Summary: The U.S. Court of Appeals for the Ninth Circuit sat en banc and upheld Hawaii’s restrictive handgun permitting and registration requirements, rejecting arguments filed in a friend-of-the-court brief by the Sportsmen’s Alliance Foundation.
The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, upheld Hawaii’s draconian requirements to purchase a handgun and rejected arguments the Sportsmen’s Alliance Foundation made in a friend-of-the-court brief.
Why the Sportsmen’s Alliance Fights Handgun Restrictions
The Sportsmen’s Alliance participated in this Second Amendment lawsuit because this battle is not just about handguns; it is about the future of all firearms. Justice Kavanaugh explicitly noted that “There is no meaningful or persuasive constitutional distinction between … handguns and … rifles.”
So, if Hawaii’s draconian permitting and registration laws are allowed to stand, then every state can impose the same restrictions across the board, making it much more burdensome for sportsmen to do what they enjoy.
What is required under Hawaii’s permit-to-purchase law?
Hawaii makes it very difficult to acquire a handgun. Under Hawaii law, everyone must acquire a permit to purchase a handgun. This process has the typical requirements that many permitting systems do, like undergoing a background check and providing details about the firearm being purchased.
But it has several atypical requirements.
- First, a permit is required for every handgun purchased.
- Second, the permit can only be issued between 14 and 40 days after the application is submitted.
- Third, the permit expires 30 days after it is issued.
- And fourth, if the purchase is not completed in 30 days, the process must begin anew.
That is not all. The seller must sign the permit and return it with the gun’s information to the permitting agency within 48 hours of the purchase. And the buyer must bring the firearm to the permitting agency for inspection within five days of completing the sale. Hawaii admitted in court that these laws are simply meant to “control” how people exercise their fundamental constitutional right to acquire a handgun.
Why does Hawaii often face Second Amendment litigation?
As the opinion noted, “Hawaii has ‘a tight web of laws that severely restrict’” the right to keep and bear arms. Because Hawaii has some of the most restrictive gun-control laws in the United States, it often finds itself in court defending them under the Second Amendment. Hawaiian courts are often at odds with the Supreme Court on the Second Amendment.
The Supreme Court has held that the Second Amendment should be interpreted according to its text, history, and tradition. This includes the right to carry a firearm established by the landmark Bruen decision in 2022. The Hawaii Supreme Court responded to that decision in 2022, by claiming “The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”
Justice Thomas would later point out the Hawaii Supreme Court’s “blatant defiance” of the U.S. Supreme Court’s Second Amendment holdings. And earlier this year, the Hawaii Supreme Court referred to the Supreme Court’s Second Amendment holdings as “deadly jurisprudence” that make “the country more dangerous” and “show disdain for Hawai’i’s constitutional traditions.”
Hawaii also sits within the Ninth Circuit Court of Appeals, another court that is at odds with the Supreme Court’s Second Amendment jurisprudence. In 2021, Ninth Circuit Judge VanDyke noted that the court had heard at least 50 cases under the Second Amendment and upheld the law every single time. That tradition continued. Earlier this year, the Supreme Court of the United States struck Hawaii’s vampire rule—after the Ninth Circuit Court of Appeals upheld it—in another case in which Sportsmen’s Alliance Foundation participated as a friend of the court.
What did the court rule today?
The court completely bypassed the test established by the Supreme Court’s 2022 Bruen decision. Instead of testing each statutory requirement against the Second Amendment’s text and historical tradition, the court treated Hawaii’s law as a “shall-issue” permitting regime and then held that these regimes are presumptively lawful regardless of the historical traditions protected by the Second Amendment.
“Bruen has three major holdings,” said Michael Jean, Litigation Counsel for Sportsmen’s Alliance Foundation.
- “First, it held that courts resolve Second Amendment cases by examining the Amendment’s text and the historical tradition of firearms regulation to determine whether a modern law is consistent with that tradition.
- Second, the text of the Second Amendment protects the right to carry a firearm.
- And third, there was no historical tradition of laws similar to modern ‘may-issue’ regimes that allowed carry permits to be denied based on subjective criteria.”
The Ninth Circuit, however, homed in on Bruen’s now famous footnote 9. “Footnote 9 says that the court is only deciding whether a may-issue licensing regime violates the Second Amendment, and its opinion should not cast doubt on objective, ‘shall-issue’ permitting laws that are not put toward abusive ends,” Jean explained. The Ninth Circuit, however, read that footnote to exempt shall-issue permits from the Second Amendment’s text and historical tradition test. Instead, the law is presumptively valid.
“Under this ruling, any permitting law is going to be upheld as long as it is a shall-issue law—regardless of how many hoops the state makes the person jump through or whether those hoops have any relationship to public safety or the founders’ understanding of the Second Amendment. I would expect the case to be appealed to the Supreme Court,” Jean concluded.
Protecting the Legacy of Hunters, Anglers, and Trappers
Cases like this are at the heart of the Sportsmen’s Alliance mission, and we will continue to monitor this important matter. Don’t stand on the sidelines—join us as a member or a donor of the Sportsmen’s Legal Defense Fund to protect tomorrow’s hunting, fishing, and trapping heritage today.
The Sportsmen’s Alliance guarantees hunting, fishing, and trapping for the American sportsman now and forever. We’re there when sportsmen need us most. We are the only organization specifically created to protect the individual hunter, angler, and trapper – no matter the threat. We will never compromise when it comes to defending our way of life in the courts, in the legislatures, in the public square, and at the ballot box. We make this promise to the American sportsman: we will never give up and never give in while proudly securing our future against those seeking to destroy our values, beliefs, and traditions. Stay connected to the Sportsmen’s Alliance: Online, Facebook, Twitter, and Instagram.
