Ninth Circuit Dissent Challenges Bruen Footnote 9 Interpretation in Gun Case
A dissent disputes the Ninth Circuit's use of Bruen Footnote 9 to uphold Hawaii gun laws.
Why it matters: This dissent highlights crucial legal reasoning for attorneys tracking shifts in Second Amendment jurisprudence and regulatory compliance.
- On Sept. 22, 2026, the en banc Ninth Circuit upheld Hawaii's 30-day handgun permit and 5-day firearm inspection laws in Yukutake v. Lopez by a 6–5 vote.
- The majority cited Bruen Footnote 9 to allow 'shall-issue' permits with objective criteria such as background checks.
- Judge R. Nelson dissented, arguing Footnote 9 does not exempt regulations from the textual and historical scrutiny required by Bruen.
- Legal experts criticize the majority for using Footnote 9 as a loophole that sidesteps Supreme Court standards.
On September 22, 2026, the en banc Ninth Circuit Court of Appeals ruled 6–5 in Yukutake v. Lopez, upholding two Hawaii statutes that regulate handgun acquisition. The laws require prospective handgun owners to obtain a permit within 30 days and submit to a firearm inspection within five days of acquisition.
The majority opinion interpreted Footnote 9 of the Supreme Court's 2022 Bruen decision as supporting 'shall-issue' licensing laws with objective, nondiscretionary criteria such as background checks and training requirements. This allowed the Hawaii statutes to stand.
However, Judge R. Nelson dissented sharply, arguing that Footnote 9 does not create a carve-out from the required text-and-history analysis that Bruen mandates for Second Amendment cases. Nelson’s dissent warned against treating a single footnote as a blanket exemption from constitutional scrutiny.
Legal commentators noted the Ninth Circuit's strained effort to reconcile its ruling with Bruen. Mark W. Smith criticized the majority for "treating a single Bruen footnote as if it excuses the government from history altogether." Meanwhile, Carrie Campbell Severino remarked that few courts "have worked harder to wriggle out of the Supreme Court’s landmark 2022 decision... than the Ninth Circuit."
This dissent underscores the contentious and evolving nature of Second Amendment jurisprudence, particularly concerning how courts interpret Bruen’s historical tradition requirement against modern firearm regulations.
By the numbers:
- 6–5 — en banc Ninth Circuit vote in Yukutake v. Lopez
- 30 days — period allowed for obtaining a handgun permit in Hawaii
- 5 days — timeframe to physically inspect a newly acquired firearm in Hawaii
Yes, but: The majority contends that Bruen's Footnote 9 explicitly permits certain 'shall-issue' licensing schemes with objective criteria, allowing some regulatory flexibility.