Ninth Circuit finds lower court missed the mark in Hawaii firearms regulation case
An en banc panel of the Ninth Circuit determined Hawaii's gun licensing rules are objective and non-abusive, making them presumptively constitutional.
by Alan Riquelmy, Court House News, September 22, 2026
PASADENA, Calif. (CN) — An en banc panel of the Ninth Circuit on Tuesday reversed a lower court on Hawaii’s firearm licensing rules, finding they didn’t violate Second Amendment rights.
The lower court in 2021 issued an injunction against two parts of the Hawaii’s gun licensing rules. The state could no longer void permits to obtain pistols or revolvers that hadn’t been used after 30 days. It also couldn’t require an applicant to present their firearm at a police station in some cases.
Nine months after that ruling, the U.S. Supreme Court issued the landmark New York State Rifle & Pistol Association v. Bruen decision, which created a new test for determining Second Amendment claims. Courts must determine whether the Second Amendment’s plain text covers the conduct at issue. If it does, they then must decide if the challenged law is consistent with America’s history of regulating firearms.
“Yet in a footnote, the Bruen Court included an apparent carve-out to this test: objective, non-abusive ‘shall-issue’ licensing regimes are presumptively constitutional,” wrote U.S. Circuit Judge John Owens, a Barack Obama appointee, for the majority in the decision Tuesday.
The en banc panel took up the case after a divided three-judge panel of the federal appeals court had found Hawaii’s shall-issue licensing scheme was unconstitutional. The en banc panel disagreed and reversed the lower court’s injunction.
Writing for the majority, Owens looked through the lens of Bruen, a decision that hadn’t been issued when the lower court ruled in 2021. The judge said Bruen distinguished “shall-issue” licensing regimes from “may-issue.” A may-issue scheme gives authorities power to deny permits despite an applicant meeting certain criteria. The criteria of shall-issue schemes are limited to requirements like background checks and safety training.
“Unless a shall-issue law is ‘put toward abusive ends,’ such as through ‘lengthy’ processing delays or ‘exorbitant fees’ that effectively deny ordinary citizens their Second Amendment rights, it is presumptively constitutional,” Owens said.
Since Bruen, different judicial circuits have followed various legal pathways but reached the same spot: nondiscretionary, non-abusive shall-issue laws are constitutional, he added.
The plaintiffs, Todd Yukutake and David Kikukawa, needed to show the 30-day deadline to buy a firearm and the police station inspection led to “abusive ends” and denied citizens of their Second Amendment rights, Owens said.
“And while certain background checks, firearms safety courses, lengthy wait times, exorbitant fees, or other components of a shall-issue regime could trigger the Second Amendment’s protections, nothing in plaintiffs’ complaint suggests that either the thirty-day restriction or the police station inspection requirement crosses that line,” he added. “At most, the provisions impose only modest, procedural burdens.”
Writing one of the three dissents, U.S. Circuit Judge Ryan Nelson called the majority’s analysis of shall-issue regimes “narrow.” Objective rules in a shall-issue scheme aren’t presumptively constitutional, and the burden to show a law is used abusively isn’t placed on the citizen, he said.
Hawaii’s provisions have no relation to determining if a firearm applicant is a law-abiding and responsible citizen. Also, those provisions are only triggered once someone already has completed a background check and other requirements, the Donald Trump appointee added.
“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,” Nelson said, adding: “Hawaii has only grown more intransigent in its ‘blatant defiance’ of the Supreme Court’s clear commands on the Second Amendment.”
In another dissent, U.S. Circuit Judge Lawrence VanDyke pointed to what he called “brightline” rules he said could resolve many Second Amendment cases.
The first rule would prohibit a state from banning a firearm product or use if it’s prevalent throughout the country. The second would make a firearm regulation that most other states don’t have unconstitutional.
“Hawaii’s byzantine firearm-registration requirements are outliers,” VanDyke said. “Ergo, Hawaii shouldn’t be allowed to enforce them.”
Noting the dissents, Owens in the majority opinion said he hoped the U.S. Supreme Court will determine which analysis is correct.
Attorney Alan Beck, representing the plaintiffs, told Courthouse News in a statement that the Ninth Circuit decision contradicts Bruen and Wolford v. Lopez, a 2025 U.S. Supreme Court decision on Second Amendment rights.
“I will be filing a writ of certiorari with the U.S. Supreme Court in short order,” he said.
Representing the defendants, attorney Jo-Ann Sagar couldn’t immediately be reached for comment.
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YUKUTAKE V. LOPEZ: 9th Circuit Upholds Hawaii Gun-Purchase Restrictions
AMMOLAND: “In a 6–5 en banc decision in Yukutake v. Lopez, the court reversed a permanent injunction against Hawaii’s 30-day handgun-permit deadline and its requirement that certain newly acquired firearms be physically presented to police for inspection.”
TEXT OF SUMMARY PREPARED BY COURT STAFF
(This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.)
The en banc court reversed the district court’s injunction that blocked the implementation of the State of Hawaii’s firearm licensing regime on Second Amendment grounds, and remanded for further proceedings.
Hawaii is a “shall-issue” jurisdiction for firearm permits, meaning that as long as an applicant satisfies certain requirements, they may obtain a firearm. This differs from a “may-issue” regime, where the State retains some discretion in deciding whether to issue a firearm license to an applicant.
Plaintiffs Todd Yukutake and David Kikukawa challenged the constitutionality of two requirements of Hawaii’s shall-issue regime:
1) Hawaii Revised Statutes § 134-2(e), which provides a narrow time window within which to acquire a handgun after obtaining the requisite permit; and
2) Hawaii Revised Statutes § 134-3, which provides that once the applicant has obtained the firearm, a form with information about the firearm must be completed, and one must bring the firearm to a police station for inspection in certain circumstances.
The district court granted summary judgment to Plaintiffs, concluding that the challenged aspects of both provisions were facially unconstitutional under the Second Amendment and permanently enjoined their enforcement.
After the injunction was entered, the Supreme Court issued New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), which outlined how courts should analyze shall-issue regimes like Hawaii’s. While Bruen instructs courts to engage in a two-step inquiry when evaluating Second Amendment claims, the en banc court wrote that Bruen distinguished shall-issue from may-issue regimes and, in footnote 9, included an apparent carve-out to the two-step test, providing that objective, non-abusive “shall-issue” licensing regimes are presumptively constitutional. The en banc court further wrote that despite a wide range of methodological approaches to assessing shall-issue regulations after Bruen, the circuit courts have converged on one unifying principle: non-abusive, shall-issue laws comport with the Second Amendment.
With the guidance of Bruen, the en banc court held that Hawaii’s shall-issue regime comports with the Second Amendment because Plaintiffs failed to show that the two challenged provisions, which are presumptively lawful, have been put toward abusive ends that would effectively deny ordinary citizens their Second Amendment rights. Rather, at most, the provisions impose only modest, procedural burdens, and do not materially impede Plaintiffs from acquiring firearms.
Dissenting, Judge R. Nelson, joined by Judges Bress and VanDyke, and joined except as to Part I–C by Judges Bade and Forrest, wrote that the majority incorrectly holds that footnote 9 of Bruen creates a “carve-out” or “safe harbor” from Second Amendment scrutiny, and is thus analytically distinct from Bruen’s framework. He wrote that the correct application of Bruen to Hawaii’s regulations makes this case straightforward. First, the Second Amendment’s plain text covers the acquisition of arms, and Hawaii’s statewide restrictions govern the process by which ordinary citizens take possession of handguns. Second, Hawaii has not identified a representative historical analogue for either its short permit use period or its acquisition-linked inspection mandate. Accordingly, because Hawaii has not carried the burden Bruen places on the government, the en banc court should have affirmed the district court’s judgment.
Dissenting, Judge Forrest joined all but Part I–C of Judge Nelson’s opinion explaining the problems with the majority’s approach and wrote separately to address the scope of the injunction issued. Judge Forrest would have affirmed the district court on the merits and remanded with instructions for the district court to narrow its permanent injunction in light of Trump v. CASA, Inc., 606 U.S 831 (2025), because there is no need to enjoin enforcement of Hawaii’s challenged laws against anyone other than Plaintiffs to afford Plaintiffs complete relief.
Dissenting, Judge VanDyke proposed two “bright-line” rules that he believes could resolve a large part of this court’s Second Amendment cases and accord with Supreme Court precedent:
(1) if a firearm product or usage that a state seeks to ban is currently prevalent throughout our nation, then it should simply be unconstitutional to ban it; and
(2) if a state has a firearm regulation that most other states don’t have, then the regulation should be unconstitutional.
Applying these bright-line rules, Judge VanDyke would hold that because the challenged regulations here are outliers, they are unconstitutional….
read … RULING
AMMOLAND: Ninth Circuit Flips Bruen Burden in Hawaii Gun Case
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NINTH CIRCUIT UPHOLDS HAWAIʻI FIREARM LICENSING REQUIREMENTS
News Release 2026-56 from Department of the Attorney General, Sept. 22, 2026
HONOLULU – The U.S. Court of Appeals for the Ninth Circuit today upheld important provisions of Hawaiʻi’s firearm licensing laws, finding that the challenged requirements are consistent with the Second Amendment.
In the opinion, the court upheld Hawaiʻi’s requirements establishing a 30-day period to use a permit to acquire a handgun and requiring certain newly acquired firearms to be brought to a police station for inspection.
“This decision recognizes that Hawaiʻi can protect public safety through reasonable, objective firearm regulations while respecting the rights guaranteed by the Second Amendment,” said Attorney General Anne Lopez. “We will continue to vigorously defend laws that protect Hawaiʻi’s communities and are consistent with the Constitution.”
The Ninth Circuit recognized that Hawaiʻi, like other states, is a “shall-issue” jurisdiction for firearm permitting, meaning that an applicant who satisfies the state’s objective requirements may obtain a permit. The court explained that under U.S. Supreme Court precedent, objective, non-abusive “shall-issue” licensing regimes are presumptively constitutional.
The court then concluded that the plaintiffs had failed to demonstrate that the two presumptively lawful requirements challenged in this case have been put toward “abusive ends” that would effectively deny Second Amendment rights. The court determined that the challenged requirements impose only “modest, procedural burdens” and “do not materially impede Plaintiffs from acquiring firearms.”
The case, Yukutake v. Lopez, was filed in 2019. A federal district court ruled in plaintiffs’ favor in 2021. Following the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, the case ultimately went before an 11-judge en banc panel of the Ninth Circuit. The Ninth Circuit reversed the district court’s judgment and remanded the case for further proceedings.
The case was handled by the Department’s Appellate Division and Hogan Lovells Cadwalader.
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