Ninth Circuit Panel Holds That the Second Amendment Prohibits Certain Requirements Regarding Firearm Permits and Physical Inspection

By V.R. Bohman and Xyzlo Lee

Introduction

A divided Ninth Circuit panel ruled that Hawaii cannot enforce laws that (1) allow acquisition of a handgun only within 30 days of obtaining the necessary permit and (2) require physical inspection of a firearm within five days of acquisition.¹ The panel held both laws facially unconstitutional under the Second Amendment.² Also addressed were Hawaii’s revisions to the statutes at issue.³ However, those revisions ultimately were not consequential to the Ninth Circuit’s ruling and are beyond the scope of this alert.⁴

Background

The case, Yukutake v. Lopez, involved two Hawaiian prospective firearm owners who sued Hawaii’s Attorney General to halt enforcement of two laws that impeded firearm acquisition.⁵ The prospective firearm owners did not contest Hawaii’s general permitting requirement, which requires an applicant to identify themselves, their mental health history, and allow the police to obtain their mental health records, fingerprints, photograph, and perform a background check.⁶ However, they challenged two specific provisions: (1) Hawaii Revised Statute Section 134-2(e), which caused permits for handguns to expire after thirty days and (2) Hawaii Revised Statute Section 134-3, which required every newly obtained firearm to be inspected at a local police station within 5 days of acquisition.⁷

The case originated in the federal District of Hawaii.⁸ The district court, faced with competing motions for summary judgment, granted the prospective firearm owners summary judgment under the intermediate scrutiny analysis then-applicable in the Ninth Circuit.⁹ The Hawaii Attorney General appealed, but before the Ninth Circuit could resolve the case, the United States Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022).¹⁰ Bruen rejected and replaced scrutiny-based analysis.¹¹ The Ninth Circuit chose to apply the Bruen analysis to Yukutake itself, rather than remanding to the district court for applications there.¹²

The Ninth Circuit’s Opinion

Under Bruen, the Constitution presumptively protects all conduct covered by the plain text of the Second Amendment.¹³ Further, regulation of such conduct is permitted only where the government can demonstrate such regulation is “consistent with the Nation’s historical tradition of firearm regulation.” 597 U.S. at 24 (citation omitted). The panel held that the challenged regulations restrained conduct covered by the Second Amendment and that Hawaii could not meet its burden in justifying either regulation.¹⁴

Striking Down § 134-2(e), regarding the 30-day acquisition period.

First, the panel reasoned that the right to possess firearms necessarily includes the right to acquire them, bringing the conduct regulated by Section 134-2(e) within the plain text of the Second Amendment.¹⁵ Hawaii therefore had to justify the regulation by demonstrating it to be consistent with America’s historical tradition of firearm regulation.¹⁶

Second, the panel determined that Hawaii could not justify the 30-day timeframe for acquiring a handgun.¹⁷ Hawaii argued that a permittee could “become ineligible” to acquire the handgun after acquiring a permit due to some change in their circumstances.¹⁸ The Court reasoned that while Hawaii has a presumably valid interest in ensuring that background-check results are not stale, the state failed to cite any evidence that such permits would become stale after 30 days.¹⁹ The Court did not substantively address the one-year expiration date that Hawaii imposes on rifle and shotgun permits, but it noted the inconsistency and diminished credibility in Hawaii’s argument that one year was appropriate for rifle and shotgun permits, compared to 30 days for handgun permits.²⁰

The panel concluded, “Hawaii’s imposition of a very short time limitation on the validity of an acquisition permit is impermissibly ‘abusive.’”²¹ Accordingly, it affirmed the district court’s judgment that this aspect of Section 134-2(e) was unconstitutional under the Second Amendment.²²

Striking Down § 134-3, regarding the physical inspection requirement.

Again, the panel reasoned requiring physical inspection of a firearm within 5 days of acquisition regulated conduct covered and presumptively protected by the Second Amendment, requiring Hawaii to justify the regulation consistent with American historical traditions of regulation.²³

The panel then determined that Hawaii failed to justify in-person inspection despite its asserted concerns regarding so-called “ghost guns,” including because the statute broadly applied to acquisitions of all types of firearms.²⁴ The panel concluded that the physical inspection bore “no logical or practical relationship whatsoever to the conduct of a background check” and affirmed the district court’s judgment that the requirement was unconstitutional under the Second Amendment.²⁵