. *Bruen* established a new two-part test for Second Amendment claims: first, whether the plain text of the Second Amendment covers the conduct in question, and second, whether the challenged law aligns with America's historical tradition of firearm regulation.

Crucially, the *Bruen* ruling included a footnote clarifying that objective, non-abusive 'shall-issue' licensing regimes are presumptively constitutional. U.S. Circuit Judge John Owens, writing for the majority, highlighted *Bruen*'s distinction between 'shall-issue' and 'may-issue' systems. 'May-issue' schemes grant authorities discretion to deny permits even if an applicant meets specified criteria, while 'shall-issue' systems, like Hawaii's, limit criteria to objective requirements such as background checks and safety training, mandating issuance if these are met.

The Ninth Circuit majority, led by Judge Owens, concluded that Hawaii's firearm permit rules met the standard for presumptive constitutionality. The court emphasized that for a 'shall-issue' licensing system to lose its presumptive constitutionality, challengers must demonstrate it is being applied toward 'abusive ends,' such as through excessive processing delays or prohibitive costs that effectively deny citizens their Second Amendment rights. The panel noted that various judicial circuits have consistently upheld non-discretionary, non-abusive 'shall-issue' laws following *Bruen*.

In this case, the plaintiffs, Todd Yukutake and David Kikukawa, were required to show that the 30-day permit deadline and the police station inspection requirement led to such 'abusive ends.' However, the majority found no evidence in the plaintiffs' complaint to suggest these provisions crossed that threshold. Instead, the court characterized the regulations as imposing only 'modest, procedural burdens,' rather than constituting an abuse that would trigger Second Amendment protections.

The Ninth Circuit's decision was not unanimous, with U.S. Circuit Judge Ryan Nelson authoring one of three dissenting opinions. Judge Nelson criticized the majority's interpretation of 'shall-issue' regimes as overly narrow. He argued that objective rules within a 'shall-issue' scheme should not be automatically considered presumptively constitutional, and that the burden of proving a law is used abusively should not fall upon the citizen.

Judge Nelson further contended that Hawaii's challenged provisions, specifically the 30-day deadline and the police inspection, bear no direct relation to assessing whether a firearm applicant is a law-abiding and responsible individual. He pointed out that these requirements are triggered only after an applicant has already completed background checks and satisfied other initial criteria, suggesting their purpose is not directly tied to public safety or applicant suitability.

This decision provides critical guidance on how the Ninth Circuit interprets the *Bruen* test for 'shall-issue' firearm licensing regimes, establishing a high bar for challenging such regulations. Lawyers must advise clients that objective, non-abusive licensing rules are presumptively constitutional, requiring challengers to prove 'abusive ends' rather than just procedural burdens.

Source: Reporting based on CN's original coverage.