Having found the carrying of a handgun in public to be encompassed textually in the right to "bear arms," the Supreme Court in Bruen added that the historical record compiled by New York failed to demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense or of requiring citizens to demonstrate a special need for self-defense.
asserted
record → find → defense
It then inserted footnote 9 to that statement, explaining 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]."
asserted
desire → insert → permit
However, the Court warned that "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.
asserted
times → warn → carry
In order to uphold restrictions not based on text or historical tradition, some lower courts have latched onto, and purported to find an expansive meaning in, footnote 9.
asserted
courts → uphold → meaning
The latest example is the Ninth Circuit's September 22 en banc decision in Yukutake v. Lopez, which upheld Hawaii's requirements that handgun purchasers obtain a handgun-acquisition permit that is void unless the purchase is completed in 30 days, and the handgun is presented for physical inspection within five days at the police station.
asserted
handgun → uphold → station
The majority's reliance on Bruen footnote 9 prompted a lengthy disquisition on the subject by Judge Ryan Nelson, jointed by Judges Daniel Bress, Lawrence VanDyke, Bridget Bade, and Danielle Forrest.
asserted
reliance → prompt → Bress
The following are some of the leading comments on footnote 9 in Judge Nelson's dissent.
asserted
following → follow → dissent
But the majority incorrectly holds that footnote 9 of New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1…, creates a "carve-out" or "safe harbor" from Second Amendment scrutiny, and is thus analytically distinct from Bruen's framework.
asserted
footnote → hold → framework
Footnote 9 does not say that all objective regulations placed within a "shall-issue" licensing regime are "presumptively constitutional."
asserted
regulations → say → regime
It only addresses "public carry" regulations not at issue here.
asserted
It → address → issue
And it does not shift to the citizen the burden to prove that a law governing protected conduct has been "put toward abusive ends."
asserted
law → shift → ends
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."
asserted
restrictions → violate → tradition
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.
asserted
system → describe → regimes
Id. at 38 n.9… (citation omitted).
asserted
citation → omit → n.9
Hawaii's challenged provisions are something else.
asserted
provisions → challenge → ?
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.
asserted
it → require → acquisition
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."
asserted
applicants → have → carry
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 "law-abiding, responsible citizen"—and has been issued a permit to purchase (not carry) a handgun.
asserted
he → challenge → handgun
And neither regulation was "longstanding" in 2022 when Bruen issued.
asserted
Bruen → longstande → 2022
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.
asserted
that → create → test
The majority—like most lower courts—fails to grasp (or even acknowledge) these differences.
asserted
majority → fail → 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.
asserted
footnote → misread → 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.
uncertain
Court → show → 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….
uncertain
laws → challenge → footnote
Hawaii has only grown more intransigent in its "blatant defiance" of the Supreme Court's clear commands on the Second Amendment.
asserted
Hawaii → grow → Amendment
Wilson v. Hawaii, ––– U.S. ––––, 145 S. Ct. 18, 21 … (2024) (Statement of Thomas, J., respecting the denial of certiorari) (citation omitted); cf. Granillo v. State, 158 Hawai'i 385, 593 P.3d 1, 28 (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.").
asserted
Wolford → respect → traditions
But Hawaii's "[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."
asserted
that → shrink → Amendment
A correct application of Bruen to Hawaii's regulations makes this case straightforward.
asserted
case → make → regulations
First, the Second Amendment's plain text covers the acquisition of arms.
asserted
text → cover → 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.
asserted
authorization → keep → acts
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."
asserted
possession → govern → people
U.S. Const. amend. II (emphasis added).
asserted
emphasis → add → ?
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.
asserted
Hawaii → identify → period
Because Hawaii has not carried the burden Bruen places on the government, we should have affirmed the district court's judgment.
asserted
we → carry → judgment
I respectfully dissent.
asserted
I → dissent → ?
The majority improperly side-steps the governing rule.
asserted
majority → step → rule
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct."
asserted
Constitution → cover → conduct
The government must then "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."
asserted
it → justify → regulation
The order matters.
asserted
order → matter → ?
So does the allocation of burdens.
asserted
allocation → do → burdens
…and 26 more, not listed.
The Aporia