Judge R. Nelson’s dissent in the Ninth Circuit’s Yukutake ruling presents a thorough critique of footnote 9.
Having determined that carrying a handgun in public falls within the textual scope of the right to “bear arms,” the Supreme Court in Bruen added that the historical record compiled by New York did not demonstrate a tradition of broadly prohibiting public carry for self-defense or of requiring individuals to show a special necessity for self-defense. It then included footnote 9 to clarify that “nothing in our analysis should be interpreted as signaling the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, where a general wish for self-defense suffices to obtain a permit.” Nevertheless, the Court cautioned that “because any licensing framework can be misused, we do not foreclose constitutional challenges to shall-issue regimes where, for instance, lengthy processing delays or exorbitant fees prevent ordinary citizens from exercising the right to public carry.”
To uphold restrictions that are not grounded in textual language or historical tradition, some lower courts have seized upon, and claimed to discern a broad meaning in, footnote 9. The most recent illustration is the Ninth Circuit’s September 22 en banc decision in Yukutake v. Lopez, which sustained Hawaii’s requirements that handgun purchasers obtain a handgun-acquisition permit that becomes void unless the purchase is completed within 30 days, and that the handgun be brought to a police station for physical inspection within five days of acquisition. The majority’s reliance on Bruen’s footnote 9 prompted a lengthy exposition on the topic by Judge Ryan Nelson, joined by Judges Daniel Bress, Lawrence VanDyke, Bridget Bade, and Danielle Forrest.
The following are among the principal observations regarding footnote 9 in Judge Nelson’s dissent. There are, in fact, additional references to footnote 9 scattered throughout his opinion.
But the majority erroneously maintains that New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1…., furnishes a “carve-out” or a “safe harbor” from Second Amendment scrutiny, thereby creating a distinct analytical category separate from Bruen’s framework. Maj. Op. ––––, ––––. Footnote 9 does not declare that all objective regulations within a “shall-issue” licensing regime are “presumptively constitutional.” Id. at ––––. It merely addresses “public carry” regulations that are not at issue in this case. Bruen, 597 U.S. at 38 n.9… And it does not shift the burden to citizens to show that a law governing protected conduct has been “put toward abusive ends.” Maj. Op. –––– (cleaned up). That interpretation violates Bruen’s explicit instruction that the government bears the burden of demonstrating that restrictions on the right to keep and bear arms align with the Nation’s historical tradition. 597 U.S. at 24….
Instead, footnote 9 described non-abusive regulations to ensure that only “law-abiding, responsible citizens” carry handguns outside the home, preserved challenges when a licensing system denies individuals their right to carry, and addressed only longstanding licensing regimes. Id. at 38 n.9… (citation omitted).
Hawaii’s challenged provisions are something else altogether. Hawaii requires handgun purchasers to obtain a handgun-acquisition permit that becomes void unless the buyer completes the purchase within 30 days, and it requires those acquiring certain firearms to bring them to a police station for a physical inspection within five days of acquisition. Haw. Rev. Stat. §§ 134-2(e), 134-3(c). Neither rule concerns determining whether applicants are “law-abiding, responsible citizens” eligible to exercise the Second Amendment right to public carry. Bruen, 597 U.S. at 38 n.9 … (quoting District of Columbia v. Heller, 554 U.S. 570, 635 … (2008)). In fact, the challenged laws operate after the applicant has completed a background check, firearms training, and a multitude of other prerequisites—i.e., after he has proven himself a “law-abiding, responsible citizen”—and has been issued a permit to purchase (not to carry) a handgun. And neither regulation was longstanding in 2022 when Bruen was issued.
Footnote 9 did not create a broad Second Amendment exemption for states to exploit with innovative restrictions that would fail Bruen’s test. The majority—like most lower courts—fails to understand (or even acknowledge) these distinctions. Never before has a single footnote in a Supreme Court opinion been so misread by so many lower courts in a manner that deprives so many Americans of their constitutional rights. The statements in footnote 9 are not the source of a separate constitutional framework; they merely illustrate how the framework the Court established could be applied in particular circumstances.
This case is especially troubling given that the challenged statutes appear to be part of Hawaii’s persistent and not-so-subtle efforts to circumvent the Second Amendment, suggesting that these laws are abusive under footnote 9…. Hawaii has only grown more resolute in its “blatant defiance” of the Supreme Court’s clear instructions on the Second 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.”). Yet Hawai’i’s “[m]ere local attitudes cannot shrink or expand the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.” Wolford, 146 S. Ct. at 2050.
A correct application of Bruen to Hawaii’s regulations makes this inquiry straightforward. First, the Second Amendment’s plain text covers the procurement of arms. A person cannot ordinarily “keep” a firearm without first obtaining it, and the law has long recognized that authorizing an act includes authorization of the necessary precursor acts. Luis v. United States, 578 U.S. 5, 26 … (2016) (Thomas, J., concurring in the judgment). Hawaii’s statewide restrictions govern the process by which ordinary citizens come into possession of handguns; possession is the central activity protected by the “right of the people to keep … Arms.” U.S. Const. amend. II (emphasis added). Second, Hawaii has not identified “a well-established and representative historical analogue” for either its abbreviated permit period or its acquisition-linked inspection requirement. Bruen, 597 U.S. at 30…. Since Hawaii has not carried the burden Bruen places on the government, we should have affirmed the district court’s decision. I respectfully dissent.
The majority improperly bypasses the controlling rule. “When the plain text of the Second Amendment covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at ––––. The government must then “justify its regulation by showing that it aligns with the Nation’s historical tradition of firearm regulation.” Id. The allocation of burdens matters. The text of the Second Amendment determines whether protection applies by default; history and tradition determine whether the government has rebutted that protection. Id. at ––––, ––––, ––––. Courts may not insert a standalone means-end inquiry before or between those inquiries. Id. at ––––. It strains credulity to read footnote 9 as creating a separate “carve-out” or “safe harbor” from Bruen’s overarching framework. Maj. Op. ––––, ––––.
Bruen directs our analysis. We err when we set Bruen’s holdings aside for a few clarifying phrases in one of its thirty-two footnotes. Footnote 9 does not address—and certainly does not govern—this case.
In the Supreme Court’s step-two discussion, footnote 9 is presented in full: [Deleted here.]
From the outset, footnote 9 deals with licensing for public carry, not with every objective regulation touching firearms. The circuit courts that have treated it as the latter have overread and misapplied the Court’s guidance…. In other words, the lower courts are missing Bruen’s forest for the trees of a single footnote.
The term “shall-issue” historically referred only to concealed-carry permitting regimes….
Likewise, “shall-issue” was used in Bruen to differentiate objective public-carry licensing schemes from New York’s discretionary approach….
Lower courts have misunderstood footnote 9 and broadened the term “shall-issue” to cover all objective regulations on the purchase, possession, carry, or transfer of firearms…. But the footnote expressly and repeatedly refers to “public carry,” “bearing arms,” and licensing officials’ discretion over concealed-carry permit applications. Bruen, 597 U.S. at 38 n.9…. Those elements are absent from the statutes Plaintiffs challenge.
This case concerns the acquisition of handguns for mere possession, including in the home, “where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628–29…. Plaintiffs do not challenge any aspect of Hawaii’s highly restrictive public-carry laws or permitting framework. See Wolford, 146 S. Ct. at 2046 & n.9 (Hawaii has “a tight web of laws that severely restricts the carrying of firearms for self-defense.”). Nor do Plaintiffs challenge Hawaii’s numerous requirements (e.g., fingerprinting, mental-health disclosures, training courses, fees, and background checks) merely to purchase a firearm initially.
Plaintiffs’ challenges target two other provisions: what happens if a permitted individual does not complete a handgun purchase within 30 days, and what must occur after certain firearms have been acquired. Haw. Rev. Stat. §§ 134-2(e), 134-3(c). These rules are not criteria for obtaining a carry permit. They bear no relation to “guiding licensing officials” in issuing public-carry permits through “narrow, objective, and definite standards.” Bruen, 597 U.S. at 38 n.9 … (cleaned up). Therefore, Hawaii’s regulations—which apply after a permit has been issued solely to possess a handgun at home—are entirely outside the scope of footnote 9.
The distinction is not mere formalism. Public carry and home possession rest on different historical traditions. See id. at 45–70 …. For instance, surety laws and prohibitions on carrying while intoxicated may illuminate public-carry regulation, but they would not automatically validate a restriction on home possession…. Rebranding “shall-issue” as a universal catch-all for all objective firearms licensing schemes—rather than a specific kind of public-carry-permit issuance scheme—undermines these distinctions. Footnote 9’s discussion of “shall-issue” public-carry regimes does not resolve this case.
