FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD YUKUTAKE; DAVID No. 21-16756

KIKUKAWA,
D.C. No. 1:19-cv-
Plaintiffs-Appellees, 00578-JMS-RT

v.
OPINION
ANNE E. LOPEZ, in her Official
Capacity as the Attorney General of
the State of Hawaii,

Defendant-Appellant,

and

CITY AND COUNTY OF

HONOLULU,

Defendant.

Appeal from the United States District Court

for the District of Hawaii
J. Michael Seabright, District Judge, Presiding

Argued and Submitted February 14, 2023

Honolulu, Hawaii

Filed March 14, 2025

2 YUKUTAKE V. LOPEZ

Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K.

Lee, Circuit Judges.

Opinion by Judge Collins;

Concurrence by Judge Lee;
Dissent by Judge Bea

SUMMARY*

Second Amendment

The panel affirmed the district court’s summary

judgment for Todd Yukutake and David Kikukawa in their
action seeking declaratory and injunctive relief to prevent
the Attorney General of Hawaii from enforcing two
provisions of Hawaii’s firearms laws on the ground that the
provisions violate the Second Amendment.
First, plaintiffs challenged the constitutionality of
Hawaii Revised Statutes § 134-2(e), which provides a
narrow time window (originally 10 days, and now 30 days)
within which to acquire a handgun after obtaining the
requisite permit. The permit application process includes a
background check. Second, plaintiffs challenged § 134-3 to
the extent that, as part of Hawaii’s firearms registration
process, it requires a gun owner, within five days of
acquiring a firearm, to physically bring the gun to a police
station for inspection. The district court concluded that the
challenged aspects of both provisions were facially

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 YUKUTAKE V. LOPEZ 3

unconstitutional under the Second Amendment and

permanently enjoined their enforcement.
The panel denied the State’s motion to dismiss the appeal
as moot due to recent legislative amendments to both of the
challenged provisions. The amended versions were
sufficiently similar to the previous versions that any
presumption of mootness was rebutted.
The panel affirmed the district court’s judgment that
§ 134-2(e)’s short timeframe for completing a firearms
purchase after obtaining a permit was unconstitutional under
the Second Amendment. The purchase and acquisition of
firearms is conduct protected by the plain text of the Second
Amendment. Because § 134-2(e) regulates conduct covered
by the Second Amendment’s plain text, the Second
Amendment presumptively protects that conduct. The
burden therefore fell on the State to justify its regulation by
demonstrating that it is consistent with the Nation’s
historical tradition of firearms regulation.
The panel evaluated the State’s justifications for § 134-
2(e) pursuant to the guidance provided in New York State
Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 38 (2022),
footnote 9, which acknowledged that background checks can
serve the historically based valid purpose of ensuring that
firearms are possessed by law-abiding, responsible
citizens. In Section IV(B)(3) of the opinion, which Judge
Lee did not join, Judge Collins interpreted Bruen’s footnote
9 as drawing on First Amendment jurisprudence to assess the
constitutionality of specific aspects of a background-check-
based permitting system. Such a permitting system must be
guided by narrow, objective and definite standards and not
employ abusive features, such as lengthy wait times, to deny
ordinary citizens their Second Amendment rights. Applying
4 YUKUTAKE V. LOPEZ

this guidance, Judge Collins determined that the State did

not carry its burden to justify the very short temporal limit
on firearms acquisition permits. Although the State
presumably has a valid interest in ensuring that the
background-check results are not stale, the State pointed to
no evidence that anything over 10 days or 30 days counts as
stale. In Section IV(B)(4) of the opinion, the panel
concluded that the temporal limitation was “abusive” within
the meaning of Bruen and remanded for the district court to
revise its permanent injunction, as appropriate, in light of the
recent amendment to § 134-2(e) and to conform to the
panel’s ruling.
The panel affirmed the district court’s conclusion that
§ 134-3’s in-person inspection requirement violates the
Second Amendment. Even assuming arguendo that
Hawaii’s basic system of registering firearms by owner,
type, serial number, etc., was valid under Bruen—a point the
panel did not decide—Hawaii’s broad in-person inspection
requirement could not be justified as merely a proper
ancillary logistical measure in support of such a system. The
government failed to point to evidence supporting its
conclusion that the addition of a broadly applicable and
burdensome physical inspection requirement will materially
advance the objectives of the registration system. As with
plaintiffs’ challenge to § 134-2(e), the panel remanded to the
district court to revise its permanent injunction, as
appropriate, in light of the recent amendment to § 134-3 and
to conform to the panel’s ruling.
Concurring, Judge Lee joined in the opinion except for
the discussion on how to interpret the opaque dicta in
footnote 9 of Bruen. Without more guidance from the
Supreme Court, Judge Lee is reluctant to say that even a
limited means-ends inquiry is appropriate, especially given
 YUKUTAKE V. LOPEZ 5

the Court’s emphatic rejection of such analysis in Bruen. He

would construe footnote 9 to require the government to
provide a historical analogue to justify the temporal limit on
firearm permits. The state of Hawaii failed to do so. It thus
could not restrict the Second Amendment right of its people.
Dissenting, Judge Bea stated that neither the text of the
Second Amendment nor precedent presumptively prohibit
the government from imposing facially neutral ancillary
regulations on the acquisition of firearms. The majority’s
critical error was its conclusion that the acquisition of a
firearm by an individual, through purchase or otherwise, is
conduct covered by the plain text of the Second
Amendment. This conclusion conflicts with controlling
Circuit precedent and creates a split between this Circuit and
at least two others over how to apply Bruen’s still-novel
historical test to cases like this one. Moreover, on this facial
challenge, plaintiffs had neither alleged nor proven that they
or anyone else is in practice denied their rights to keep and
carry arms. They failed to carry their burden of proving that
the regulations were abusive within the meaning of Bruen
footnote 9 and this court’s precedents. Judge Bea would
reverse the district court’s judgment and vacate the
permanent injunction.

COUNSEL

Alan A. Beck (argued), Law Offices of Alan Beck, San

Diego, California; Stephen D. Stamboulieh, Stamboulieh
Law PLLC, Olive Branch, Mississippi; for Plaintiffs-
Appellees.
Robert T. Nakatsuji (argued), First Deputy Solicitor
General; Kalikoonalani D. Fernandes, Deputy Solicitor
6 YUKUTAKE V. LOPEZ

General; Caron M. Inagaki and Kendall J. Moser, Deputy

Attorneys General; Kimberly T. Guidry, Solicitor General;
Holly T. Shikada, Hawaii Attorney General; Office of the
Hawai’i Attorney General, Honolulu, Hawai’i; for
Defendants-Appellants.
Kevin O’Grady, Law Office of Kevin O’Grady LLC,
Honolulu, Hawai’i, for Amicus Curiae Hawai’i Rifle
Association.
Donald E.J. Kilmer Jr., Law Offices of Donald Kilmer,
Caldwell, Idaho, for Amici Curiae The Second Amendment
Foundation and The Madison Society Foundation, Inc.
Erin M. Erhardt and Michael T. Jean, National Rifle
Association of America, Institute for Legislative Action,
Fairfax, Virginia, for Amicus Curiae National Rifle
Association of America, Inc.
Jeremiah L. Morgan, William J. Olson, and Robert J. Olson,
William J. Olson PC, Vienna, Virginia; Rick Boyer,
Integrity Law Firm PLLC, Lynchburg, Virginia; John I.
Harris, Schulman Leroy & Bennett PC, Nashville,
Tennessee; Joseph W. Miller, Law Offices of Joseph Miller
LLC, Fairbanks, Alaska; for Amici Curiae Gun Owners of
America, Inc., Gun Owners Foundation, Gun Owners of
California, Heller Foundation, Oregon Firearms Federation,
Tennessee Firearms Association, Virginia Citizens Defense
League, Grass Roots North Carolina, America’s Future, Inc.,
Conservative Legal Defense and Education Fund, and
Restoring Liberty Action Committee.
 YUKUTAKE V. LOPEZ 7

OPINION

COLLINS, Circuit Judge:1

Plaintiffs-Appellees Todd Yukutake and David

Kikukawa filed this action seeking declaratory and
injunctive relief preventing the Attorney General of Hawaii
from enforcing two provisions of Hawaii’s firearms laws on
the ground that those provisions violate the Second
Amendment, as incorporated against the States by the
Fourteenth Amendment. First, Plaintiffs challenge the
constitutionality of Hawaii Revised Statutes § 134-2(e),
which provides only a narrow time window (originally 10
days, and now 30 days) within which to actually acquire a
handgun after obtaining the requisite permit. See HAW. REV.
STAT. § 134-2(e). Second, Plaintiffs challenge § 134-3 to
the extent that, as part of Hawaii’s firearms registration
process, it requires a gun owner, within five days of
acquiring a firearm, to physically bring the gun to a police
station for inspection. 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 enjoining
their enforcement. See Yukutake v. Conners, 554
F. Supp. 3d 1074, 1080 n.6 (D. Haw. 2021); see also id. at
1090–91. We affirm.
I
Plaintiffs Todd Yukutake and David Kikukawa are
firearm owners who reside in Honolulu County and who
wish to acquire additional firearms in the future. They
brought this action against the Hawaii Attorney General

1
Judge Lee joins all but Section IV(B)(3) of this opinion.
8 YUKUTAKE V. LOPEZ

(hereinafter simply “Hawaii” or “the State”), seeking

declaratory and injunctive relief against the enforcement of
two Hawaii statutes concerning the permitting and
registration of firearms.2 Plaintiffs’ operative complaint
alleged that the two challenged provisions unconstitutionally
infringed the Second Amendment right to keep and bear
firearms for self-defense, both as applied to Plaintiffs and as
a facial matter.
Specifically, Plaintiffs first challenged one particular
aspect of the permitting process that is described in § 134-2
of the Hawaii Revised Statutes. Importantly, Plaintiffs’
complaint did not contest Hawaii’s general requirement that,
before “acquir[ing] the ownership of a firearm,” a person
must “first procure[] from the chief of police” of the relevant
county “a permit to acquire the ownership of a firearm as
prescribed in this section.” HAW. REV. STAT. § 134-2(a). To
acquire such a permit, a person must submit an application
that includes specified identifying information, information
about the applicant’s mental health history, and a signed
waiver allowing the police to obtain mental health records.
Id. § 134-2(b)–(c). The applicant must also be fingerprinted
and photographed by the police department, unless the
department already has such information on file. Id. § 134-
2(b). To allow the police department to conduct a
background check, “no permit shall be issued to an applicant
earlier than fourteen calendar days after the date of the
application.” Id. § 134-2(e). The one aspect of the
permitting process that Plaintiffs challenged below is the
following provision of § 134-2(e): “Permits issued to

2
Plaintiffs’ original complaint asserted additional claims against the City
and County of Honolulu, but the parties later stipulated to the City and
County’s dismissal from this action with prejudice pursuant to a
settlement agreement.
 YUKUTAKE V. LOPEZ 9

acquire any pistol or revolver shall be void unless used

within ten days after the date of issue.”3 HAW. REV. STAT.
§ 134-2(e) (2018). This short period of time to acquire the
firearm applies only to permits concerning a “pistol or
revolver,” and there must be “a separate application and
permit for each transaction” involving a pistol or revolver.
Id. With respect to a “rifle or shotgun,” by contrast, the
statute states that such permits generally “shall entitle the
permittee to make subsequent purchases of rifles or shotguns
for a period of one year from the date of issue without a
separate application and permit for each acquisition.” Id.
(emphasis added). Yukutake alleged that, on one occasion
in early 2019, he was unable to acquire a permitted handgun
within the 10-day window, and he therefore had to start all
over again with a new application.
The second challenge asserted by Plaintiffs involves one
aspect of the post-acquisition firearm “registration” process
set forth in § 134-3. Section 134-3(b) provides that “[e]very
person who acquires a firearm pursuant to section 134-2
shall register the firearm in the manner prescribed by this
section within five days of acquisition.” HAW. REV. STAT.
§ 134-3(b). The registrant must complete a standard form
that includes, inter alia, the “name of the manufacturer and
importer; model; type of action; caliber or gauge; serial
number; and source from which receipt was obtained,
including the name and address of the prior registrant.” Id.
Plaintiffs’ complaint did not challenge either the underlying
requirement to register a firearm or the obligation to provide
this specific information in connection with such
registration. Rather, they challenged only § 134-3’s
requirement that, as part of the registration process, an
3
As we shall explain, this provision was subsequently amended by
replacing “ten days” with “thirty days.”
10 YUKUTAKE V. LOPEZ

individual firearms purchaser had to bring the gun to the

local police station for a physical inspection. Specifically,
Plaintiffs challenged § 134-3(c) to the extent that, at the time
of the district court’s ruling in this case, that subsection
provided that, except for firearms registered by authorized
dealers, all firearms “registered under this section shall be
physically inspected by the respective county chief of police
or the chief’s representative at the time of registration.” Id.
§ 134-3(c) (version effective Sept. 15, 2020).4 According to
the complaint, this “requirement that Plaintiffs bring their
firearm[s] to the police station to register them violates
Plaintiffs’ Second Amendment rights.”
The parties filed cross-motions for summary judgment,
and on August 16, 2021, the district court granted summary
judgment to Plaintiffs. See Yukutake, 554 F. Supp. 3d at
1090. Applying the “intermediate scrutiny” then applicable
under Ninth Circuit law, the district court facially
invalidated both challenged provisions. Specifically, the
court first concluded that Hawaii had “failed to show that
there is a reasonable fit between [its] stated objective of
promoting public safety and the 10-day permit use period
imposed” by § 134-2(e). Id. at 1086. The district court also
held that “§ 134-3(c)’s in-person inspection and registration
requirement does not survive intermediate scrutiny.” Id. at
1090. The court entered a permanent injunction prohibiting
enforcement of both “§ 134-2(e)’s 10-day permit use
requirement for handguns” and “§ 134-3(c)’s in-person
firearm inspection and registration requirement.” Id. at
1090–91.

4
As noted below, this provision was also amended after the district court
ruled in this case.
 YUKUTAKE V. LOPEZ 11

In a subsequent September 23, 2021 order, the district

court clarified that it had not invalidated § 134-2 or § 134-3
in toto and that, instead, the “10-day permit use period, and
the requirement of in-person inspection and registration, are
severed from their respective statutes and stricken.” In the
same order, the district court also partially granted the
State’s motion for a stay pending appeal, holding that the
injunction against “the 10-day permit use period in HRS
§ 134-2(e)” would be stayed but that the injunction against
“the in-person inspection and registration requirement in
HRS § 134-3(c)” would not. The district court entered final
judgment the same day, and Hawaii timely appealed.
Shortly after the completion of briefing in this court, the
Supreme Court issued its decision in New York State Rifle &
Pistol Ass’n, v. Bruen, 597 U.S. 1 (2022), which rejected the
then-existing framework in the circuit courts (including this
court) for evaluating Second Amendment claims. Id. at 17–
24. A motions panel of this court denied the State’s motion
to vacate and remand for reconsideration in light of Bruen
and instead granted the State’s alternative request for
supplemental briefing.
II
We first address the State’s contention that recent
legislative developments have mooted this case. See Ahlman
v. Barnes, 20 F.4th 489, 493 (9th Cir. 2021) (stating that
mootness raises a jurisdictional issue that must be addressed
before the merits).
Not long after oral argument in this court, the Hawaii
Legislature passed a bill that would amend both of the
provisions challenged by Plaintiffs here. While that bill was
awaiting the Governor’s anticipated signature, the State
moved to dismiss this appeal as moot in light of this
12 YUKUTAKE V. LOPEZ

legislative development and to vacate the district court’s

judgment. Plaintiffs have opposed the State’s motion,
arguing that, even if the bill is approved by the Governor, the
case is not moot. The bill was subsequently signed by the
Governor on June 2, 2023, and it contains two relevant
amendments that have now both taken effect.
First, with respect to § 134-2(e)’s specification that
permits to purchase handguns are only valid for 10 days, § 4
of Act 52 amends that provision by simply replacing “ten
days” with “thirty days.” See Act 52, § 4, 2023 Haw. Sess.
Laws 113, 121. Section 18(1) of Act 52 provides that this
amendment changing the validity of purchasing permits
from 10 days to 30 days would take effect on January 1,
2024. Id. at 136. Although Act 52 makes a number of other
changes to § 134-2(e), the State does not contend that any of
them are relevant to assessing whether Plaintiffs’ challenge
to that statute is moot.
Second, with respect to § 134-3’s in-person inspection
and registration requirement, Act 52 makes permanent a set
of temporary changes that the Hawaii Legislature had
adopted shortly after the district court refused to stay its
injunction with respect to § 134-3. Specifically, § 2 of Act
30 of the 2022 Hawaii Session Laws struck the provision of
§ 134-3(c) that imposed the in-person inspection
requirement and instead added new language to § 134-3(b)
that imposed a more limited in-person inspection and
registration requirement. This more limited requirement
mandates physical inspection “at the time of registration”
only (1) if “the firearm is acquired from a person who is not
a dealer licensed” by either the State of Hawaii or the Federal
Government; (2) if the firearm has an “engraved or
embedded registration number[]” that was added, as
required, when a gun is “assembled from parts created using
 YUKUTAKE V. LOPEZ 13

a three-dimensional printer”; or (3) if the firearm is brought

into Hawaii from outside the State. See Act 30, § 2, 2022
Haw. Sess. Laws 50, 52–54. Because these amendments to
§ 134-3 were intended as a temporary measure while the
State pursued this appeal, § 5 of Act 30 provided that these
amendments would automatically be repealed on June 30,
2025, at which time the prior version that had been partially
invalidated by the district court would be restored. Id. at 54.
In 2023, § 13 of Act 52 amended § 5 of Act 30 by
eliminating the 2025 sunset provision and instead making
the amendments to § 134-3 permanent. See Act 52, § 13,
2023 Haw. Sess. Laws at 136. The elimination of that sunset
provision took effect on July 1, 2023. Id.
We have held that “the repeal, amendment, or expiration
of legislation” will be presumed to “render an action
challenging the legislation moot, unless there is a reasonable
expectation that the legislative body will reenact the
challenged provision or one similar to it.” Board of Trs. of
Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195,
1199 (9th Cir. 2019) (en banc). Where, as here, the
challenged provisions have been amended rather than
repealed, the question whether the Legislature may
reasonably be expected to enact a “similar” law turns, in the
first instance, on whether the amended law that the
Legislature did enact is sufficiently similar to the original
law with respect to the alleged constitutional deficiency at
issue. See Teter v. Lopez, 125 F.4th 1301, 1307 (9th Cir.
2025) (en banc).
With respect to the Legislature’s changing of the validity
of firearm-purchasing permits from 10 days to 30 days, the
issue of mootness is ultimately intertwined with the merits
of Plaintiffs’ Second Amendment challenge. As we shall
explain, we conclude that Hawaii’s short timeframe for
14 YUKUTAKE V. LOPEZ

completing firearms purchases violates the Second

Amendment, and our reasons for reaching that conclusion
fully apply both to the new 30-day period as well as the prior
10-day period. See infra Section IV. Because Hawaii thus
has adopted a substantially “similar” provision to the
challenged one, there is more than a “reasonable
expectation” that the Legislature “will reenact” a “similar”
law; it has already done so. Chambers, 941 F.3d at 1199.
Any presumption that Plaintiffs’ challenge to § 134-2(e) is
moot under Chambers has therefore been rebutted. See
Teter, 125 F.4th at 1307.
As to Plaintiffs’ challenge to § 134-3, the relevant
amendment made permanent by Act 52 is that the in-person
inspection requirement is no longer included in the
registration process if the firearm is purchased from a
licensed dealer. At oral argument, the State at one point
argued that the pre-2022 law already exempted firearms that
are purchased from licensed dealers from the in-person
inspection requirement. If true, that would mean that § 134-
3 had not actually been amended in a relevant respect—
which, of course, would mean that Plaintiffs’ challenge to
§ 134-3 was not mooted by the enactment of that immaterial
change in wording. But the district court did not read the
pre-2022 law that way, and neither do we. Prior to 2022,
§ 134-3 stated that licensed dealers who were “register[ing]
firearms pursuant to this section” were not “required to have
the firearms physically inspected by the chief of police at the
time of registration.” HAW. REV. STAT. § 134-3(c) (2021).
On its face, that exemption appears directed to firearms
acquired by the dealer, rather than firearms acquired by
individuals from the dealer, and that is how the district court
seems to have read the provision. See Yukutake, 554
F. Supp. 3d at 1078 n.1. By contrast, the amended version
 YUKUTAKE V. LOPEZ 15

of § 134-3 very clearly exempts from the in-person

inspection requirement any firearm “acquired from” a dealer.
HAW. REV. STAT. § 134-3(b) (emphasis added); see id.
(stating that in-person inspection is required “[i]f the firearm
is acquired from a person who is not a dealer” (emphasis
added)). We therefore construe the amendment to have
eliminated § 134-3’s previous requirement that firearms
purchased from licensed dealers must be physically
inspected within five days, while leaving the inspection
requirement in place as to acquisitions that were not made
through licensed dealers.
Nonetheless, even with that change, the amended § 134-
3 remains sufficiently similar, in the relevant respects, to the
pre-2022 version. That point is confirmed by the fact that
the district court’s particular reasons for invalidating the in-
person inspection requirement under the Second
Amendment did not turn, in any relevant respect, on whether
the firearm had been purchased from a licensed dealer.
Rather, the district court concluded that the in-person
inspection requirement did not “fall within the historical
tradition” of firearms regulation in this country and that the
State had presented no evidence that the requirement served
any of the particular interests asserted by the State as
justification. See Yukutake, 554 F. Supp. 3d at 1088–90.
Because the district court’s reasons for invalidating the in-
person inspection requirement have not been vitiated by the
recent amendments, the parties’ dispute over the correctness
of the district court’s conclusions are not moot. Put another
way, the amended version of § 134-3 is sufficiently similar
to the previous version that any presumption of mootness has
been rebutted.
Accordingly, we deny the State’s motion to dismiss this
appeal as moot.
16 YUKUTAKE V. LOPEZ

III
In District of Columbia v. Heller, 554 U.S. 570 (2008),
the Supreme Court held that the Second Amendment
protects an “individual right to keep and bear arms” “for
defensive purposes,” even if “unconnected to militia
service.” Id. at 598, 601–02. The Court subsequently held
that this individual right is applicable against the States
under the Fourteenth Amendment. See McDonald v. City of
Chicago, 561 U.S. 742, 767–80 (2010). In a pair of recent
decisions, the Court has set forth the governing legal
framework for evaluating challenges to laws on the ground
that they infringe the Second Amendment’s individual right
to keep and bear arms. See New York State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Rahimi,
602 U.S. 680 (2024). We therefore begin by summarizing
the applicable standards established in those decisions.
A
In Bruen, the Court squarely rejected the general
framework for evaluating Second Amendment challenges
that had developed in the lower courts after Heller and
McDonald. As the Court explained, “the Courts of Appeals
ha[d] coalesced around a ‘two-step’ framework for
analyzing Second Amendment challenges that combine[d]
history with means-end scrutiny.” Bruen, 597 U.S. at 17.
Under the “first step” of that approach, the government could
justify a particular law by showing that it “regulate[d]
activity falling outside the scope of the right as originally
understood.” Id. at 18 (citation omitted). “At the second
step,” a court would apply different levels of means-ends
scrutiny depending on “how close the law comes to the core
of the Second Amendment right and the severity of the law’s
burden on that right.” Id. (citation omitted). The Court
 YUKUTAKE V. LOPEZ 17

rejected that framework, holding that “it is one step too

many.” Id. at 19. Only the first step, the Court explained,
was “consistent with Heller, which demands a test rooted in
the Second Amendment’s text, as informed by history.” Id.
By contrast, the Court held that the second step was
unwarranted, because “Heller and McDonald do not support
applying means-end scrutiny in the Second Amendment
context.” Id.
Having rejected “means-end scrutiny” as the applicable
test for Second Amendment claims, the Court then held:

[T]he standard for applying the Second

Amendment is as follows: When the Second
Amendment’s plain text covers an
individual’s conduct, the Constitution
presumptively protects that conduct. The
government must then justify its regulation
by demonstrating that it is consistent with the
Nation’s historical tradition of firearm
regulation. Only then may a court conclude
that the individual’s conduct falls outside the
Second Amendment’s “unqualified
command.”

597 U.S. at 24 (citation omitted). The Bruen Court

explained that “[t]his Second Amendment standard accords
with how [the Court] protect[s] other constitutional rights,”
including “the freedom of speech in the First Amendment,
to which Heller repeatedly compared the right to keep and
bear arms.” Bruen, 597 U.S. at 24 (citing Heller, 554 U.S.
at 582). “In that context,” the Court explained, the
government likewise “bears the burden of proving the
constitutionality of its actions,” which, in some cases,
18 YUKUTAKE V. LOPEZ

“includes showing whether the expressive conduct falls

outside of the category of protected speech.” Id. (citation
omitted). “[T]o carry that burden, the government must
generally point to historical evidence about the reach of the
First Amendment’s protections,” such as by “show[ing] that
a type of speech belongs to a historic and traditional category
of constitutionally unprotected speech long familiar to the
bar.” Id. at 24–25 (simplified).
The Bruen Court then provided the following guidance
as to how the courts should “assess whether modern firearms
regulations are consistent with the Second Amendment’s
text and historical understanding”:

In some cases, that inquiry will be fairly

straightforward. For instance, when a
challenged regulation addresses a general
societal problem that has persisted since the
18th century, the lack of a distinctly similar
historical regulation addressing that problem
is relevant evidence that the challenged
regulation is inconsistent with the Second
Amendment. Likewise, if earlier generations
addressed the societal problem, but did so
through materially different means, that also
could be evidence that a modern regulation is
unconstitutional. And if some jurisdictions
actually attempted to enact analogous
regulations during this timeframe, but those
proposals were rejected on constitutional
grounds, that rejection surely would provide
 YUKUTAKE V. LOPEZ 19

some probative evidence of

unconstitutionality.

597 U.S. at 26–27. Heller itself, the Court noted, had been
a “straightforward” case of this kind. Id. at 27. “The District
in Heller addressed a perceived societal problem—firearm
violence in densely populated communities—and it
employed a regulation—a flat ban on the possession of
handguns in the home—that the Founders themselves could
have adopted to confront that problem.” Id. (emphasis
added). Heller’s conclusion that no founding-era firearms
regulations were “analogous to the District’s ban” therefore
straightforwardly doomed the ban. Id. A similarly
straightforward analysis applied in Bruen, in which the
challenged New York law provided that, to obtain a license
to carry a firearm outside the home, one must demonstrate
“proper cause,” which had been construed to require proof
of “a special need for self-protection distinguishable from
that of the general community.” Id. at 12. As the Court
explained, “New York’s proper-cause requirement concerns
the same alleged societal problem addressed in Heller:
handgun violence, primarily in urban areas.” Id. at 27
(simplified). “Following the course charted by Heller, [the
Court] consider[ed] whether ‘historical precedent’ from
before, during, and even after the founding evinces a
comparable tradition of regulation” as the New York law,
and it found “no such tradition in the historical materials that
[the State defendants] and their amici have brought to bear
on that question.” Id. (quoting Heller, 554 U.S. at 631).
But not all historical inquiries, the Bruen Court
emphasized, would be as simple as those in Heller and Bruen
itself. In some cases—e.g., due to technological
developments or other unprecedented concerns—the
20 YUKUTAKE V. LOPEZ

Founders simply could not have adopted, or perhaps even

imagined, the modern firearms regulation in question. In
such cases, the Bruen Court explained, the historical inquiry
may become more complicated:

While the historical analogies here and in

Heller are relatively simple to draw, other
cases implicating unprecedented societal
concerns or dramatic technological changes
may require a more nuanced approach. The
regulatory challenges posed by firearms
today are not always the same as those that
preoccupied the Founders in 1791 or the
Reconstruction generation in 1868.
Fortunately, the Founders created a
Constitution—and a Second Amendment—
“intended to endure for ages to come, and
consequently, to be adapted to the various
crises of human affairs.” McCulloch v.
Maryland, 4 Wheat. [17 U.S.] 316, 415
(1819) (emphasis deleted). Although its
meaning is fixed according to the
understandings of those who ratified it, the
Constitution can, and must, apply to
circumstances beyond those the Founders
specifically anticipated.

597 U.S. at 27–28. The Court emphasized, however, that

“history” continues to “guide [the courts’] consideration of
modern regulations that were unimaginable at the founding.”
Id. at 28.
The Court also further explained how the courts should
approach “determining whether a historical regulation is a
 YUKUTAKE V. LOPEZ 21

proper analogue for a distinctly modern firearm regulation.”

597 U.S. at 28–29. That inquiry “requires a determination
of whether the two regulations are ‘relevantly similar,’”
which entails considering “at least two metrics: how and
why the regulations burden a law-abiding citizen’s right to
armed self-defense.” Id. at 29. Because “individual self-
defense is ‘the central component’ of the Second
Amendment right,” two “‘central’ considerations when
engaging in an analogical inquiry” are “[1] whether modern
and historical regulations impose a comparable burden on
the right of armed self-defense and [2] whether that burden
is comparably justified.” Id. (citations omitted). The Court
underscored, however, that “analogical reasoning requires
only that the government identify a well-established and
representative historical analogue, not a historical twin.” Id.
at 30.
In applying these standards to the challenged New York
statute in Bruen, the Court exhaustively analyzed the
historical analogues proffered by the parties and concluded
that (1) “[a]part from a few late-19th-century outlier
jurisdictions, American governments simply have not
broadly prohibited the public carry of commonly used
firearms for personal defense”; and (2) apart from “a few
late-in-time outliers, . . . American governments” have not
“required law-abiding, responsible citizens to ‘demonstrate
a special need for self-protection distinguishable from that
of the general community’ in order to carry arms in public.”
597 U.S. at 70 (citation omitted); see also id. at 38 (providing
a similar summary at the start of the Court’s historical
analysis).
In summarizing its holding, the Bruen Court included a
footnote that distinguished New York’s “special-need”
discretionary licensing regime from the “‘shall-issue’
22 YUKUTAKE V. LOPEZ

licensing regimes” that prevailed in 43 other States. 597

U.S. at 38 n.9. That footnote states, in full:

To be clear, 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].” Drake v. Filko, 724 F.3d 426, 442
(CA3 2013) (Hardiman, J., dissenting).
Because these licensing regimes do not
require applicants to show an atypical need
for armed self-defense, they do not
necessarily prevent “law-abiding,
responsible citizens” from exercising their
Second Amendment right to public carry.
District of Columbia v. Heller, 554 U.S. 570,
635 (2008). Rather, it appears that these
shall-issue regimes, which often require
applicants to undergo a background check or
pass a firearms safety course, are designed to
ensure only that those bearing arms in the
jurisdiction are, in fact, “law-abiding,
responsible citizens.” Ibid. And they
likewise appear to contain only “narrow,
objective, and definite standards” guiding
licensing officials, Shuttlesworth v.
Birmingham, 394 U.S. 147, 151 (1969),
rather than requiring the “appraisal of facts,
the exercise of judgment, and the formation
of an opinion,” Cantwell v. Connecticut, 310
U.S. 296, 305 (1940)—features that typify
proper-cause standards like New York’s.
That said, because any permitting scheme can
 YUKUTAKE V. LOPEZ 23

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.

Id.
In a two-Justice concurrence for himself and Chief
Justice Roberts—who provided two votes that were
necessary to the six-Justice majority in Bruen—Justice
Kavanaugh reiterated the limitations acknowledged by the
Court in footnote 9. “The Court’s decision,” Justice
Kavanaugh explained, “addresses only the unusual
discretionary licensing regimes, known as ‘may-issue’
regimes, that are employed by 6 States including New York”
(and, incidentally, Hawaii). Bruen, 597 U.S. at 79
(Kavanaugh, J., concurring); see also id. at 15 (majority
opinion) (noting that Hawaii was among the five other States
that had “analogues” to the N.Y. law). As to the “43 States”
that “employ objective shall-issue licensing regimes,”
Justice Kavanaugh noted that these differed from the New
York regime in that they merely “require a license applicant
to undergo fingerprinting, a background check, a mental
health records check, and training in firearms handling and
in laws regarding the use of force, among other possible
requirements.” Id. at 80. These regimes, Justice Kavanaugh
explained, “are constitutionally permissible, subject of
course to an as-applied challenge if a shall-issue licensing
regime does not operate in that manner in practice.” Id.
(emphasis added); see also id. at 72 (Alito, J., concurring)
(“Our holding decides nothing about who may lawfully
24 YUKUTAKE V. LOPEZ

possess a firearm or the requirements that must be met to buy

a gun.”).
B
In Rahimi, the Court again addressed how courts should
determine whether a law challenged on Second Amendment
grounds is supported by a sufficient historical analogue. The
criminal defendant in that case brought a facial challenge to
the relevant law under which he was being prosecuted,
namely, 18 U.S.C. § 922(g)(8)(C)(i). See 602 U.S. at 693.
That law made it an offense for an individual to possess a
firearm if he was subject to a restraining order that
“include[d] a finding that he poses ‘a credible threat to the
physical safety’ of a protected person.” Id. (quoting 18
U.S.C. § 922(g)(8)(C)(i)). In holding that this law survived
a facial Second Amendment challenge, the Court held that
the law was sufficiently analogous, within the meaning of
Bruen, to the historical examples of the “surety laws” and
the “‘going armed’ laws.” Id. at 695–98.
As the Court explained, the “surety laws” generally
required “those persons, [of] whom there is a probable
ground to suspect of future misbehaviour, to stipulate with
and to give full assurance . . . that such offence . . . shall not
happen[,] by finding pledges or securities.” Rahimi, 602
U.S. at 695 (quoting 4 W. BLACKSTONE, COMMENTARIES ON
THE LAWS OF ENGLAND 251 (10th ed. 1787) (hereinafter
“BLACKSTONE”)). Such laws, which also “targeted the
misuse of firearms,” allowed “magistrates to require
individuals suspected of future misbehavior to post a bond”
to guarantee their future good behavior. Id. at 695–96.
“These laws often offered the accused significant procedural
protections,” including a formal complaint to a court that the
complainant had “reasonable cause to fear” the accused, an
 YUKUTAKE V. LOPEZ 25

opportunity for the accused to respond, and an evidence-

based judicial determination “that cause existed for the
charge.” Id. at 696–97.
The “going armed laws,” the Court explained, were “a
particular subset of the ancient common-law prohibition on
affrays,” which referred to fighting or “arming oneself to the
Terror of the People.” 602 U.S. at 697 (simplified). As
described by Blackstone, “the going armed laws prohibited
‘riding or going armed, with dangerous or unusual weapons,
[to] terrify[ ] the good people of the land.’” Id. (quoting 4
BLACKSTONE, supra, at 149). Because such conduct was
likely to “disrupt[] the ‘public order’” and lead to violence,
such acts were punished with “forfeiture of the arms . . . and
imprisonment.” Id. (citations omitted).
The Court held that, “[t]aken together, the surety and
going armed laws confirm what common sense suggests:
When an individual poses a clear threat of physical violence
to another, the threatening individual may be disarmed.”
602 U.S. at 698. The Court further concluded that, although
§ 922(g)(8)(C)(i) was “by no means identical to these
founding era regimes,” its “prohibition on the possession of
firearms by those found by a court to present a threat to
others fits neatly within the tradition the surety and going
armed laws represent.” Id. That was true, the Court stated,
because the “provision is ‘relevantly similar’ to those
founding era regimes in both why and how it burdens the
Second Amendment right.” Id. (quoting Bruen, 597 U.S. at
29).
The Court stated that the “why”—i.e., the objectives—
of the various laws were the same, because § 922(g)(8)(C)(i)
“restricts gun use to mitigate demonstrated threats of
physical violence, just as the surety and going armed laws
26 YUKUTAKE V. LOPEZ

do.” Rahimi, 602 U.S. at 698. In evaluating “how”

§ 922(g)(8)(C)(i) “burdens the Second Amendment right,”
the Court held that this challenged provision imposes a
burden that “fits within our regulatory tradition.” Id. Both
this provision and “the surety and going armed laws,” the
Court explained, “involved judicial determinations of
whether a particular defendant likely would threaten or had
threatened another with a weapon.”5 Id. at 699. And unlike
the provision challenged in Bruen, § 922(g)(8)(C)(i) “does
not broadly restrict arms use by the public generally.” Id. at
698. Two other “relevant aspect[s] of the burden” imposed
by § 922(g)(8)(C)(i)—viz., the “duration” of the prohibition
and the “penalty” associated with it—were also “within the
regulatory tradition.” Id. at 699. Like the “surety bonds”
required under the surety laws, the restriction imposed by the
provision was “of limited duration.” Id. Moreover, the
burden imposed by the substantive rule in § 922(g)(8)(C)(i)
was, effectively, “temporary disarmament” while the
provision’s prohibition was in effect, and that burden
involved a “lesser restriction” than the “imprisonment” that
was imposed by the “going armed laws.” Id.

5
The Court, however, made clear that it was not holding that what was
in that context a sufficient ground for falling “within our regulatory
tradition” (i.e., a case-specific judicial determination) was a necessary
one. The Court thus explicitly stated that it did “not suggest that the
Second Amendment prohibits the enactment of laws banning the
possession of guns by categories of persons thought by a legislature to
present a special danger of misuse,” citing the portion of Heller
discussing laws prohibiting the possession of firearms by felons or the
mentally ill. Rahimi, 602 U.S. at 698 (emphasis added) (citing Heller,
554 U.S. at 626). And later in its opinion, the Rahimi Court reiterated
that prohibitions “on the possession of firearms by ‘felons and the
mentally ill,’” even in the home, “are ‘presumptively lawful.’” Id. at 699
(quoting Heller, 554 U.S. at 626, 627 n.26).
 YUKUTAKE V. LOPEZ 27

Because this nation’s “tradition of firearm regulation

allows the Government to disarm individuals who present a
credible threat to the physical safety of others,”
§ 922(g)(8)(C)(i) could “be applied lawfully to Rahimi,” and
his facial challenge therefore necessarily failed. 602 U.S. at
700; see also id. at 693 (reaffirming that, outside the First
Amendment context, a facial challenge generally fails if a
law “is constitutional in some of its applications,” such as its
application “to the facts of Rahimi’s own case”).
IV
In applying Bruen’s standards, as clarified by Rahimi, we
first address Plaintiffs’ challenge to § 134-2(e)’s provision
that a handgun purchasing permit is valid for only a brief
period of time (originally 10 days and now 30 days).
A
The first question, under Bruen, is whether “the plain
text of the Second Amendment protects” the conduct
regulated by the challenged law. 597 U.S. at 32.
Here, the conduct regulated by § 134-2(e) is the
acquisition, through purchase or otherwise, of a “pistol or
revolver.” HAW. REV. STAT. § 134-2(e). In a pre-Bruen
decision, we held that the “Second Amendment right to keep
and bear arms for self-defense ‘wouldn’t mean much’
without the ability to acquire arms,” and that “[t]he right to
keep arms, necessarily involves the right to purchase them,
to keep them in a state of efficiency for use, and to purchase
and provide ammunition suitable for such arms, and to keep
them in repair.” Teixeira v. County of Alameda, 873 F.3d
670, 677–78 (9th Cir. 2017) (en banc) (emphasis added)
(citations omitted); see also id. at 678 (“The right to keep
and bear arms for self-defense under the Second Amendment
28 YUKUTAKE V. LOPEZ

must also include the right to acquire a firearm, although that

acquisition right is far from absolute.” (first emphasis added)
(simplified)). Without expressing any view as to whether
any other aspects of our opinion in Teixeira have been
abrogated by Bruen, we conclude that nothing in Bruen calls
into question our specific holding in Teixeira that the text of
the Second Amendment must be understood as protecting
the right of individuals to purchase and acquire firearms.
Bruen reaffirmed that the Second Amendment right to
“keep” arms “guarantee[d] the individual right to possess”
arms, Bruen, 597 U.S. at 20 (emphasis added) (quoting
Heller, 554 U.S. at 592), and one cannot ordinarily “possess”
an item—particularly something as complex as a firearm—
if he or she cannot acquire it. Put simply, the right to
“possess” a firearm—which Bruen recognized is protected
by the plain text of the Second Amendment—includes
within it the right to take possession of a firearm, i.e., to
acquire one. We therefore reaffirm our prior holding in
Teixeira that the purchase and acquisition of firearms is
conduct that is protected by the plain text of the Second
Amendment. See Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc).
In this regard, it is important to note that the challenged
restriction imposed by § 134-2(e) is part of the permitting
process that generally governs any acquisition of a handgun.
HAW. REV. STAT. § 134-2(a). In addressing the threshold
scope of the Second Amendment, we have distinguished
between laws that govern acquisition simpliciter and laws
that merely restrict one particular means of acquiring a
firearm. Thus, for example, we held in B&L Productions,
Inc. v. Newsom, 104 F.4th 108 (9th Cir. 2024), that the “plain
text of the Second Amendment does not cover” the specific
conduct of “contracting for the sale of firearms and
 YUKUTAKE V. LOPEZ 29

ammunition on state property.” Id. at 117 (emphasis added).

In a footnote, we carefully distinguished that situation from
one in which the object of the statute was “the general
‘purchase of firearms.’” Id. at 117 n.17.6 We thus
acknowledged that Teixeira established that such a general
regulation of firearms purchasing would restrict conduct
covered by the plain text of the Second Amendment, but we
also noted that Teixeira recognized, in contrast, that the same
could not be said of a claimed “right to have a gun store in a
particular location.” Id. at 118 (emphasis added). Such
narrowly focused “commercial restrictions” on particular
means of acquisition, we explained, implicate the Second
Amendment right to “keep and bear arms” only if the
particular “challenged regulation meaningfully impairs an
individual’s ability to access firearms.” Id. at 119 (emphasis
added). B&L thus recognized that particular discrete
commercial restrictions do not stand on the same footing as
an across-the-board regulation of the acquisition of
handguns. Id. Here, Hawaii’s challenged restriction applies
generally to all acquisition of handguns, and it therefore
clearly implicates the plain text of the Second Amendment
under Teixeira.7

6
The dissent simply ignores this explicit limitation on the scope of the
issues considered in B&L and thereby misreads that decision as if it
addressed the very issue that it expressly stated that it did not address.
See Dissent at 76 n.6. And if the dissent believes that the distinction
drawn by B&L involves a “manipulation of the ‘level of generality’ at
which the right is defined,” see id., its complaint is with B&L itself.
7
In any event, the broad applicability of the challenged time limit at issue
here and the strict nature of that limit are more than enough to confirm
that it “meaningfully constrains” the right to acquire a firearm. B&L, 104
F.4th at 119 (emphasis added); see also Teixeira, 873 F.3d at 680 n.14
(holding that an ordinance banning only particular types of commercial
30 YUKUTAKE V. LOPEZ

The dissent misreads Bruen and our precedent as instead

narrowly holding that only the “two discrete, specific
actions” of (1) “retain[ing]” possession of firearms and
(2) “carry[ing]” them in public are protected by the text of
the Second Amendment; the acquisition of a firearm,
according to the dissent, is not “conduct protected by the
Second Amendment’s plain text.” See Dissent at 66, 68
(emphasis added). This peculiar view of the Second
Amendment—as protecting the right to retain guns that you
have no right to acquire—is not a fair reading of its text. No
reasonable person at the time of the Second Amendment’s
adoption would have thought that its text only protects the
right to maintain the firearms that citizens then happened to
possess at the moment of the Amendment’s adoption, nor
would anyone have reasonably thought that the
Amendment’s text protects only the possession of those guns
that thereafter either suddenly and miraculously appear in
one’s home or that the state allows you to acquire. As we
have explained above, see supra at 27–28, the right to “keep”
firearms “guarantee[s] the individual right to possess” a
firearm, Bruen, 597 U.S. at 20 (emphasis added) (citation
omitted), which includes within it the right to take possession
of a firearm. The right to acquire a firearm is thus not
separate from, and outside of, the right to possess it; on the
contrary, as we recognized in Teixeira, the right to “keep”
firearms “must also include the right to acquire a firearm.”
Teixeira, 873 F.3d at 678 (first emphasis added) (citation
omitted). The dissent’s contrary view—that “[t]he plain text
of the Second Amendment does not wholly protect the
purchase or the acquisition of firearms,” see Dissent at 66
(emphasis added)—makes no more sense than saying that

arms transactions “‘meaningfully’ burdens” Second Amendment rights

if it “actually or really burdens” those rights).
 YUKUTAKE V. LOPEZ 31

the First Amendment’s text does not protect the right to

acquire copies of books, audio files, or movies.
The dissent insists that its approach would not, in
practice, deny all constitutional protection against
restrictions on acquisition, because the dissent would still
allow a Second Amendment challenge to a particular
acquisition regulation if the plaintiff could show that the
regulation “prevent[s]” or “effectively . . . denies the rights
to possess and carry.” See Dissent at 67, 70 n.2 (emphasis
added) (simplified). But this view would still allow all
manner of harassing limitations on the acquisition of
firearms, without any constitutional scrutiny whatsoever, so
long as those limitations fall short of ultimately preventing a
citizen from possessing firearms for self-defense. Again,
that makes no sense. We would not decline to apply any
First Amendment scrutiny to laws imposing special temporal
or procedural restrictions on purchases of available copies of
expressive works, merely on the ground that the plaintiff was
ultimately able to obtain access to the work. Cf. United
States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 812 (2000)
(“It is of no moment that the challenged statute does not
impose a complete prohibition,” for both “laws burdening
and laws banning speech . . . must satisfy the same rigorous
scrutiny.”). Under the dissent’s extremely narrow reading,
however, the Second Amendment right would wrongly be
reduced to “a second-class right, subject to an entirely
different body of rules than the other Bill of Rights
guarantees.” Bruen, 597 U.S. at 70 (citation omitted).
More broadly, the dissent errs by effectively resurrecting
the very framework that Bruen rejected, in which the pre-
Bruen lower courts held that restrictions on the “core” of the
Second Amendment right are subject to one type of analysis,
while restrictions on “ancillary,” non-core Second
32 YUKUTAKE V. LOPEZ

Amendment rights are subject to a very different analysis.

See Dissent at 75; cf. Bruen, 597 U.S. at 18–19
(summarizing, and then explicitly rejecting, this “core”/non-
core two-tier approach). Indeed, the dissent adopts an even
narrower view of the Second Amendment right than our pre-
Bruen caselaw, because it would place what it calls
“ancillary” rights categorically outside the text of that
amendment, and it would then subject restrictions imposing
what it deems to be incidental prohibitions on “core” rights
to an even more permissive review than our pre-Bruen
caselaw. Thus, while we subjected regulations of “ancillary”
Second Amendment rights to intermediate scrutiny before
Bruen—which at least “on paper” was a meaningful
standard, see Concurrence at 57—the dissent would not
undertake any Second Amendment scrutiny unless and until
a plaintiff makes a demanding threshold showing that a
challenged regulation burdening an “ancillary” right
“effectively . . . denies ordinary citizens their rights to keep
and carry.” See Dissent at 67 (emphasis added) (simplified).
That too-demanding standard ignores the Second
Amendment’s text, which protects not only against laws that
“prevent” or “deny” the exercise of Second Amendment
rights, but also against laws that “infringe[]” those rights.
See Infringe, 1 SAMUEL JOHNSON, DICTIONARY OF THE
ENGLISH LANGUAGE (4th ed., rev. 1773) (defining “infringe”
to mean “violate”; “destroy” or “hinder” (emphasis added)).8

8
The dissent purports to limit its damage to the Second Amendment by
suggesting that only those restrictions on acquisition that are “facially
neutral” can be said to “not regulate conduct covered by the plain text of
the Second Amendment.” See Dissent at 78 (emphasis added); see also
id. at 65-67, 93. But it is unclear what that limitation even means in this
context, much less where it comes from. The challenged provisions here
 YUKUTAKE V. LOPEZ 33

Because § 134-2(e) regulates conduct—the acquisition

of a firearm by an individual, through purchase or
otherwise—that is covered by the plain text of the Second
Amendment, the Second Amendment “presumptively
protects that conduct.” Bruen, 597 U.S. at 24. The burden
therefore falls on the State to “justify its regulation by
demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Id.
B
1
We next consider whether the State has carried its burden
to justify the challenged aspect of § 134-2(e)’s regulation of
the acquisition of pistols and revolvers. As noted earlier,
Plaintiffs’ suit in the district court did not challenge the
underlying requirement in § 134-2(a) that, before acquiring
a firearm in Hawaii, a person must first obtain a permit to do
so. See supra at 8. Rather, Plaintiffs only challenged the
narrow time limitation for actually obtaining a “pistol or
revolver” after the issuance of the permit, which was
originally 10 days and is now 30 days. In arguing that this
particular detail of its permitting system is justified under
Bruen, the State’s argument proceeds in two steps. First, the

are certainly not “facially neutral” in the sense that they apply neutrally
to all commercial transactions, cf. Reed v. Town of Gilbert, 576 U.S. 155,
166 (2015) (stating that a regulation is facially neutral for purposes of
the First Amendment if “the statute ‘on its face deals with conduct having
no connection with speech’” (citation omitted)); on the contrary, they
apply only to the acquisition of firearms—the very object of the Second
Amendment’s protection. Tellingly, the dissent cites no caselaw to
support this arbitrary and unintelligible limitation on its crabbed reading
of the Second Amendment. Cf. Dissent at 84 n.10 (noting that judges
should not “rely on ‘the philosophical or policy dispositions of the
individual judge’” (citation omitted)).
34 YUKUTAKE V. LOPEZ

State argues that a permitting system, as a general matter, is

adequately justified by relevant historical analogues under
Bruen. Second, the State argues that Bruen does not require
that each and every particular operational detail of a
permissible historically-validated system—such as the 10-
or 30-day time limit contained in the permitting system at
issue here—also be separately historically validated. The
State also argues that § 134-2(e)’s time limit on the validity
of permits is “valid under the approach taken in footnote 9
of Bruen.”
In evaluating the State’s arguments on this score, we
begin with footnote 9 of Bruen, which is the Supreme
Court’s latest pronouncement on permitting regimes
associated with background checks. We do so because, as
we noted earlier, the firearm-acquisition permitting regime
set forth in § 134-2 requires the relevant police department,
after receiving a permit application, to conduct a background
check within a specified period of time in order to determine
whether the applicant is prohibited under Hawaii law from
possessing firearms. See HAW. REV. STAT. § 134-2(e)
(requiring various specified background checks); id. § 134-
2(j) (setting forth certain notification procedures if a permit
application is denied because the applicant is prohibited
from acquiring a firearm). Footnote 9’s discussion of
background checks in connection with permits to carry is
thus instructive, as a starting point, in analyzing § 134-2’s
system for conducting background checks in connection
with permits to acquire firearms.
In footnote 9, the Bruen Court stated that its invalidation
of New York’s heightened “proper cause” standard for
obtaining a permit to carry a firearm did not call into
question the constitutionality of “‘shall-issue’ licensing
regimes, under which a general desire for self-defense is
 YUKUTAKE V. LOPEZ 35

sufficient to obtain a permit.” Bruen, 597 U.S. at 38 n.9

(simplified). In reaching that conclusion, the Court
emphasized two key differences between such “shall-issue
regimes” and the New York law. First, in contrast to the
New York regime, which “require[d] applicants to show an
atypical need for armed self-defense,” these “shall-issue
regimes, which often require applicants to undergo a
background check or pass a firearms safety course, are
designed to ensure only that those bearing arms in the
jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”
Id. (quoting Heller, 554 U.S. at 635). Second, in the case of
the shall-issue regimes, the grant or denial of an application
turned on “‘narrow, objective, and definite standards’
guiding licensing officials,” id. (quoting Shuttlesworth, 394
U.S. at 151), rather than on “the ‘appraisal of facts, the
exercise of judgment, and the formation of an opinion,’” id.
(quoting Cantwell, 310 U.S. at 305). The Court cautioned,
however, that, “because any permitting scheme can be put
toward abusive ends,” the Court did “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.” Id.
2
Although the Bruen Court did not explicitly set forth
why it concluded that the constitutional validity of such
“‘shall-issue’ licensing regimes” was consistent with
Bruen’s “analysis” of the Second Amendment, 597 U.S. at
38 n.9 (citation omitted), we think that the Court’s reasoning
is discernible from the points made in the footnote.
In particular, we think it noteworthy that the Court
anchored the validity of such regimes in background checks’
36 YUKUTAKE V. LOPEZ

role in “ensur[ing] only that those bearing arms in the

jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”
Id. (quoting Heller, 554 U.S. at 635). Although neither
Heller nor Bruen purported to provide a comprehensive
description of those persons who properly would not be
considered to be “law-abiding, responsible citizens,” see
Rahimi, 602 U.S. at 701–02, there can be little doubt that
footnote 9 was at least referring to the general categories of
persons that, according to Heller, it was “presumptively
lawful” to exclude from possessing firearms—namely,
“felons and the mentally ill,” Heller, 554 U.S. at 626, 627
n.26. Heller expressly did not decide the precise extent to
which, under a historically based analysis, felons and the
mentally ill can be barred from possessing firearms, but
Heller clearly stated that there is sufficient historical
justification for concluding that there is some category of
such persons who may be denied access to firearms. Thus,
in response to the dissent’s criticism that Heller had not
provided any “colonial analogues” that would validate the
Court’s suggestion that laws prohibiting firearms possession
by felons and the mentally ill are presumptively
constitutional, see id. at 721 (Breyer, J., dissenting), the
Heller Court stated that it had no need to “provid[e]
extensive historical justification for those regulations of the
[Second Amendment] right that [the Court] describe[d] as
permissible,” because there would be “time enough to
expound upon the historical justifications for the exceptions
we have mentioned if and when those exceptions come
before us,” id. at 635. Heller, and the Bruen Court’s footnote
9, thus both presume that there is a historically based
category of felons and the mentally ill who may
constitutionally be denied access to firearms.
 YUKUTAKE V. LOPEZ 37

Viewed in this context, Bruen’s footnote 9 must be

understood as grounding the presumptive constitutional
validity of background checks in the historically based
“exception[]” allowing the government to forbid “felons and
the mentally ill” from possessing firearms. Heller, 554 U.S.
at 626, 635. In that sense, the use of background checks in
such shall-issue permitting regimes promotes a historically
based “permissible reason” for regulating firearms
acquisition, Rahimi, 602 U.S. at 692, and thereby satisfies
the “why” aspect of the Bruen test. See Bruen, 597 U.S. at
29.
We hasten to add that, like the Court in Heller and Bruen,
we have no occasion to explore the precise boundaries of any
such historically based exception concerning felons and the
mentally ill. That is because Plaintiffs here do not challenge
any of the particular disqualifying grounds set forth in
Hawaii law, including Hawaii’s prohibition on firearms
possession by felons and the mentally ill. See HAW. REV.
STAT. § 134-7. Rather, what is at issue here is a facial
challenge to one logistical detail of Hawaii’s permitting
system, which (among other things) uses background checks
to screen for those who are disqualified from possessing
firearms. But given that Heller and Bruen indicate that there
is a historically based category of persons who may be
excluded from firearms ownership, and given the limited
nature of Plaintiffs’ challenge, we may proceed on the
assumption that at least a subset of the persons that Hawaii
excludes from firearms ownership fall within that
historically based category. In the context of this facial
challenge, the result is that Hawaii’s permitting system, like
the shall-issue regimes discussed in Bruen footnote 9, helps
to effectuate Hawaii’s invocation of that historically
38 YUKUTAKE V. LOPEZ

grounded exclusion and it likewise satisfies the “why” prong

of Bruen’s historically based test.
3
The remaining question, then, is whether § 134-2(e)
satisfies the “how” prong of Bruen’s test. In explaining how
§ 134-2(e)’s temporal limit on firearm-acquisition permits
furthers the permissible objective of screening out properly
disqualified persons, the State asserts that, absent a time
limit, the permittee may “have become ineligible due to
recent events” occurring after the issuance of the permit but
before the actual acquisition of the firearm. This temporal
aspect of Hawaii’s permitting regime, like the overall regime
itself, is thus ultimately grounded in the use of background
checks to screen out disqualified persons. In approaching
the issue of “historical analogies” for such screening-regime
features in connection with Bruen’s “how” question, one
cannot avoid noting that the entire concept of background
checks rests on “dramatic technological changes”—namely,
fingerprinting and rapidly searchable databases for checking
criminal records—that have no counterpart in the founding
era or even the post-Civil War era.9 Bruen, 597 U.S. at 27.

9
“[T]he first systematic use of fingerprinting for criminal record
purposes in the United States” occurred in 1903 in New York. See THE
FINGERPRINT SOURCEBOOK 1-16 (U.S. Department of Justice, Office of
Justice Programs). While law enforcement officials in the British
Empire evidently began to attempt to “identify recidivist criminals” via
their fingerprints as early as the 1870s, “[t]he obvious drawback to this
system in the pre-computer age was the prohibitively labor-intensive
nature of comparing each new print set with numerous previous sets to
try and find a match.” Dorothy E. Schmidt, A Dark and Stormy Night:
The Mystery of the Missing Science in Fingerprint Identification, 75
DEF. COUNS. J. 47, 48 (2008).
 YUKUTAKE V. LOPEZ 39

Consequently, a “more nuanced approach” to the issue of

“historical analogies” will be required in this area. Id.
Unfortunately, neither the Bruen Court in footnote 9, nor
Justice Kavanaugh in his Bruen concurrence, set forth their
precise reasoning for implicitly concluding that modern
background-check systems satisfy the “how” prong of
Bruen’s historically based test. Perhaps the Bruen Court
relied on the view that regulating firearms acquisition at the
point of acquisition is a regulatory means that falls within
Heller’s suggestion that a historically based approach would
allow the government, for proper purposes, to impose
appropriate “conditions and qualifications on the
commercial sale of arms.” Heller, 554 U.S. at 627.10 But
whatever Bruen’s unstated reasoning was, the Court’s dicta
in footnote 9 must be understood as having effectively
concluded that attaching modern-day background checks to
10
This is certainly a much more plausible historically based analogy for
justifying background checks than Hawaii’s strained analogies to
colonial era laws allowing disarmed persons, such as British Loyalists or
felons, to have their rights, including their right to possess firearms,
restored by, respectively, a loyalty oath or a pardon. A system of
individualized applications that governs only persons who have already
been determined to lack the ability to possess firearms (such as the
loyalty oath and pardon systems invoked by Hawaii here) is not
“relevantly similar” to a system that requires all persons, the great
majority of whom cannot constitutionally be disarmed, to submit
individualized applications before they may exercise their constitutional
rights. Rahimi, 602 U.S. at 692 (citation omitted). That is, broadly
imposing a temporary restriction on all persons is materially different, in
terms of the resulting burden on Second Amendment rights, than
imposing burdens only on a targeted and discrete subset of persons who
arguably are permissibly subject to greater regulation. Cf. id. at 698–99
(holding that § 922(g)(8)(C)(i) satisfied the “how” component of Bruen
because, like the surety laws, its temporary burdens were targeted at only
those persons who had been judicially determined to present a threat to
the safety of others).
40 YUKUTAKE V. LOPEZ

the acquisition of firearms satisfies both the “how” and

“why” aspects of Bruen’s historically based test.11 To the
extent that Hawaii’s permitting system serves to condition
firearms acquisition on the completion of such a background
check, footnote 9 of Bruen compels the conclusion that that
aspect of the system is not facially invalid.
Plaintiffs contend, however, that the State must also
supply an adequate historical analogy for the particular
feature of the Hawaii permitting system that they challenge,
which is the temporal limit on the validity of permits. In
addressing that issue, one must again be guided by the
Court’s analysis in footnote 9 of Bruen. The Court there
addressed the possibility that specific features of an
otherwise-constitutionally-valid background-check and
permitting system might nonetheless violate the Second
Amendment, and it conspicuously did not require that each
logistical feature be separately justified by a historical
analogue. That makes sense, because the very concept that
a modern regulation need only be “relevantly similar” to a
historical analogue necessarily means that some particular
details of each regulatory approach will differ. Bruen, 597
U.S. at 29 (emphasis added). Moreover, in this case and in
Bruen footnote 9, the particular regulatory means at issue
(viz., point-of-acquisition background checks) is based on
modern technological developments, and requiring that
every operational detail of such a uniquely modern
regulation be separately justified by its own historical
analogue would disregard Bruen’s insistence on a more

11
Contrary to what the dissent suggests, see Dissent at 72-73, 89 n.14,
Heller held that the “exceptions [it] ha[s] mentioned”—including “laws
imposing conditions and qualifications on the commercial sale of
arms”—rested on “historical justifications.” Heller, 554 U.S. at 626–
27, 635 (emphasis added).
 YUKUTAKE V. LOPEZ 41

“nuanced approach” in such cases. Id. at 27. Instead, in

discussing possible constitutional challenges to particular
aspects of a background-check-based permitting system, the
Bruen Court drew on First Amendment jurisprudence
governing the logistical operation of permitting systems,
stating that any such permitting system must be guided by
“narrow, objective, and definite standards,” Bruen, 597 U.S.
at 38 n.9 (quoting Shuttlesworth, 394 U.S. at 151), and must
not employ “abusive” features such as “lengthy wait times”
and “exorbitant fees,” which would “deny ordinary citizens”
their Second Amendment rights. Id. Absent further
guidance from the Court, this same approach is appropriate
here. Accordingly, in determining whether a particular
feature of an otherwise-valid background-check-based
permitting system is impermissibly “abusive,” one should
apply in the Second Amendment context, mutatis mutandis,
the same principles applied in evaluating permitting systems
in the First Amendment context.12
In the limited areas—such as conducting a “march,
parade, or rally” in a “public forum[]”—in which the First
12
Applying First Amendment standards to this specific question is also
consistent with the Court’s repeated instruction, beginning in Heller, that
a historically based body of legal principles must be recognized in the
Second Amendment context, just as has been done in the First
Amendment context. See Bruen, 597 U.S. at 24 (noting that “Heller
repeatedly compared the right to keep and bear arms” to “the freedom of
speech in the First Amendment” and that Bruen’s historically based
approach “accords with how [the Court] protect[s]” First Amendment
free-speech rights); id. at 24–25 (noting that the basic framework of First
Amendment doctrine rests on an understanding of the “historic and
traditional categor[ies]” defining constitutionally protected speech); see
also Heller, 554 U.S. at 634–35 (similarly noting that the basic
framework of First Amendment law establishes certain historically based
categories and principles, rather than “a freestanding ‘interest-balancing’
approach”).
42 YUKUTAKE V. LOPEZ

Amendment may tolerate an advance permitting

requirement, the Court has held that any such permitting
scheme “must meet certain constitutional requirements.”
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130
(1992). The Court has described those requirements as
follows:

[The permit scheme] may not delegate overly

broad licensing discretion to a government
official. Further, any permit scheme
controlling the time, place, and manner of
speech must not be based on the content of
the message, must be narrowly tailored to
serve a significant governmental interest, and
must leave open ample alternatives for
communication.

Id. (citation omitted). In addition, an otherwise permissible

permitting system in the First Amendment context must not
involve “undue delay,” and decisions on permit applications
must be made “within a specified and reasonable time
period” and “there must be the possibility of prompt judicial
review in the event that the [permit] is erroneously denied.”
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228 (1990).
Transposing these limitations, mutatis mutandis, into the
Second Amendment context, establishes the following
requirements. A firearms permitting scheme must not
“delegate overly broad licensing discretion to a government
official.” Forsyth Cnty., 505 U.S. at 130. The applicable
time frames governing the system must be “specified” in
advance, avoid unreasonable and undue delays, and provide
for prompt judicial review. FW/PBS, Inc., 493 U.S. at 228.
The practical logistical burdens on firearms possession that
arise from the operation of the background-check-based
 YUKUTAKE V. LOPEZ 43

permitting system—which are akin to logistical limitations

on the “time, place, and manner” of speech—“must be
narrowly tailored to serve a significant governmental
interest” and ultimately “must leave open” the full exercise
of Second Amendment rights.13 Forsyth Cnty., 505 U.S. at
130. Application of these standards here confirms that
Hawaii’s temporal limitation on the validity of firearms-
acquisition permits is “abusive” within the meaning of
Bruen. See 597 U.S. at 38 n.9.14

13
The resulting highly constrained and limited application of means-
ends scrutiny is not inconsistent with Bruen and Heller, which rejected
the sort of “freestanding ‘interest balancing’ approach” that took hold in
the lower courts after Heller. See Heller, 554 U.S. at 634; see also
Bruen, 597 U.S. at 22–24. In the First Amendment context, such
reticulated tests have been applied by the Court within specific subareas
of historically grounded categories of permissible regulation. So too
here, such First-Amendment-based standards, under Bruen’s footnote 9,
will apply only in examining the details of a particular regulatory system
whose relevant contours have been held to satisfy Bruen’s historically
based standards. That approach is a far cry from what Bruen and Heller
rejected, under which the entire general framework of Second
Amendment jurisprudence was simply a means-end scrutiny test that
allowed judges “to decide on a case-by-case basis whether the right is
really worth insisting upon.” Bruen, 597 U.S. at 23 (quoting Heller, 554
U.S. at 634).
14
The dissent is flatly wrong when it repeatedly contends that these
standards—which are explicitly derived from the First Amendment test
for time, place, and manner regulations—are somehow equivalent to
“strict scrutiny.” See Dissent at 92, 93, 94, 95, 96. As the Supreme Court
held in Ward v. Rock Against Racism, 491 U.S. 781 (1989), the narrow
tailoring requirement applicable to time, place, and manner
regulations—unlike that applicable under strict scrutiny—does not
require that “the least restrictive or least intrusive means” of serving the
governmental interest be chosen, and the Court therefore explicitly
reaffirmed that it “ha[s] never applied strict scrutiny in this context.” Id.
44 YUKUTAKE V. LOPEZ

Here, as in the First Amendment context, the State must

provide “tangible evidence” that the purely incidental
restrictions imposed on Second Amendment rights by the
operation of its background-check-based permitting process
“are ‘necessary’ to advance” the significant governmental
interest it invokes to justify those restrictions. See Edwards
v. City of Coeur d’Alene, 262 F.3d 856, 863 (9th Cir. 2001)
(citation omitted); see also Bruen, 597 U.S. at 24 (“[W]hen
the Government restricts speech, the Government bears the
burden of proving the constitutionality of its actions.”
(quoting Playboy Ent. Grp., 529 U.S. at 816 )); Reynolds v.
Middleton, 779 F.3d 222, 229 (4th Cir. 2015) (noting that, in
the First Amendment context, the government must “present
actual evidence supporting its assertion that a speech
restriction does not burden substantially more speech than
necessary; argument unsupported by the evidence will not
suffice to carry the government’s burden”). The State is not
necessarily required “to conduct new studies or produce
evidence independent of that already generated” by others,
Cuviello v. City of Vallejo, 944 F.3d 816, 828 (9th Cir. 2019)
(citation omitted), but unsupported speculation will not
suffice, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
664 (1994). The State likewise bears the burden to
demonstrate that its incidental restrictions are “narrowly
tailored.” Edwards, 262 F.3d at 863; see also Ward v. Rock
Against Racism, 491 U.S. 781, 798–800 (1989).

at 798 & n.6 (emphasis added). Despite Ward’s square holding that
review of “time, place, or manner” regulations does not entail “strict
scrutiny,” id., the dissent defiantly insists that it will continue to call such
review “strict scrutiny.” See Dissent at 93 n.18. The dissent’s baffling
persistence in the deliberate misuse of language resembles Humpty
Dumpty’s insistence that, “When I use a word, . . . it means just what I
choose it to mean—neither more nor less.” LEWIS CARROLL, THROUGH
THE LOOKING-GLASS AND WHAT ALICE FOUND THERE 117 (1902 ed.).
 YUKUTAKE V. LOPEZ 45

The State has not carried this burden to justify its very
short temporal limit on firearms-acquisition permits. As
noted earlier, the State’s justification for the challenged
temporal limit is that a person who could lawfully acquire
firearms at the time the permit was granted might, due to a
change in circumstances, no longer be eligible at the actual
time of acquisition. But the State has pointed to no evidence
to support the view that it may reasonably be expected that
qualified citizens may suddenly become disqualified within
the span of 10 or even 30 days. While the State presumably
has a valid interest in ensuring that the background-check
results are not stale, the State has pointed to no evidence that
would support the extravagant view that anything over 10
days or 30 days counts as stale.
Moreover, just as in the First Amendment context, so too
here the State’s failure to consistently apply its asserted
rationale “may diminish the credibility of the government’s
rationale for restricting [constitutional rights] in the first
place.” Barr v. American Ass’n of Pol. Consultants, Inc.,
591 U.S. 610, 622 (2020) (plurality opinion) (quoting City
of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)). On its face,
§ 134-2(e) takes a very different approach to what counts as
too stale in the context of the acquisition of “any rifle or
shotgun”: in such cases, the acquisition permit remains valid
“for a period of one year from the date of issue without a
separate application and permit for each acquisition.” HAW.
REV. STAT. § 134-2(e) (emphasis added). The statute
reiterates that, if the person becomes disqualified from
possessing firearms during that one-year period, he remains
prohibited from acquiring a firearm notwithstanding the
permit, see id. (confirming that any such permit remains
“subject to the disqualifications under section 134-7”), and
it also states that the permit “shall be impounded” if the
46 YUKUTAKE V. LOPEZ

“permittee is arrested” for certain specified categories of

offenses, see id. The fact that Hawaii’s permitting system
thus takes an alternative approach with respect to rifles and
shotguns that is much less burdensome on Second
Amendment rights powerfully undercuts the State’s
argument that § 134-2(e)’s strict temporal limits vis-à-vis
handguns and revolvers are properly tailored to its asserted
interest in ensuring that a permittee remains qualified at the
actual moment of acquisition. See City of Ladue, 512 U.S.
at 52–53.
4
We conclude that Hawaii’s imposition of a very short
time limitation on the validity of an acquisition permit is
impermissibly “abusive.” Bruen, 597 U.S. at 38 n.9.
Accordingly, we affirm the district court’s judgment that this
aspect of § 134-2(e) is unconstitutional under the Second
Amendment. We remand for the district court to revise its
permanent injunction, as appropriate, in light of the recent
amendment to § 134-2(e) and to conform to our ruling.
V
We next address Plaintiffs’ challenge to § 134-3’s
requirement that, within five days of acquiring a firearm, the
firearm must be physically inspected by the local “chief of
police” as part of the process of registering the firearm.
Because this requirement regulates and burdens the
acquisition of firearms by ordinary citizens, it regulates
conduct that is covered by the text of the Second
Amendment and “presumptively protect[ed]” by it. Bruen,
597 U.S. at 24. As with § 134-2(e), the State therefore must
carry its burden to “justify its regulation by demonstrating
 YUKUTAKE V. LOPEZ 47

that it is consistent with the Nation’s historical tradition of

firearm regulation.” Id.15
In the district court, Plaintiffs did not challenge any
aspect of the registration process other than the requirement
to have the firearm physically inspected within five days.
Their challenge to § 134-3 was likewise narrowly focused in
their merits brief in this court, including their supplemental
brief addressing the impact of Bruen. Although Plaintiffs
subsequently filed a letter with this court purporting to
challenge the underlying “basic registration” requirement as
unconstitutional, we decline to consider this much-belated
contention raised for the first time in this court.
Accordingly, we consider only whether the State has carried
its burden to justify the in-person inspection requirement
imposed by § 134-3.
In analyzing whether the “how” and “why” of § 134-3’s
physical inspection requirement are “relevantly similar” to a
historical analogue, see Rahimi, 602 U.S. at 698, we first
summarize Hawaii’s proffered understanding of that
provision.
The challenged requirement for in-person inspection of
firearms within five days of acquisition was added to § 134-
3 by Act 74 of the 2020 Hawaii Session Laws and took effect
on September 15, 2020. See Act 74, § 9, 2020 Haw. Sess.
Laws 479, 483. According to the text of Act 74, the
15
The dissent contends that, because the amended version of § 134-3
now contains a significant exception (viz., for firearms purchased from a
licensed dealer), the challenged statute no longer regulates acquisition
simpliciter, but “only a few small categories of acquisition.” See Dissent
at 83 n.9. While it is true that the amended statute no longer applies to
all acquisitions, it cannot be said to be, like the restriction at issue in
B&L, so narrowly focused that it does not “meaningfully constrain[]”
Second Amendment rights. B&L, 104 F.4th at 119.
48 YUKUTAKE V. LOPEZ

Legislature’s findings in support of the amendments made

by Part II of that Act (including the in-person inspection
requirement) are as follows:

The legislature finds that a “ghost gun” is a

firearm that is assembled without serial
numbers or other identification markings. A
person may assemble a ghost gun from a
prepackaged kit requiring only minimal
expertise and, thus, bypass background
checks, registration, and other legal
requirements. The legislature also finds that
the State’s lack of laws addressing ghost guns
allows persons who would normally be
prohibited under state law from owning or
possessing firearms to do so. The ease with
which ghost guns may be obtained defeats the
intent of the State’s otherwise strict firearm
permitting and registration laws. It is these
laws that have helped Hawaii to achieve the
lowest gun violence death rate in the nation.

Act 74, § 2, 2020 Haw. Sess. Laws at 480–81. Based on this

finding, the declared purposes of the relevant amendments
are (1) to “[p]rohibit the manufacture, purchase, or obtaining
of firearm parts for the purpose of assembling a firearm
having no serial number” and (2) to “[a]mend certain
requirements relating to firearms registration.” Id. In
support of these purposes, Part II of Act 74 enacted
provisions that, inter alia, (1) make it a felony for anyone
other than a licensed manufacturer or dealer to produce or
obtain a firearm receiver lacking a serial number; (2) require
that, for “firearms assembled from parts created using a
three-dimensional printer, the serial number shall be
 YUKUTAKE V. LOPEZ 49

engraved on stainless steel and permanently embedded to the

firearm receiver during fabrication or construction”; and
(3) generally require that any firearm registered under § 134-
3 “be physically inspected by the respective county chief of
police or the chief’s representative at the time of
registration.” Act 74, §§ 3, 5, 2020 Haw. Sess. Laws at 481–
83.
In its briefs in this court, the State thus contends that the
in-person inspection requirement is necessary to address the
assertedly novel problem of firearms that can be assembled
without serial numbers. The State also contends that in-
person inspection serves the additional purposes of allowing
the police to determine whether the firearm is one that is
unlawful to possess under Hawaii law, as well as
“facilitating the tracing of firearms by law enforcement” in
the event that a particular firearm is used in a crime. Given
these asserted purposes of the in-person inspection
requirement, it is clear that, in contrast to the permitting
requirement at issue in § 134-2(e), the in-person inspection
requirement cannot be considered to be part of a
background-check system aimed at “ensur[ing] only that
those bearing arms in the jurisdiction are, in fact, ‘law-
abiding, responsible citizens.’” Bruen, 597 U.S. at 38 n.9.
The physical inspection of the newly acquired firearm for
purposes of enforcing a serial-number requirement and
subsequent tracing simply bears no logical or practical
relationship whatsoever to the conduct of any background
check to determine whether the acquirer is lawfully able to
possess firearms. Accordingly, in contrast to the “why” of
the permitting requirements discussed in footnote 9 of
Bruen, the “why” of § 134-3’s in-person inspection
requirement is not rooted in the historically based
“exception[]” allowing the government to bar “felons and
50 YUKUTAKE V. LOPEZ

the mentally ill” from possessing firearms. Heller, 554 U.S.

at 626, 635.
In an effort to nonetheless ground its novel in-person
inspection requirement in a sufficient historical analogue,
Hawaii points to a set of colonial-era militia laws. These
militia laws generally required all male citizens of fighting
age to serve in the militia;16 required militiamen to keep and
maintain fighting weapons suitable for militia service;17 and,
16
Georgia, for instance, required militia service of “all the Male free
Inhabitants of this State, from the Age of Sixteen to fifty Years.” See
U.S. SELECTIVE SERVICE SYSTEM, BACKGROUNDS OF SELECTIVE
SERVICE: MILITARY OBLIGATION: THE AMERICAN TRADITION
(hereinafter “MILITARY OBLIGATION”), Vol. II, Pt. 4, at p. 141 (1947)
(reproducing Ga. Act of Feb. 26, 1784). New York required the same of
“every able bodied male person[,] Indians and slaves excepted[,] residing
within this State from sixteen years of age to fifty,” id., Vol. II, Pt. 9, at
p. 271 (reproducing N.Y. Act of Apr. 3, 1778), while North Carolina
provided that the “Militia of every County shall consist of all the
effective men from Sixteen to fifty years of Age inclusive,” id., Vol. II,
Pt. 10, at p. 68 (reproducing N.C. “Act to Regulate and Establish a
Militia in This State,” enacted during the legislative session of Apr. 14,
1778–Jan. 19, 1779).
17
See, e.g., Ch. 33, § 1, 2d Cong., 1 Stat. 271, 271 (May 8, 1792) (stating
that every enrolled militiaman must, inter alia, “provide himself with a
good musket or firelock”); MILITARY OBLIGATION, supra, Vol. II, Pt. 2,
at pp. 250, 256 (reproducing Conn. “Act for forming, regulating, and
conducting the military Force of this State,” enacted in 1784 (requiring
militiamen to “be furnished at their own Expence” with, among other
things, “a well fixed Musket” with a “Barrel not less than three Feet and
a Half long”)); MILITARY OBLIGATION, supra note 16, Vol. II, Pt. 9, at
p. 271 (reproducing N.Y. Act of Apr. 3, 1778 (requiring every militia
member to “furnish and provide himself at his own expence with a good
musket or firelock fit for service,” as well as “a sufficient bayonet with
a good belt”)); MILITARY OBLIGATION, supra, Vol. II, Pt. 14, at pp. 255,
274 (reproducing Va. Act of Jul. 17, 1775 (requiring “every militia man”
to “furnish himself with a good rifle, if to be had, or otherwise with a
tomahawk” or other suitable weapon)).
 YUKUTAKE V. LOPEZ 51

in particular, often required militiamen to allow their

weapons to be inspected in order to ensure their continued
suitability for combat. Connecticut law, for example,
required a militia officer to review “all under his command,”
as well as “all others dwelling within the limits of his
company who are by law obliged to keep arms,” by requiring
such persons “to bring forth their arms and ammunition at a
certain time and place” to ensure that they were not
“deficient in arms or ammunition.” MILITARY OBLIGATION,
supra note 16, Vol. II, Pt. 2, at pp. 201–02 (reproducing
Conn. Act of Oct. 11–25, 1775). South Carolina,
meanwhile, provided that “every person liable to bear arms
by this Act, whose arms, ammunition or accoutrements shall
be found at any muster deficient . . . shall forfeit and pay” up
to three pounds, unless he can show that his failure was “not
from wilful neglect.” Id., Vol. II, Pt. 13, at pp. 61, 67–68
(reproducing S.C. Act of Mar. 28, 1778). And
Massachusetts law required militia commanders to
periodically review their companies’ “arms and equipments”
for combat suitability. Id., Vol. II, Pt. 6, at pp. 261, 264
(reproducing Mass. “Act for regulating and governing the
Militia of the Commonwealth of Massachusetts,” as
contained in 1789 compilation of “Perpetual Laws” of
Mass.). Hawaii also notes that many of these militia laws
required militia commanders to make a general report of the
actual state of the militia and of its arms. See, e.g., Ch. 33,
§ 10, 2d Cong., 1 Stat. 271, 273 (May 8, 1792) (requiring
specified militia officials to make a report, at least annually,
of “the actual situation of the arms, accoutrements, and
ammunition of the several corps”); MILITARY OBLIGATION,
supra, Vol. II, Pt. 6, at pp. 220, 224 (reproducing Mass. Act
of Jan. 22, 1776 (requiring the relevant clerk of the militia to
52 YUKUTAKE V. LOPEZ

make periodic reports containing “an exact list of his

company, and of each man’s equipments”)).
Hawaii emphasizes that the “how” of these colonial laws
is similar to the challenged provision of § 134-3, because the
colonial laws, like § 134-3, required the covered persons to
submit their firearms for inspection. But there are also
significant differences in the “how” of these laws, most
notably that the inspection requirement in the colonial laws
was not tied to, or a condition of, the acquisition of a firearm.
More importantly, however, the “why” of the colonial laws
bears no resemblance to that of § 134-3. On their face, the
colonial-era weapons-inspection laws were aimed at
ensuring that weapons were operable, so that they would be
ready for immediate use in the event of military need. As
the district court aptly observed here, the colonial militia
laws were intended “to ensure that the armed forces
maintained weapon stockpiles suitable for the nation’s
defense and warfare needs.” 554 F. Supp. 3d at 1087. That
objective is entirely distinct from those that Hawaii proffers
in defense of § 134-3’s in-person inspection requirement.
Hawaii contends that the “why” is nonetheless similar
because both § 134-3 and the colonial militia laws were
ultimately aimed at ensuring the safety of the community.
But Bruen and Rahimi do not permit us to define the “why”
of a regulation at that enormously high level of generality.
Because firearms are, by definition, dangerous weapons, and
all firearms regulations are thus, in some general sense,
ultimately aimed at “public safety,” Hawaii’s loose approach
to applying Bruen’s test would effectively eviscerate the
Second Amendment’s protections. Bruen instead requires a
more focused approach on whether “laws at the founding
regulated firearm use to address particular problems.”
Rahimi, 602 U.S. at 692 (emphasis added).
 YUKUTAKE V. LOPEZ 53

Accordingly, we conclude that the colonial militia

inspection laws are not “relevantly similar” to § 134-3 for
purposes of applying Bruen’s historically based test. Bruen,
597 U.S. at 29.
Hawaii alternatively argues that § 134-3’s physical
inspection requirement should be upheld based on an
analogy to the discussion of background-check-based
permitting systems in footnote 9 of Bruen. According to
Hawaii, the overall registration system—which Plaintiffs
did not challenge below—is validly justified by a historical
analogy, and the newly added physical-inspection
requirement is merely an “[i]ncidental administrative and
enforcement provision[]” that is “valid as [a] corollar[y] to
[the] otherwise lawful and enforceable underlying
[registration] regime[].” We reject this contention. Even
assuming arguendo that Hawaii’s basic system of registering
firearms by owner, type, serial number, etc., is valid under
Bruen—a point we do not decide—Hawaii’s broad in-person
inspection requirement cannot be justified as merely a proper
ancillary logistical measure in support of such a system. As
explained earlier, the approach that Hawaii posits here
would, at the very least, require Hawaii to point to evidence
that the in-person inspection requirement is “narrowly
tailored to serve a significant governmental interest.” See
supra at 43. Hawaii has failed to do so. Here, as in the later
Heller litigation, the government has failed to point to
evidence supporting its conclusion that the addition of a
broadly applicable and burdensome physical inspection
requirement will materially advance the objectives of the
registration system. See Heller v. District of Columbia, 801
F.3d 264, 277 (D.C. Cir. 2015) (invalidating D.C.’s
physical-inspection requirement on this ground). Although
Hawaii insists that the physical-inspection requirement was
54 YUKUTAKE V. LOPEZ

properly added to address the novel and specific problem of

home-assembled guns made using “3-D printers” or
assembly kits, § 134-3 is not properly tailored to that
problem because it broadly applies to acquisition of all types
of firearms and not just to so-called “ghost guns.” Moreover,
that particular significant lack of tailoring remains, even
after the recent amendment of § 134-3 that exempts from the
physical-inspection requirement those firearms that have
been purchased from licensed dealers.
We therefore affirm the district court’s conclusion that
the in-person inspection requirement violates the Second
Amendment. As with Plaintiffs’ challenge to § 134-2(e), we
remand to the district court to revise its permanent
injunction, as appropriate, in light of the recent amendment
to § 134-3 and to conform to our ruling.
VI
For the foregoing reasons, we generally affirm the
district court’s judgment, but we remand to the district court
with instructions to revise its judgment in light of the recent
amendments to the challenged laws.
AFFIRMED and REMANDED.
 YUKUTAKE V. LOPEZ 55

Lee, Circuit Judge, concurring.

The U.S. Supreme Court in New York State Rifle & Pistol
Ass’n, Inc. v. Bruen reset the legal landscape for the Second
Amendment. 597 U.S. 1 (2022). No longer could courts rely
on a malleable means-end analysis. Instead, the Court set a
framework rooted in text, history, and tradition. Id. at 24.
But Bruen did not provide a detailed map for all factual
scenarios. This is not surprising or unusual: Consider, for
example, the Court’s often-jumbled caselaw for the
Establishment Clause,1 the Free Exercise Clause,2 the Free
Speech Clause3, or the Takings Clause.4 The Supreme Court
has issued dozens of opinions on these clauses over the past
1
Compare Van Orden v. Perry, 545 U.S. 677 (2005) (Ten
Commandments display in Texas State Capitol did not violate the
Establishment Clause) with McCreary County v. ACLU, 545 U.S. 844
(2005) (Ten Commandments display at Kentucky courthouse violated
the Establishment Cause).
2
Compare Wisconsin v. Yoder, 406 U.S. 205 (1972) (law compelling
Amish family to send children to high school against beliefs violated the
Free Exercise Clause) with United States v. Lee, 455 U.S. 252 (1982)
(law requiring Amish to pay social security tax against beliefs did not
violate the Free Exercise Clause).
3
Compare Morse v. Frederick, 551 U.S. 393 (2007) (no violation of First
Amendment where school punished student for holding a banner that
says “Bong HiTs for Jesus”) with Mahanoy Area School Dist. v. B.L.,
594 U.S. 180 (2021) (violation of First Amendment where school
punished student for posting “fuck school fuck softball fuck cheer fuck
everything”).
4
Compare Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)
(Pennsylvania statute prohibiting coal mining that caused land
subsidence violated Takings Clause) with Keystone Bituminous Coal
Ass'n v. DeBenedictis, 480 U.S. 470 (1987) (Pennsylvania statute
prohibiting coal mining that caused land subsidence did not violate the
Takings Clause).
56 YUKUTAKE V. LOPEZ

several decades in hopes of providing clarity—yet it

continues to grant certiorari as it addresses new factual
scenarios. Few people would, however, say that we should
jettison our entire analytical framework for these
constitutional provisions just because they can be hard to
apply in some cases. Similarly, it can be difficult to discern
the scope of the Second Amendment, especially because the
Court has only recently (and sparingly) analyzed the
contours of the Second Amendment.
Judge Collins’ excellent majority opinion methodically
analyzes the Court’s Second Amendment jurisprudence. I
join his opinion except for his discussion in IV.B.3 on how
to interpret the opaque dicta in footnote 9 of Bruen. In that
footnote, the Court suggested that “shall issue” licensing
regimes for firearms—in which governmental officials must
issue a firearms permit if certain objective requirements are
met—are unconstitutional if they are used “toward abusive
ends.” Id. at 38 n.9. It then cited examples of “lengthy wait
times in processing license applications or exorbitant fees
[that] deny ordinary citizens their right to public carry.” Id.
Judge Collins states that Bruen suggested that we should
apply a limited means-end inquiry borrowed from the First
Amendment’s caselaw in determining whether a permitting
scheme is “abusive.” The majority opinion then holds that
Hawaii’s requirement that a person obtain a gun within 30
days of receiving a permit is “abusive” under this test.
Admittedly, I am unsure what to make of footnote 9. But
given that the Bruen court shunned interest-balancing tests,
I think we should—absent clear direction from the Supreme
Court—determine “abusive ends” by comparing Hawaii’s
temporal limit in its firearms permitting regime to relevantly
similar historical analogues. And as a practical matter, I am
wary of even a limited means-end inquiry because our court
 YUKUTAKE V. LOPEZ 57

has a history and tradition of whittling down the Second

Amendment through means-end analysis.
* * * *
In District of Columbia v. Heller, the Supreme Court
clarified that the Second Amendment protects an “individual
right to keep and bear arms” for “defensive purposes.” 554
U.S. 570, 598 (2008). The Court later incorporated this right
against the States under the Fourteenth Amendment but it
did not provide more substantive guidance to lower courts.
See McDonald v. City of Chicago, 561 U.S. 742 (2010).
Except for a five-paragraph per curiam opinion in Caetano
v. Massachusetts, 577 U.S. 411 (2016), it would be a dozen
years until the Court revisited the Second Amendment in
Bruen.
But to understand why the Court ruled the way it did in
Bruen, we need to take a brief detour to examine what
happened in the inferior courts. After Heller and McDonald,
lower courts began applying tiers of scrutiny to Second
Amendment challenges to firearm restriction laws. On
paper, that mode of analysis appeared attractive, as we have
applied that framework to government infringement of rights
under the Free Speech and Equal Protection Clause. There,
courts properly apply searching scrutiny when the
government seeks to limit the people’s constitutional rights.
Anyone thumbing through the Federal Reporter volumes
will find that they are littered with literally dozens of
opinions in which lower courts have applied strict scrutiny
to Free Speech and Equal Protection claims.
Yet when it came to the Second Amendment, lower
courts almost never applied strict scrutiny, even to laws that
severely restricted the right to bear arms. They instead
purported to apply intermediate scrutiny. Again, on paper,
58 YUKUTAKE V. LOPEZ

perhaps that seemed defensible when applied to less severe

restrictions. But, in reality, lower courts so diluted
intermediate scrutiny that it amounted to a rational basis
review of laws restricting firearms.
This is how lower courts pre-Bruen neutered the Second
Amendment: As every law school student knows, the
standard formulation for intermediate scrutiny is that the
government must have an “important” goal and that the
challenged law is “substantially related” to that interest.
Craig v. Boren, 429 U.S. 190, 197 (1976) (emphasis added).
And the “substantially related” prong has some “bite” to it.
See Boren, 429 U.S. at 200–04 (striking down law limiting
alcohol sales for males under 21 years old and females under
18 as not “substantially related” to governmental interest in
traffic safety, even though one study showed that over 90%
of all persons arrested for driving under the influence were
male).
In a Second Amendment challenge, public safety will
almost always satisfy the “important” goal prong of
intermediate scrutiny. So whether a law falls will hinge on
whether it is “substantially related” to the governmental
interest of public safety. But lower courts defanged
intermediate scrutiny’s “bite” by replacing “substantially
related” with “reasonable fit.” See, e.g., United States v.
Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013) (requiring only
a “reasonable fit between the challenged regulation and the
asserted objective”); Worman v. Healey, 922 F.3d 26, 38 (1st
Cir. 2019) (stating that “there must be a ‘reasonable fit’
between the restrictions imposed by the law and the
government’s valid objectives”); Association of New Jersey
Rifle and Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910
F.3d. 106, 119 (3d Cir. 2018) (asking only for “a reasonable
fit between that asserted interest and the challenged law”).
 YUKUTAKE V. LOPEZ 59

But “reasonable fit” is basically like “rationally related”

under the rational basis test. So once lower courts replaced
“substantially related” with “reasonable fit” under
intermediate scrutiny, they upheld almost every firearm
restriction law because such a law could “reasonably”
further the government’s interest of public safety. Even laws
that were grossly overbroad or intrusive would still pass
constitutional muster because those laws could “reasonably”
advance the government’s goal.
And how did lower courts tamper with one of the staple
formulations of constitutional law? Sometimes lower courts
would cherry-pick an out-of-context reference to
“reasonable fit” from a commercial speech case. Chovan,
735 F.3d at 1139 (citing United States v. Chester, 628 F.3d
673, 683 (4th Cir. 2010) (quoting Board of Trustees of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989))). But if one
looks at the underlying Supreme Court case, it does not
support the “reasonable fit” formulation. The Supreme
Court held that the “not more extensive than is necessary”
element of Central Hudson’s commercial speech test falls
short of a “least restrictive means” standard. Fox, 492 U.S.
at 480. In explaining what “reasonable fit” means, the Court
said that it is “a fit that is not necessarily perfect, but
reasonable; that . . . is ‘in proportion to the interest served’”;
and that is “a “means narrowly tailored.” Id. In other words,
“reasonable fit” as used by the Supreme Court in that case
is, if anything, more like “narrowly tailored.” No matter—
lower courts ignored that pertinent language and only cited
60 YUKUTAKE V. LOPEZ

the “reasonable fit” language to suggest that it is akin to

rational basis.5
In other cases, lowers courts imported the “reasonable
fit” standard from two related Supreme Court cases that
addressed technical rules imposed on cable television
companies. See, e.g., Pena v. Lindley, 898 F.3d 969, 979
(9th Cir. 2018) (quoting Turner Broadcasting System, Inc. v.
F.C.C., 520 U.S. 180, 195 (1997)). But as the Court
explained in Turner, this deferential review applies to “cases
. . . involving congressional judgments concerning
regulatory schemes of inherent complexity and assessments
about the likely interaction of industries undergoing rapid
economic and technological change” such that “the
deference to Congress is in one respect akin to deference
owed to administrative agencies because of their expertise.”
520 U.S. at 196. While the Second Amendment implicates
weighty and emotionally charged issues, it does not involve
complex regulatory or esoteric technological issues like
those addressed in Turner. Yet many lower courts adopted
this Chevron-like deference when it came to the Second
Amendment.
None of this should be a revelation. Our panel opinion
in Duncan v. Becerra devoted several pages explaining how
we went astray in our Second Amendment cases. 970 F.3d
1133, 1165–67 (9th Cir. 2020), vacated, 988 F.3d 1209 (9th
Cir. 2021). (Indeed, much of this discussion is cribbed

5
It was also dubious to compare laws restricting firearms commonly
used for self-defense to commercial speech restrictions. Commercial
speech—unlike political speech—does not fall within the core First
Amendment right. See Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980). In contrast, the Second
Amendment protects the “core lawful purpose of self-defense.” Heller,
554 U.S. at 630.
 YUKUTAKE V. LOPEZ 61

directly from that panel opinion). That panel opinion was

vacated after a majority of this court voted to take it en banc.
And what happened during en banc proceedings? The en
banc court adopted the “reasonable fit” standard again by
citing the inapt Turner formulation of intermediate scrutiny.
Duncan v. Bonta, 19 F. 4th 1087, 1108 (9th Cir. 2021) (en
banc). And under this “reasonable fit” standard, the outcome
was preordained because the en banc court essentially
applied rational basis review, as it held that it must “defer to
reasonable legislative judgments.” Id. Notably, the en banc
opinion never addressed the panel opinion’s lengthy
discussion of why a “reasonable fit” standard cannot be
incorporated into an intermediate scrutiny analysis. And
Duncan was not an aberration. As one of our colleagues has
explained, our court has taken en banc almost every single
panel opinion in which we vindicated a Second Amendment
right. See Duncan, 19 F.4th at 1165 (VanDyke, J.,
dissenting).
* * * * *
It was under this backdrop of inferior court resistance
that the Supreme Court in Bruen rejected the tiers of scrutiny
analysis, noting that “Heller and McDonald do not support
applying means-end scrutiny in the Second Amendment
context.” 597 U.S. at 19. It then held that lower courts
should first see if the “Second Amendment’s plain text
covers an individual’s conduct.” Id. at 24. If so, then “the
Constitution presumptively protects that conduct.” Id. And
the “government must then justify its regulation by
demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Id. In some cases,
this “inquiry will be fairly straightforward.” Id. at 26. But
in other cases, it will be harder because of, say, technological
changes. Courts should thus look at “whether a historical
62 YUKUTAKE V. LOPEZ

regulation is a proper analogue for a distinctly modern

firearm regulation.” Id. at 28–29. In doing so, the historical
analysis should center on (1) “whether modern and historical
regulations impose a comparable burden on the right of
armed self-defense,” and (2) whether that burden is
comparably justified.” Id. at 29. To justify its gun
regulation, the government can “identify a well-established
and representative historical analogue, not a historical twin.”
Id. at 30. See also United States v. Rahimi, 602 U.S. 680,
698 (2024) (applying “relevantly similar” historical
analogue to uphold § 922(g)(8)(C)(i)).
The Court in Bruen then invalidated New York state’s
“may carry” gun licensing regime—which gave wide
discretion to the government to reject a firearms permit—
given the lack of a historical analogue. In footnote 9, it
added:

To be clear, 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].” Drake v. Filko, 724 F.3d 426, 442
(CA3 2013) (Hardiman, J., dissenting).
Because these licensing regimes do not
require applicants to show an atypical need
for armed self-defense, they do not
necessarily prevent “law-abiding,
responsible citizens” from exercising their
Second Amendment right to public carry.
District of Columbia v. Heller, 554 U.S. 570,
635 (2008). Rather, it appears that these
shall-issue regimes, which often require
 YUKUTAKE V. LOPEZ 63

applicants to undergo a background check or

pass a firearms safety course, are designed to
ensure only that those bearing arms in the
jurisdiction are, in fact, “law-abiding,
responsible citizens.” Ibid. And they likewise
appear to contain only “narrow, objective,
and definite standards” guiding licensing
officials, Shuttlesworth v. Birmingham, 394
U.S. 147, 151 (1969), rather than requiring
the “appraisal of facts, the exercise of
judgment, and the formation of an opinion,”
Cantwell v. Connecticut, 310 U.S. 296, 305
(1940)—features that typify proper-cause
standards like New York’s. That said,
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.

597 U.S. at 38 n.9.

But how do figure out whether a “shall issue” licensing
regime—which curbs the discretion of government
officials—is being used for “abusive ends”? The opinion
offers little guidance, forcing us to flyspeck a footnote
containing brief and murky dicta.
Here, one of the issues is whether Hawaii’s “shall issue”
regime—which now imposes a 30-day time period to obtain
a gun after receiving the permit—is “abusive.” Haw. Rev.
Stat. § 134-2(e). Judge Collins suggests that we apply a
similar but limited means-end method from the First
64 YUKUTAKE V. LOPEZ

Amendment context for analyzing governmental permits for

parades and other expressive activities. From a logical
reasoning perspective, his analysis perhaps makes sense and
it anchors us to a framework that we have applied before.
Cf. Eugene Volokh, Implementing the Right to Keep and
Bear Arms after Bruen, 98 N.Y.U. L. Rev. 1950, 1960–61
(2023) (noting that it “might be feasible” to apply similar
First Amendment analysis for analyzing burdens on Second
Amendment rights).
But without more guidance from the Supreme Court, I
am reluctant to say that even a limited means-ends inquiry is
appropriate, especially given the Court’s emphatic rejection
of such analysis in Bruen. 597 U.S. at 19–24. And from a
practical perspective, I fear that inferior courts will mangle
and render meaningless even this limited means-end inquiry,
as we have seen over a dozen years pre-Bruen. Supra at 4–
8.
Without further guidance from the Court, I would
construe footnote 9 to require the government to provide a
historical analogue to justify the temporal limit on firearm
permits. The state of Hawaii has failed to do so. It thus
cannot restrict the Second Amendment right of its people.
 YUKUTAKE V. LOPEZ 65

BEA, Circuit Judge, dissenting:

This case could have been much more simple. The

question it puts is straightforward: Does the Second
Amendment presumptively prohibit the government from
imposing facially neutral, ancillary regulations on the
acquisition of firearms? In my view, text and precedent alike
speak with a clear voice in answering “no.” But the majority
does not agree. My colleagues hold instead that any
government regulation which applies generally to all firearm
acquisitions, no matter how small, is presumptively invalid
under the Second Amendment, subject to the government’s
steep burden of proving otherwise. But that approach avoids
the Amendment’s text, misreads instructions from the
Supreme Court, contravenes controlling Circuit precedent,
and diverges from some of our sister Circuits’ applications
of the Second Amendment. The result of the majority’s
errors is a regime of tight supervision over state gun laws, in
which the Federal Judiciary is required to police the minutiae
of every state firearm licensing system across the Nation.
The Second Amendment does not require such a disruptive
result. I respectfully dissent.1
The majority’s critical error is its conclusion that “the
acquisition of a firearm by an individual, through purchase
or otherwise,” is conduct “covered by the plain text of the
Second Amendment.” Maj. Op. at 33. From that
conclusion, the majority reasons that the Supreme Court’s
holding in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022), compels us to apply that case’s historical
analysis to government regulations which impose conditions
1
While I dissent from the disposition of the appeal, I concur in the denial
of Hawaii’s motion to dismiss the appeal as moot for the reasons stated
in the majority opinion. See Maj. Op. at 11–15.
66 YUKUTAKE V. LOPEZ

on an individual’s ability to acquire a firearm like the ones

at issue here. Maj. Op. at 33. I disagree with the premise of
that reasoning. The plain text of the Second Amendment
does not wholly protect the purchase or the acquisition of
firearms. The majority’s contrary conclusion conflicts with
controlling Circuit precedent, and it creates a split between
this Circuit and at least two others over how to apply Bruen’s
still-novel historical test to cases like this one.
In making that mistake, the majority also adopts a
strained reading of the Supreme Court’s Second Amendment
cases. Bruen explicitly instructs that its history and tradition
test is to be applied only to those regulations which directly
regulate conduct covered by the “plain text” of the Second
Amendment. 597 U.S. at 24. Bruen’s footnote 9—about
which more later—made clear the Court’s intention to leave
largely undisturbed those permitting schemes which “do not
require applicants to show an atypical need for armed self-
defense.” See id. at 38 n.9. Such permitting schemes, the
Court explained, “do not necessarily prevent ‘law-abiding,
responsible citizens’ from exercising their Second
Amendment right to public carry.” Id. (quoting District of
Columbia v. Heller, 554 U.S. 570, 635 (2008)). Heller
similarly carved out of its holding certain “presumptively
lawful regulatory measures” such as “conditions and
qualifications on the commercial sale of arms.” 554 U.S. at
626–27 & n.26. In my view, these instructions from Bruen
and Heller implicitly recognize what my colleagues miss:
facially neutral, ancillary regulations imposing conditions on
the acquisition of firearms do not regulate conduct protected
by the Second Amendment’s plain text.
This is not to say that the acquisition of arms is wholly
unprotected from government regulation, or that regulations
like the ones before us today can entirely evade judicial
 YUKUTAKE V. LOPEZ 67

scrutiny. Instead, consistent with Bruen and Heller, I would

recognize a presumption of constitutionality when the
regulations in question are facially neutral, ancillary
regulations which impose conditions on acquisition of arms.
To rebut or overcome that presumption of constitutionality,
a plaintiff challenging a state licensing regulation should
bear the burden of alleging and proving that the regulation at
issue is “put toward abusive ends,” such that the regulation
effectively or in practice “den[ies] ordinary citizens their”
rights to keep and carry. See Bruen, 597 U.S. at 38 n.9. In
other words, he needs to prove that the regulation operates
to “prevent ‘law-abiding, responsible citizens’ from
exercising their Second Amendment right[s].” Id. (quoting
Heller, 554 U.S. at 635).
But on this “facial challenge to one logistical detail of
Hawaii’s permitting system,” Maj. Op. at 37 (emphasis in
original), Plaintiffs have neither alleged nor proven that they
or anyone else are in practice denied their rights to keep and
carry arms. Plaintiffs have therefore not carried their burden
of proving that the regulations they challenge are abusive
within the meaning of Bruen footnote 9 and our precedents.
I would therefore reverse the district court’s judgment and
vacate the permanent injunction.
I.
A.
It will be helpful to start with some first principles, from
which the rest of the analysis will follow. The Second
Amendment provides that “the right of the people to keep
and bear Arms, shall not be infringed.” U.S. Const. amend.
II. Before going any further, it’s worth pausing to define the
precise meaning of the words “keep” and “bear.” The
definitions are not particularly controversial, but the plain
68 YUKUTAKE V. LOPEZ

textual meaning of the operative words should always be the

touchstone of the analysis.
“[T]he most natural reading of ‘keep Arms’ in the
Second Amendment is to ‘have weapons.’” Heller, 554 U.S.
at 582. The “most relevant[]” meanings of “keep” include
“to retain; not to lose,” and “to have in custody.” Id (cleaned
up). At least one early nineteenth century dictionary
“defined [keep] as ‘[t]o hold; to retain in one’s power or
possession.’” Id. (quoting N. Webster, American Dictionary
of the English Language (1828) (reprinted 1989)). At the
time of the Framing, “‘[k]eep arms’ was simply a common
way of referring to possessing arms, for militiamen and
everyone else.” Id. at 583 (emphasis omitted). So, the right
to keep arms refers to the right to possess and retain control
of arms.
The verb “bear” also has a well-accepted meaning. “At
the time of the founding, as now, to ‘bear’ meant to ‘carry.’”
Id. at 584 (citation omitted). In the context of bearing arms
in particular, “the term has a meaning that refers to carrying
for a particular purpose—confrontation.” Id. Thus, “the
right to bear arms refers to the right to wear, bear, or carry
upon the person or in the clothing or in a pocket, for the
purpose of being armed and ready for offensive or defensive
action in a case of conflict with another person.” Bruen, 597
U.S. at 32 (cleaned up).
So, the plain text of the Second Amendment protects two
discrete, specific actions: (1) to possess and retain control of
arms, and (2) to carry arms in public in case of confrontation
(i.e., for self-defense). Id.; Heller, 554 U.S. at 582–84. The
plain text of the Second Amendment does not speak of any
right to “purchase” or “acquire” or “receive” arms, which
actions constitute conduct different from “keeping” and
 YUKUTAKE V. LOPEZ 69

“bearing.” As the majority opinion and some of our prior

cases point out, however, the right to keep and bear arms
would be rather hollow were the government able to ban the
purchase or acquisition of firearms nonetheless. See Maj.
Op. at 27–28. I agree with the majority that “one cannot
ordinarily ‘possess’ an item—particularly something as
complex as a firearm—if he or she cannot acquire it.” Id. at
28. That is because acquisition, or “tak[ing] possession,” id.,
is a predicate act necessary to actual possession.
“The law has long recognized that the ‘[a]uthorization of
an act also authorizes a necessary predicate act.’” Luis v.
United States, 578 U.S. 5, 26 (2016) (Thomas, J., concurring
in the judgment) (quoting A. Scalia & B. Garner, Reading
Law: The Interpretation of Legal Texts 192 (2012)
(hereinafter Scalia & Garner)). This “ancient” principle is
known as the “predicate-act canon.” Scalia & Garner 192.
The basic idea is that whenever a power is given by a statute
or some other text, any other action that is necessary to
exercise that power is also given by implication. Id. 192–93.
“This logic applies equally to individual rights. . .
Constitutional rights thus implicitly protect those closely
related acts necessary to their exercise.” Luis, 578 U.S. at
26 (Thomas, J., concurring in the judgment). As relevant
here, for example, “[t]he right to keep and bear arms . . .
implies a corresponding right to obtain the bullets necessary
to use them, . . . and to acquire and maintain proficiency in
their use.” Id. (internal citations and quotations omitted).
The predicate-act canon therefore sheds some light on
how we ought to think about protecting the acquisition of
firearms from government regulation, considering the
Second Amendment’s textual protection of the rights to keep
and bear them. The protection of predicate acts, though,
does not imply a level of protection identical to that of the
70 YUKUTAKE V. LOPEZ

core right. “The predicate-act canon must be applied with

caution, lest the tail of what is implied wag the dog of what
is expressly conferred.” Scalia & Garner 193. So, for
example, “permission to harvest wheat on one’s land implies
permission to enter on the land for that purpose,” Scalia &
Garner 192 (emphasis added), but not for any other purpose,
such as to hunt or to drill for water. In the context of keeping
and bearing arms, the canon instructs that we should protect
all acts—and only those acts—which are reasonably
necessary to effectuate the right to keep and bear arms. The
acquisition of arms, then, certainly is protected by the
Second Amendment, but only to the extent necessary to
preserve the explicitly granted rights to keep and bear arms.2
B.
With those interpretive principles in mind, let us turn to
Heller and Bruen. Both cases, unlike this one, concerned
regulations which directly restricted the core textual Second
Amendment rights to “keep and bear” arms. The District of
Columbia law at issue in Heller “totally ban[ned] handgun
possession in the home,” i.e., it directly prohibited the

2
The majority characterizes this view as thinking the Second
Amendment “protect[s] the right to retain guns that you have no right to
acquire.” Maj. Op. at 30. That is not true. The difference of opinion is
over what is protected by the Amendment’s plain text. And my view is
that there is a difference between rights which are expressly conferred
and those which are implied by the text, with the latter category of rights
receiving protection only to the extent necessary to preserve the former.
It is not the case, as should be clear, that I view the Second Amendment
as not protecting rights to acquire arms at all. Instead, it prohibits the
government from regulating acquisition in a way that effectively, or “in
practice,” denies the rights to possess and carry. See Bruen, 597 U.S. at
80 (Kavanaugh, J., concurring); see also id. at 38 n.9 (distinguishing
state licensing laws which do not operate to “prevent law-abiding,
responsible citizens from exercising their Second Amendment right[s]”).
 YUKUTAKE V. LOPEZ 71

keeping of arms. See 554 U.S. at 628. In Bruen, the New

York regulation at issue required individuals to show
“proper cause” to obtain a license to carry a handgun. 597
U.S. at 11–12. Because New York’s law did not allow most
ordinary citizens to “carry[] handguns publicly for self-
defense,” the Court had “little difficulty concluding that” the
law regulated conduct protected by the “plain text of the
Second Amendment.” Id. at 32. In each case, the law at
issue clearly and directly restricted the ability of ordinary
citizens to keep arms (in the case of Heller) or bear arms (in
the case of Bruen).
Both opinions were also careful to distinguish the laws
at issue from other types of arms regulations, such as
regulations requiring background checks, Bruen, 597 U.S. at
38 n.9, and “laws imposing conditions and qualifications on
the commercial sale of arms,” Heller, 554 U.S. at 626–27.
Footnote 9 of Bruen, which my colleagues spend much time
dissecting, reasoned that at least some preconditions to
obtaining a firearms permit “do not necessarily prevent ‘law
abiding, responsible citizens’ from exercising their Second
Amendment right to public carry.” Bruen, 597 U.S. at 38
n.9 (quoting Heller, 554 U.S. at 635). The Court in Heller
described preconditions on purchase as “presumptively
lawful.” See 554 U.S. at 626–27 & n.26. And Justice
Kavanaugh’s concurrence in Bruen emphasized that the
decision “does not prohibit States from imposing licensing
requirements for carrying a handgun for self-defense.”
Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring).3 Indeed,
in Justice Kavanaugh’s view, Bruen did not even “affect the

3
As the majority recognizes, Justice Kavanaugh’s concurrence was
joined by the Chief Justice, and both Justice’s votes were necessary to
Bruen’s six-justice majority. Maj. Op. at 23.
72 YUKUTAKE V. LOPEZ

existing license regimes” in the vast majority of states with

a “shall-issue” regulatory scheme. Id.
There is no need to guess, as does the majority, why the
Court in Heller and Bruen thought that regulations which
impose preconditions to obtaining a firearms permit were
different from the laws before the Court in those cases. See
Maj. Op. at 39 (“Unfortunately, neither the Bruen Court in
footnote 9, nor Justice Kavanaugh in his Bruen concurrence,
set forth their precise reasoning for implicitly concluding
that modern background-check systems satisfy the ‘how’
prong of Bruen’s historically based test.”). The test
announced in Bruen answers that question: “When the
Second Amendment’s plain text covers an individual’s
conduct, . . . [t]he government must [] justify its regulation
by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” 597 U.S. at 24
(emphasis added). What footnote 9 implicitly observed is
that most preconditions on a permit to acquire a firearm do
not regulate conduct covered by the “plain text” of the
Second Amendment. Instead, such regulations impose
conditions and qualifications on an individual’s ability to
acquire a gun, not when, where, or how he can possess
(Heller) or carry (Bruen) one.
The majority is therefore incorrect that the Bruen Court
“implicitly conclude[ed]” that at least some modern
preconditions on the acquisition of arms, such as background
checks, are consistent with our Nation’s history of firearms
regulation. Maj. Op. at 39. Rather, the Bruen Court instead
concluded that background checks are not subject to that
historical tradition test at all. Unlike the regulations at issue
in Heller and Bruen, regulations which impose background
checks, waiting periods, filing fees, and other administrative
processing requirements do not on their face “deny ordinary
 YUKUTAKE V. LOPEZ 73

citizens their right to public carry.” See Bruen, 597 U.S. at

38 n.9.
To be sure, the Bruen Court and Justice Kavanaugh’s
concurrence both recognized a problem already explained:
there must be some limits on the government’s ability to
regulate acquisition of arms, else the rights to possess and
carry them would be hollow indeed. The Court in footnote
9 explained that “because any permitting scheme can be put
toward abusive ends,” successful challenges to such a
permitting scheme can still obtain if the scheme nonetheless
operates effectively to “deny ordinary citizens their right to
public carry.” Id. Justice Kavanaugh reasoned that even
though regulatory permitting schemes in general “are
constitutionally permissible,” a plaintiff remains free to
bring “an as-applied challenge” if the scheme “does not
operate in that manner in practice.” Id. at 80 (Kavanaugh,
J., concurring) (emphasis added).
Heller and Bruen are thus entirely consistent with the
textual analysis undertaken above. The two cases recognize
and support the principle that the predicate act of acquiring
a firearm should be protected, but only to the extent
necessary to preserve the explicitly granted rights to keep
and bear arms. The Second Amendment explicitly protects
the rights of ordinary citizens to possess and carry firearms
for self-defense, and government restrictions on those
activities ought to be subject to the exacting historical
scrutiny that Heller and Bruen employed. But when it comes
to ancillary4 regulations imposing conditions on the

4
The qualifier term “ancillary” in this context should not be understood
as describing regulations which place “incidental prohibitions on ‘core’
rights.” Maj. Op. at 32. The distinction I have drawn here has no basis
74 YUKUTAKE V. LOPEZ

purchase or acquisition of arms, the Second Amendment

implicitly imposes lesser restrictions on the government.
The government may permissibly regulate the process by
which individuals may acquire arms, so long as it does not
put such regulations “toward abusive ends” such that the
regulations “deny ordinary citizens their right to public
carry.” Bruen, 597 U.S. at 38 n.9. Otherwise, such
regulations are “presumptively lawful.” Heller, 554 U.S. at
626–27 & n.26. The majority opinion therefore
misconstrues these instructions from the Supreme Court,
concluding instead that laws which impose conditions on the
acquisition of arms are subject to the same judicial tests and
scrutiny as those laws that directly restrict their possession
or carry.
II.
A.
Neither does Ninth Circuit precedent side with the
majority. Respectfully, my colleagues misread and
misapply our pre-Bruen decision, Teixeira v. County of
Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc) to find that
acquisition of a firearm is protected by the Second
Amendment to the same extent as keeping or carrying a
firearm. And our more recent—and much more relevant—
decision in B&L Productions v. Newsom, 104 F.4th 108 (9th
Cir. 2024), forecloses the majority’s interpretation of

in the “incidental” burdening of rights. Instead, the question is what the

law actually regulates on its face. When the law’s text does not regulate
possession or carry, it is ancillary, and further inquiry is necessary to
determine whether it “prevent[s] ‘law abiding, responsible citizens’ from
exercising their Second Amendment right[s].” Bruen, 597 U.S. at 38 n.9
(quoting Heller, 554 U.S. at 635).
 YUKUTAKE V. LOPEZ 75

Teixeira. In other words, today’s decision conflicts with the

current law of our Circuit.
Respectfully, the majority’s interpretation of Teixeira is
simply incorrect. Teixeira concerned an Alameda County
zoning ordinance that prohibited retailers from obtaining a
permit to sell firearms in certain areas, such as near
residences, schools, and liquor stores. 873 F.3d at 673. The
en banc panel affirmed the district court’s dismissal of a
Second Amendment challenge to that law because the
plaintiff “failed to state a claim that the ordinance impedes
Alameda County residents from acquiring firearms.” Id. at
678. In so concluding, the court recognized that “the core
Second Amendment right to keep and bear arms for self-
defense ‘wouldn’t mean much’ without the ability to acquire
arms.” Id. at 677 (quoting Ezell v. City of Chicago, 651 F.3d
684, 704 (7th Cir. 2011)).
The majority mischaracterizes that passage from
Teixeira as “holding . . . that the purchase and acquisition of
firearms is conduct that is protected by the plain text of the
Second Amendment.”5 Maj. Op. at 28. To the contrary, the
Texeira opinion explicitly recognized, as explained above,
that there is a difference between the “core right to possess a
firearm for self-defense” and the “ancillary rights necessary
to the realization” of that right. See 873 F.3d at 677

5
Indeed, I was the lone dissenter on the en banc panel in Teixeira, and I
explained at the time that the majority opinion did not give enough
importance to the predicate rights to purchase or sell firearms. See
Teixera, 873 F.3d at 695–96 (Bea, J., dissenting). Obviously,
developments in the law since that case was decided have somewhat
reshaped my views on the topic. But regardless the wisdom of the
Teixeira opinion at the time, it binds us here, and it decidedly did not
hold that the right to acquire a firearm is fully protected by the Second
Amendment’s plain text.
76 YUKUTAKE V. LOPEZ

(emphasis added). The court was in fact quite careful not to

“define the precise scope of any such acquisition right under
the Second Amendment.” Id. at 678. The opinion makes no
mention of such a right to acquire as being covered by the
Second Amendment’s “plain text” (and, as discussed earlier,
that conclusion would be incorrect). The majority thus
conflates Teixeira’s acknowledgment of a relationship
between the possession and acquisition of arms—a premise
not in dispute—with an affirmative holding that the two
activities are protected to the same extent.
Were there any remaining doubt about the correct
reading of Teixeira, our decision in B&L Productions
resolves it contrary to the majority’s interpretation. In
evaluating a challenge to California statutes that banned the
sale of guns on state property, the panel in that case
concluded that “the plain text of the Second Amendment
does not cover [the plaintiff’s] proposed conduct,” so the
statutes were presumptively constitutional. B&L Prods.,
104 F.4th at 117. “The plain text of the Second Amendment
directly protects [only] the right to ‘keep and bear’
firearms. . . [But] we acknowledged [in Teixeira] that unless
the right to acquire firearms receives some Second
Amendment protection, the right to keep and bear firearms
would be meaningless.” Id. at 117–118. The panel also read
Heller and Bruen to “suggest[] that the ancillary right at
issue in these cases—the right to acquire firearms—only
implicates the Second Amendment in limited
circumstances.”6 Id. at 118. As a consequence, the court
6
This language forecloses any argument by the majority that B&L
Productions was limited only to “the specific conduct of ‘contracting for
the sale of firearms and ammunition on state property,’” i.e., acquisition
by “one particular means.” Maj. Op. at 28–29 (emphasis in original)
 YUKUTAKE V. LOPEZ 77

held that the right to acquire firearms is protected “to the

extent necessary” to preserve the right to keep and bear
firearms for lawful purposes and self-defense. Id.
In arriving at its conclusion, the court in B&L
Productions was drawing on the same language from Heller
and Bruen discussed earlier. “[Heller] explicitly framed
‘laws imposing conditions and qualifications on the
commercial sale of arms’ as ‘presumptively lawful
regulatory measures.’” Id. at 118–19 (quoting Heller, 554
U.S. at 626–27 & n.26). To be presumptively lawful, the
court explained, “it necessarily must not implicate the plain
text of the Second Amendment.” 104 F.4th at 119.
“Otherwise, Bruen makes clear that the Constitution would
‘presumptively protect[] that conduct,’ and the government
would bear the burden of identifying a historical tradition of
similar regulation.” Id. “The most reasonable interpretation
of [Heller and Bruen] is that commercial restrictions
presumptively do not implicate the plain text of the Second
Amendment at the first step of the Bruen test.” See id. at 119

(quoting B&L Prods., 104 F.4th at 117). The B&L Productions court
defined the “ancillary right” under consideration as “the right to acquire
firearms.” 104 F.4th at 118. Its conclusion that such a right is protected
only to the extent necessary to preserve the core right to keep and bear
arms is therefore the law of the Ninth Circuit, and this panel is bound to
follow it. See United States v. Johnson, 256 F.3d 895, 914 (9th Cir.
2001) (en banc) (“[W]here a panel confronts an issue germane to the
eventual resolution of the case, and resolves it after reasoned
consideration in a published opinion, that ruling becomes the law of the
circuit.”). Plus, the same logic the majority uses to distinguish B&L
Productions could be applied here: the proposed course of conduct isn’t
“acquisition simpliciter,” Maj. Op. at. 28, it is purchasing a firearm more
than thirty days after a permit is issued. This sort of manipulation of the
“level of generality” at which the right is defined cannot be the basis for
determining how we evaluate different kinds of regulations. Cf. United
States v. Rahimi, 602 U.S. 680, 739–40 (2024) (Barrett, J., concurring).
78 YUKUTAKE V. LOPEZ

(emphasis added). The majority’s holding simply does not

square with this thorough and binding language from B&L
Productions. See Johnson, 256 F.3d at 914.
All this should sound familiar by now. An array of
sources that bind our review—the text of the Constitution,
directives from the Supreme Court, and published Ninth
Circuit opinions—establish the rule the majority ignores
today: a facially neutral government regulation which
imposes conditions on the acquisition of firearms does not
regulate conduct covered by the plain text of the Second
Amendment, and it is therefore presumptively
constitutional.
B.
The majority’s conclusion that regulations on the
acquisition of arms are presumptively protected because
they are covered by the Second Amendment’s plain text also
diverges from our sister Circuits. An examination of three
recent cases from the Fifth and Tenth Circuits helps
illustrate.
In McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024), the
Fifth Circuit considered a challenge to an expansion of
federal background check procedures that required a ten-day
waiting period in which to await the results of a background
check before a gun could be acquired. The court analyzed
Bruen’s footnote 9 as “distinguish[ing] the treatment of
prohibitions on ‘keeping and bearing’—such as the law at
issue in Bruen—and other ancillary firearm regulations such
as background checks preceding sale.” McRorey, 99 F.4th
at 836–37. The court noted that the Second Amendment’s
“plain text covers plaintiffs’ right ‘to keep and bear arms,’”
which “on its face . . . does not include purchase—let alone
without a background check.” Id. at 838. But, once again,
 YUKUTAKE V. LOPEZ 79

the panel recognized that “[t]he right to ‘keep and bear’ can
implicate the right to purchase. That is why [Bruen footnote
9] prohibits shoehorning restrictions on purchase into
functional prohibitions on keeping. But such an implication
is not the same thing as being covered by the plain text of the
amendment.” Id. (emphasis added).
For that reason, the Fifth Circuit concluded that
background checks and the ten-day waiting period were
“presumptively lawful,” and turned “to whether plaintiffs
have shown that these presumptively lawful regulations have
been ‘put toward abusive ends’ or have otherwise rebutted
that presumption.” Id. at 839. The court concluded that the
plaintiffs could not do so, because a ten-day period does not
amount to “a de facto prohibition on possession,” which
would “subject [the regulation] to Bruen’s historical
framework,” because that is when the regulation would
restrict conduct protected by the plain text of the Second
Amendment. See id. at 840.
The Tenth Circuit then reasoned similarly when it
decided Rocky Mountain Gun Owners v. Polis, 121 F.4th 96
(10th Cir. 2024), in which it upheld a Colorado statute that
prohibited the purchase of firearms by persons under the age
of twenty-one. The court undertook a similar analysis as did
the Fifth Circuit to conclude that Supreme Court’s Second
Amendment cases contain a “recognition that certain
‘longstanding’ regulations—including ‘laws imposing
conditions and qualifications on the commercial sale of
arms,’—are ‘presumptively lawful.’” Rocky Mountain, 121
F.4th at 118 (quoting Heller, 554 U.S. at 626–627 & n.26).
The Tenth Circuit interpreted “Bruen’s ‘abusive ends’
limitation to mean that any condition or qualification on the
sale or purchase of firearms, if found to have such abusive
80 YUKUTAKE V. LOPEZ

ends, negates the presumption that the law or regulation is

lawful.” Id. at 122 (quoting Bruen, 597 U.S. at 38 n.9).
Not to be outdone, the Fifth Circuit even more recently
considered a similar federal ban on sales to persons under
the age of twenty-one by federally licensed firearms dealers.
Reese v. Bureau of Alcohol, Tobacco, and Firearms, 127
F.4th 583, 586 (5th Cir. 2025). The court went the other way
from the Tenth Circuit, holding that such a prohibition was
facially unconstitutional, applying Bruen’s historical
framework. Id. at 589–90, 600 At first blush, it might seem
like the Fifth Circuit and Tenth Circuit were no longer on the
same page, but there is less tension here than initially meets
the eye. As the Fifth Circuit pointed out in Reese, the Tenth
Circuit “committed a category error in its analysis that a
complete ban on the most common way . . . to secure a
firearm” does not regulate conduct covered by the Second
Amendment’s plain text. See id. at 590 n.2 (emphasis
added). I agree that the Tenth Circuit erroneously conflated
a total ban on an entire class of people from acquiring a
firearm with an ancillary regulation on acquisition.
Nonetheless, the Tenth Circuit’s Rocky Mountain decision
still recognized the correct principle that regulations on
acquisition ought to be treated differently than those on keep
and carry. The difference is simply one of application: even
if the under-twenty-one restrictions at issue in Rocky
Mountain and Reese were nominally regulations on
“acquisition” in a purely semantic sense, a plaintiff clearly
would overcome any presumption of constitutionality in a
challenge to such a restriction. A total ban on purchase by
an entire class of people obviously “meaningfully
constrains” the ability of members of that class to exercise
their core Second Amendment rights. B&L Prods., 104
F.4th at 119. In other words, its practical effect is to “deny
 YUKUTAKE V. LOPEZ 81

ordinary citizens” under the age of 21 their rights to keep and

bear arms. See Bruen, 597 U.S. at 38 n.9.7
These cases from our sister Circuits show an emerging
(and quite correct, in my view) consensus that ancillary
regulations which impose preconditions on acquisition of
arms ought to be treated differently from those that directly
restrict keep and carry. While there is some inter-Circuit
debate over how that rule should apply to more onerous
wholesale bans on purchase by certain groups, all agree that
the ancillary regulations like the ones before us today are of
a different kind.
III.
Let us now turn to the regulations at issue in this case
and examine them under the correct legal standard. Hawaii
law provides that “No person shall acquire the ownership of
a firearm . . . until the person has first procured from the chief
of police . . . a permit to acquire the ownership of a firearm
as prescribed in this section.” Haw. Rev. Stat. § 134-2(a).
“Permits issued to acquire any pistol or revolver shall be
void unless used within thirty days after the date of issue.”
Id. § 134-2(e). Pistols and revolvers also “require a separate
application and permit for each transaction.” Id. On the

7
The Fifth Circuit’s Reese decision implicitly acknowledged this
important point when it distinguished its holding from McRorey. It
reasoned that, even though the McRorey panel concluded that the plain
text of the Second Amendment doesn’t fully protect acquisition rights,
the McRorey court nonetheless “noted that [Bruen footnote 9] ‘prohibits
shoehorning restrictions on purchase into functional prohibitions on
keeping.’” Reese, 127 F.4th at 590 n.2 (quoting McRorey, 99 F.4th at
838) (emphasis added). The Reese court determined that an “outright
ban” goes far beyond a “functional prohibition” through ancillary
conditions on purchase or acquisition, and so the Bruen test applied. Id.
I quite agree.
82 YUKUTAKE V. LOPEZ

other hand, “Permits issued to acquire any rifle or shotgun

shall entitle the permittee to make subsequent purchases of
rifles or shotguns for a period of one year from the date of
issue without a separate application and permit for each
acquisition.” Id. Hawaii thus has special, and stricter, rules
for handguns than for rifles and shotguns: the rules require
an individual to obtain a permit for each handgun
transaction, and the permit is valid only for thirty days.8
Rifles and shotguns, in contrast, require only a single permit,
valid for subsequent purchases for one year. From this set
of regulations, plaintiffs specifically challenge the thirty-day
expiration period for the handgun permits.
There is one more regulation at issue. Regardless the
type of firearm acquired under the above-described sections,
the firearm must be registered “within five days of
acquisition.” Haw. Rev. Stat. § 134-3(b). In addition, “[i]f
the firearm is acquired from a person who is not a [licensed
dealer] . . . the firearm shall be physically inspected by the
chief of police . . . at the time of registration.” Id. Like the
expiration period for handgun permits, this in-person
inspection requirement has undergone some changes since
the district court originally considered it. As the majority
recounts, in the past this provision applied to all acquisitions
of a firearm, but it now applies only to firearms not acquired
from a state or federally licensed firearms dealer. Maj. Op.
at 12–13. While those changes were originally temporary,
the Hawaii legislature has made them permanent. It is
therefore not the case that this inspection requirement
applies to every purchaser or every firearm. In their
supplemental briefing, Plaintiffs identified three categories
8
As the majority discusses, the expiration period for a handgun permit
was originally ten days, rather than thirty, when this case originally came
to us from district court. Maj. Op. at 12.
 YUKUTAKE V. LOPEZ 83

of firearms to which the in-person inspection requirement

applies: (1) guns which lack serial numbers (so-called “ghost
guns”); (2) guns brought into Hawaii from out of state; and
(3) guns transferred between private persons.9
On their face, neither the thirty-day expiration period for
a handgun permit nor the in-person inspection requirement
regulate conduct covered by the plain text of the Second
Amendment. Such regulations place no restrictions
whatsoever on the permit holder’s ability to keep and
possess the acquired arm in his home or elsewhere, nor does
it preclude him from carrying the weapon in public or
otherwise “bearing” it. Plaintiffs therefore should have the
burden here of establishing—by allegation and proof—that
the regulation “meaningfully constrains the right to keep and
bear” firearms. See B&L Prods., 104 F.4th at 119. In Bruen
terms, they need to prove that, “in practice,” Bruen 597 U.S.
at 80 (Kavanaugh. J., concurring), the regulation is “put
toward abusive ends,” such that it effectively “den[ies]
ordinary citizens their right to public carry.” Bruen, 597
U.S. at 38 n.9.
On this record, Plaintiffs have not met that burden. They
have not adduced any evidence that could lead a factfinder
to conclude that either regulation practically denies them
their right to keep and bear arms. They do not, for example,
proffer proof to establish that the Hawaii’s handgun

9
The majority does not explain why its analysis distinguishing laws
which regulate “acquisition simpliciter” and those “that merely restrict
one particular means of acquiring a firearm,” Maj. Op. at 28–29, does
not alter its conclusion as to the in-person inspection requirement.
Setting aside the thinly veiled nature of the distinction, see n. 5 supra,
the in-person inspection requirement plainly does not regulate
“acquisition simpliciter.” It regulates only a few small categories of
acquisition.
84 YUKUTAKE V. LOPEZ

permitting system operates differently “in practice” than it

does on paper. See Bruen, 597 U.S. at 80 (Kavanaugh, J.,
concurring). Nor do they point to any evidence that
Plaintiffs, in particular, will not be able to acquire, possess,
and carry the handguns they seek as a result of the thirty-day
permit expiration period.10 Plaintiffs also do not explain
why having to meet the in-person inspection requirement
might effectively “deny [Plaintiffs] their right to public
carry.” Id. at 38 n.9.
Some of Plaintiffs’ allegations in their complaint are
illustrative of these defects.11 For example, Plaintiff Todd
Yukutake alleges that on one occasion, he was unable to
register a handgun at a police station because he himself “had
misplaced his permit to acquire.” After he “found” it, “he
returned to [the police station] the next day and retrieved his
firearm.” Obviously, Yukutake does not make out a claim
that the regulations are abusive on account of a one-day

10
The majority characterizes the thirty-day expiration period as
“narrow” and “very short.” Maj. Op. at 33, 45. But the majority does
not explain its metric as to why thirty days is “very short” or “narrow.”
There is no claim or proof, for instance, that citizens in Hawaii are not
ordinarily able to acquire a handgun within thirty days. The majority’s
conclusion is thus ultimately an unexplained and subjective, values-
based assessment. Would sixty days be narrow? Ninety? The better
approach is instead to require evidence, submitted by the plaintiff who
bears the burden of proof, to determine whether the time period is
unfairly “very short” or “narrow,” rather than to rely on “the
philosophical or policy dispositions of the individual judge.” Cf. Rahimi,
602 U.S. at 717 (Kavanaugh, J., concurring).
11
This case is at the summary judgment stage, but I refer to the
allegations in the operative complaint merely to demonstrate the kinds
of facts that the Plaintiffs here alleged, and to explain why such facts,
even had they been proven, would not be sufficient.
 YUKUTAKE V. LOPEZ 85

delay in registering his firearm because he misplaced his

own permit.
One of Yukutake’s allegations admittedly gets a little
closer to establishing that the prior, now revoked, ten-day
expiration period might have been abusive, at least in some
circumstances. Yukutake alleges that he agreed to purchase
a handgun on November 11, 2018, applied for the permit to
acquire it on December 13, 2018, and “picked up” the issued
permit on either December 27 or 28. When he went to the
gun shop to acquire his new handgun, though, “the shop was
closed and the sign on the door stated it would be closed
through January 9, 2019,” which would have been outside
the ten-day expiration period that then applied to his permit.
As a result, Yukutake had to start the permit process all over
again. At the complaint stage, this might make out a claim
that the ten-day period was, at least sometimes,
impermissibly abusive. But even that is debatable on
Yukutake’s specific facts—Yukutake waited over a month
from when he agreed to buy the handgun to apply for his
permit, by which point the business closings of the holiday
season and new year period made it more difficult to execute
each step that the permitting regulations required of him.
Nor does he allege that he was unable to renew his permit
and subsequently acquire, possess, and carry the gun.
Regardless, it is the thirty-day period which is before us
today. That the ten-day period might have been abusive in a
limited and particular circumstance does not come close to
establishing the same as to the thirty-day period in all or even
most circumstances. Yukutake makes no allegations as to
the abusiveness of the in-person inspection requirement
86 YUKUTAKE V. LOPEZ

(and, as discussed, it may no longer apply to his desired

acquisitions).12
The majority responds by asserting that the standard
gleaned from the language of Bruen and Heller requires a
Second Amendment plaintiff to make a “demanding
threshold showing.” Maj. Op. at 32. I do not think this
standard is demanding at all, particularly in an as-applied
challenge. All a plaintiff must do is explain, by reference to
factual allegations and proof, why the regulation he
challenges in practice denies his ability to keep and carry a
gun. If he cannot do so, why should the regulation be held
to violate his rights? And remember, this case presents a
facial challenge, where the plaintiff has to show that the
regulation is unconstitutional as applied to everyone, and in
all or nearly all cases. See Rahimi, 602 U.S. at 693. That is,
of course, “a heavy burden of persuasion,” but it is one we
require in any facial challenge. See Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181, 200 (2008). Outside the
First Amendment context, it is black-letter law that “a
plaintiff can only succeed in a facial challenge by
‘establish[ing] that no set of circumstances exists under
which the Act would be valid.’” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449 (2008)

12
The same analysis applies to Plaintiffs’ allegations that they are
required to “take time off work” to meet Hawaii’s permitting
requirements. The mere fact that they have to take off work to apply for
a permit, register the gun, and in some limited circumstances bring it for
inspection does not establish abusiveness in all or nearly all cases, even
if under some unusual conditions it might prevent someone from
obtaining a gun to keep and carry. This is particularly so given the
expansion of the handgun permitting expiration to thirty, rather than ten,
days (as well as the narrowing of the in-person inspection requirement
to a highly limited set of firearm acquisitions).
 YUKUTAKE V. LOPEZ 87

(quoting United States v. Salerno, 481 U.S. 739, 745

(1987)).
More fundamentally, I take strong issue with the idea
that it is somehow wrong to require a plaintiff to meet an
evidentiary burden to prove his case. The situations in which
we require a plaintiff to prove something before we declare
that a challenged law is unconstitutional are far too
numerous to list. See, e.g., Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507, 524 (2021) (“Under this Court’s precedents, a
plaintiff bears certain burdens to demonstrate an
infringement of his rights under the Free Exercise and Free
Speech Clauses.”); Abbott v. Perez, 585 U.S. 579, 603
(2018) (“Whenever a challenger claims that a state law was
enacted with discriminatory intent, the burden of proof lies
with the challenger, not the State.”); Democratic Party of
Haw. v. Nago, 833 F.3d 1119, 1122 (9th Cir. 2016) (“[T]he
extent of the burden that a primary system imposes on
associational rights is a factual question on which the
plaintiff bears the burden of proof.”); Black Star Farms LLC
v. Oliver, 600 F.3d 1225, 1230 (9th Cir. 2010) (In a Dormant
Commerce Clause challenge, “[t]he party challenging the
statute bears the burden of showing discrimination.”).
Plaintiffs have neither sufficiently alleged nor proven
that either of the challenged regulations prevents “a single
individual from keeping and bearing firearms.” See B&L
Prods., 104 F.4th at 119. For that reason, I would vacate the
district court’s injunction and remand with instructions to
grant summary judgment to Defendants on Plaintiffs’ facial
challenge.13

13
If my view had carried the day, I would certainly have left the door
open for Yukutake or any other Plaintiff to bring an as-applied challenge
88 YUKUTAKE V. LOPEZ

IV.
Now to examine the majority’s contrary holding.
Despite all said here, my colleagues nonetheless conclude
that the permit expiration period “applies generally to all
acquisition of handguns, and it therefore clearly implicates
the plain text of the Second Amendment.” Maj. Op. at 39.
And as to the in-person inspection requirement, the majority
likewise holds that it “regulates and burdens the acquisition
of firearms by ordinary citizens,” and it therefore “regulates
conduct that is covered by the text of the Second
Amendment.” Id. at 46–47. As a consequence of that
conclusion, the majority proceeds to Bruen “step two” for
each provision, requiring Hawaii to “carry its burden to
‘justify its regulation by demonstrating that it is consistent
with the Nation’s historical tradition of firearm regulation.’”
Id. (quoting Bruen, 597 U.S. at 24). I have already attempted
to explain why the premise—that the conditions imposed on
acquisition of an arm regulate conduct covered by the plain
text of the Second Amendment—is incorrect. But the
majority’s errors do not stop there. The majority’s resulting
application of Bruen’s history and tradition standard is
difficult to understand. And the implication of its holding is
that federal courts will become a kind of bureaucratic police,
scrutinizing and invalidating even the most mundane details
of state licensing regimes.
A.
1.
To start, a brief word about the limited disagreement
between my colleagues in the majority and Judge Lee’s

to the regulations, based on concrete facts, either on remand or in a new

lawsuit.
 YUKUTAKE V. LOPEZ 89

concurring opinion. As I understand it, Judge Collins and

Judge Lee agree on the critical threshold question that has
been the focus of this dissent: whether the permitting
regulations at issue here regulate conduct covered by the
plain text of the Second Amendment, such that Bruen’s
historical framework applies. Where my colleagues appear
to part ways is the question of what to make of Bruen’s
footnote 9, and in particular how to determine whether a
regulation from a shall-issue regime, such as Hawaii’s, is put
“toward abusive ends.” Concurring Op. at 56. I cannot share
my colleagues’ mystified view of how the Court came to
write footnote 9. Rather, I think the implications of its
reasoning are readily apparent, particularly when viewed in
light of the rest of Heller’s and Bruen’s analysis and the
textualist principles that guide our review.14
At any rate, seeking to avoid the inquiry into what to
make of footnote 9, Judge Lee would simply require Hawaii
to put forward a historically analogous regulation.
Concurring Op. at 64. Finding none, he concludes that the
regulations are unconstitutional and would apparently stop
there. Id. As explained, I would apply Bruen differently at
the threshold, concluding that the regulations at issue here

14
The majority is misguided in its search for some “unstated reasoning”
by the Supreme Court that background checks must in some way satisfy
the Bruen historical framework. Maj. Op. at 39; see also Concurring Op.
at 63–64. As explained above, what Bruen’s footnote 9 “implicitly
conclud[ed],” Maj. Op. at 39, is that background checks are not subject
to its historical framework at all. It is difficult to believe, to put it mildly,
that the Court would conclude that modern digital background checks
align with some historically analogous regulation without saying
anything at all about what that analogue might be. That is certainly not
what the Court did in Rahimi, where it went into some detail about the
emergence and practice of surety and affray laws as historical support
for its rationale. See Rahimi, 602 U.S. at 693–98.
90 YUKUTAKE V. LOPEZ

do not regulate conduct covered by the plain text of the

Second Amendment, and thus do not require justification by
historical analogue under Bruen. My disagreement with
Judge Lee is therefore limited to the threshold question.
As to how to resolve the “abusiveness” inquiry, my
colleagues are split. Judge Lee’s approach simply requires
the government to point to historical analogues in line with
the analyses in Bruen and Rahimi. Judge Collins instead
takes Bruen’s invitation to fashion a “more nuanced
approach” in cases, like this one, which involve modern
technology and law enforcement practices far afield from
those known to the Framers more than 200 years ago. Maj.
Op. at 38.
The practical implications of both of my colleagues’
views are the same, see infra IV.B, but methodologically
they are quite different. Judge Lee’s view is admittedly
more straightforward—had I agreed with my colleagues that
the regulations before us covered conduct protected by the
plain text of the Second Amendment, I would agree with
Judge Lee’s application of Bruen’s historical test. But I
disagree with Judge Collins’ alternative approach, even
taking the threshold “plain text” error as a given, and will
attempt to explain why.
2.
As I have done here, Judge Collins focuses in large part
on Bruen’s footnote 9, and in particular on the Supreme
Court’s instruction that certain aspects of state permitting
regimes may be unconstitutional if they are “abusive” such
that they “deny ordinary citizens” their Second Amendment
rights. Maj. Op. at 40–41 (quoting Bruen, 597 U.S. at 38
n.9). In his view, footnote 9 was drawing on First
Amendment principles to conclude that permitting systems
 YUKUTAKE V. LOPEZ 91

“must be guided by ‘narrow, objective, and definite

standards.’” Id. That makes some sense, especially in light
of Heller’s and Bruen’s other references to First Amendment
principles. See Maj. Op. at 41 n.12. I generally agree that
First Amendment principles, particularly those principles
“governing the logistical operation of permitting systems,”
Maj. Op. at 41, can be helpful to determining when an
ancillary regulation on acquisition crosses the line to become
an abusive restriction that would in turn be subject to
Bruen’s historical framework.15
Respectfully, Judge Collins takes that modest
proposition too far. He reasons that the usefulness of First
Amendment principles to the Second Amendment analysis
ought to mean that we transpose, mutatis mutandis,16 First
Amendment jurisprudence onto the Second Amendment
entirely. Maj. Op. at 41. But First Amendment principles
can take us only so far in Second Amendment territory. For
starters, the First Amendment protects an entirely different
set of rights. While the focus tends to be on “freedom of
15
Other areas of law are also surely helpful. In the Fifth Amendment
takings context, “courts determine whether a regulatory action is
functionally equivalent to the classic taking[,] using essentially ad hoc,
factual inquiries, designed to allow careful examination and weighing all
the relevant circumstances.” Bridge Aina L‘ea, LLC v. Land Use
Comm’n, 950 F.3d 610, 625 (9th Cir. 2020) (internal quotation and
citation omitted). The doctrine of unconstitutional conditions, the
requirements of procedural due process, and other areas of constitutional
jurisprudence also independently govern how and when government
regulators may allow, deny, revoke, or condition the purchase or
acquisition of firearms as part of its overall regulatory scheme. In other
words, there is no need to force the Second Amendment to do all the
doctrinal work necessary to prevent government encroachment on the
rights of citizens to keep and carry arms.
16
Literally, “things having been changed that have to be changed.” See
https://www.merriam-webster.com/dictionary/mutatis%20mutandis.
92 YUKUTAKE V. LOPEZ

speech,” the First Amendment also protects “freedom . . . of

the press.” U.S. Const. amend. I. Freedom of the press
means freedom from what we usually call prior restraints, or
“previous restraints upon publication.” See 4 W.
Blackstone, Commentaries on the Laws of England, 150–53
(Chicago Ed. 1979). In the First Amendment context, the
whole idea of permits, which are prior restraints on
publication, usually brings with it a high level of
Constitutional suspicion. See, e.g., Berger v. City of Seattle,
569 F.3d 1029, 1037 (9th Cir. 2009) (“A permitting
requirement is a prior restraint on speech and therefore bears
a heavy presumption against its constitutionality.” (internal
quotation and citation omitted)). Judge Collins does not
purport to apply the same level of First Amendment scrutiny
to all kinds of Second Amendment permits. Nor could he,
given the Bruen Court’s conclusion in footnote 9 that firearm
permitting schemes, as a general matter, are presumptively
Constitutional. In the First Amendment context, it’s the
opposite: Speech permitting schemes are, as a general
matter, unconstitutional. See Near v. Minnesota ex rel.
Olson, 283 U.S. 697, 720–721 (1931).
I also join Judge Lee in disagreeing with Judge Collins’s
choice to use means-ends scrutiny as part of his analysis.17
To conclude that the provisions at issue are “abusive” within
17
While I appreciate Judge Lee’s recitation of the recent history of our
court and others misusing means-ends scrutiny to whittle down Second
Amendment rights, I respectfully do not think that those concerns should
carry any water here. The problem with means-ends scrutiny is that its
use to evaluate Second Amendment claims violates the Supreme Court’s
express holding in Bruen. It is also a methodologically poor tool to
adjudicate claims like the ones before us here. Many legal and
jurisprudential principles have a checkered past in the hands of certain
judges and litigants. That descriptive fact, while unfortunate, does not
alter our path to answer the legal questions before us best we can.
 YUKUTAKE V. LOPEZ 93

the meaning of footnote 9, Judge Collins would subject the

regulations to strict scrutiny, the most demanding form of
means-ends scrutiny. Maj. Op. at 43, 53.18 While the use of
means-ends scrutiny is cabined as “highly constrained and
limited,” Maj. Op. at 43 n.12, the better use of means-end
scrutiny in a Second Amendment case is not to use it at all.
The Supreme Court has given us clear instructions to that
effect. See Bruen, 597 U.S. at 19 (“Heller and McDonald do
not support applying means-end scrutiny in the Second
Amendment context.”). Nor does the application of strict
scrutiny comport with Bruen’s description of permissible
regulations. See id. at 38 n.9; id. at 79–80 (Kavanaugh, J.,
concurring). Strict scrutiny—which very few regulations
can satisfy—is plainly a poor method by which to determine
whether a facially neutral regulation is abusive.
Even taken at face value, the “more nuanced approach”
is difficult to follow. As I understand it, Judge Collins thinks
that the application of strict scrutiny is necessary to evaluate
the “how” prong of Bruen’s historical framework.19 Maj.

18
Judge Collins tells us that the version of means-ends scrutiny he
employs here is not actually “strict scrutiny,” but instead something else
“derived from the First Amendment test for time, place, and manner
regulations.” Maj. Op. at 43 n.14. Regardless what one calls it, his test
requires that the regulation be “narrowly tailored to serve a significant
governmental interest.” Id. at 43. Strict scrutiny requires the
government to demonstrate that the challenged regulation is “narrowly
tailored to serve a compelling government interest.” E.g., Williams-
Yulee v. Fla. Bar, 575 U.S. 433, 455 (2015). I do not think the difference
between strict scrutiny and Judge Collins’ test—if there is any—is
material to the disagreement, so for ease of reference I will continue to
refer to his test as strict scrutiny.
19
As the majority explains, the historical framework imposed by Bruen
requires evaluating “at least two metrics: how and why the regulations
94 YUKUTAKE V. LOPEZ

Op. at 38–41. The majority apparently agrees that the “why”

prong of the Bruen analysis is satisfied here because the
regulations fit within an overarching background check
regime, which the Bruen court implicitly concluded were
constitutional because they “promote[] a historically based
‘permissible reason’ for regulating firearms acquisition.”
Maj. Op. at 36 (quoting Rahimi, 602 U.S. at 692). But
because background check regimes and their attendant
regulations depend on significant advancements in
technology and law enforcement practices since the time of
the Framing, Judge Collins has trouble evaluating the “how”
prong by reference to historical analogues, as Judge Lee
would do. Maj. Op. at 38–39. The resulting “‘more nuanced
approach’ to the issue of ‘historical analogies’” is simply to
borrow the strict scrutiny test from First Amendment
jurisprudence to evaluate the “how” prong instead. Id. at 39,
43 (quoting Bruen, 597 U.S. at 27). That is, the regulation
must be narrowly tailored to serve a significant government
interest. Maj. Op. at 43.
Respectfully, that approach does a lot of violence to
Bruen’s rationale. Its somewhat convoluted chain of
reasoning aside, it ignores Bruen’s explicit instruction to
avoid means-ends scrutiny altogether in Second Amendment
cases. Bruen, 597 U.S. at 19. It is also difficult to square
the application of strict scrutiny with footnote 9’s
conclusion, for example, that a state regulation requiring a
permit applicant to “pass a firearms safety course,” would be
burden a law-abiding citizen’s right to armed self-defense.” Bruen, 597
U.S. at 29 (emphasis added); Maj. Op. at 21. The “how” asks the method
and means of the regulation—how it limits or regulates the right. The
“why” asks the justification for the limitation or regulation. The majority
thus applies this two-pronged analysis here, by evaluating both “how”
and “why” Hawaii requires individuals to undertake the regulatory
requirements at issue here.
 YUKUTAKE V. LOPEZ 95

equally permissible as a background check. Bruen, 597 U.S.

at 38 n.9. Neither of my colleagues could possibly think
such a regulation would hold up under either of their
proposed approaches.
More to the point, the resort to means-ends scrutiny is
necessary only because of the initial analytical mistake—the
conclusion that regulations imposing preconditions on
acquisition of arms regulate conduct covered by the plain
text of the Second Amendment and therefore must be subject
to Bruen’s historical framework. The resulting somewhat
contrived analysis could be avoided were we to recognize
the falsity of that premise and hold instead that regulations
like those at issue here are presumptively constitutional,
subject to a plaintiff’s burden of proving otherwise.20
B.
My final point concerns the practical implications of the
majority’s decision today. As a result of its flawed analysis,
the majority concludes that the state must satisfy strict
scrutiny (Judge Collins), or point to a historical analogue
(Judge Lee), to justify every single logistical detail of its
firearm licensing system.21 That is quite a difficult burden,
and one that applies even when the regulation at issue
20
The majority criticizes my approach as “effectively resurrecting the
very framework that Bruen rejected.” Maj. Op. at 31. Not so. The
framework that Bruen rejected was “judicial deference to legislative
interest balancing” in the form of means-ends scrutiny. Bruen, 597 U.S.
at 26. Instead, the correct approach is to ground the analysis in whether
the regulation in question prevents a plaintiff from engaging in a course
of conduct covered by the “plain text of the Second Amendment.” Id. at
32.
21
After all, the majority tells us that its test applies whenever a permitting
regulation “generally governs any acquisition of” a firearm, i.e.,
“acquisition simpliciter.” Maj. Op. at 28 (emphasis in original).
96 YUKUTAKE V. LOPEZ

facially does not preclude any person from keeping or

bearing arms. After today’s decision, a plaintiff who
challenges any aspect of such a regime bears practically no
burden of his own. Once he cites to the majority opinion to
establish that a particular permitting provision “regulates
and burdens the acquisition of firearms by ordinary
citizens,” a criterion scarcely difficult to meet, the majority
places the burden on the state either to satisfy strict scrutiny
or put forth a historical analogue to justify that provision.
Maj. Op. at 46–47. The majority thus turns the Second
Amendment into a kind of regulatory code for firearm
licensing requirements, with federal courts to supervise any
and all details of a state’s permitting regime which impose
conditions generally on all acquisitions of firearms.
Bruen explicitly does not require any of that, for all the
reasons here explained. But what is perhaps most puzzling
is that the majority—both Judges—gleans its extreme test
from footnote 9 itself, which explicitly disclaimed the
invalidation of permitting regulations like the ones at issue
here. Consider for example regulatory requirements that a
permit applicant must “pass a firearms safety course,”
Bruen, 597 U.S. at 38 n. 9, or “undergo training in firearms
handling and in laws requiring the use of force,” id. at 80
(Kavanaugh, J., concurring). These regulations would
plainly fail both of my colleagues’ tests. The Bruen Court
thought such regulations would be presumptively
permissible, but the majority would instead subject them to
strict scrutiny or require them to be justified by historical
analogues, which would invalidate them in every case.
And what about the aspects of Hawaii’s regime that
Plaintiffs don’t challenge in this appeal? For example,
remember that Hawaii requires one handgun permit per
handgun transaction, while permits for rifles and shotguns
 YUKUTAKE V. LOPEZ 97

are good for as many transactions as needed in a year. Haw.

Rev. Stat. § 134-2(e). Registration of any firearm has to be
completed within five days of acquiring it. Id. § 134-3(b).
The registration process also requires individuals to
complete a form with a list of numerous specifications (for
example: manufacturer, caliber or gauge, source of the
weapon, and name of the prior registrant). Id. Plaintiffs do
not argue before us that any of these are unconstitutional.
But were they raised, the majority would subject all of them
to strict and historical scrutiny and strike most if not all as
facially violative of the Second Amendment. As I have
explained, text and precedent alike instruct us not to take
such a sledgehammer to state permitting regimes.
***
Under my colleagues’ view of the Second Amendment,
federal judges are to become the inspectors general of state
firearm regulations. “Laws imposing conditions and
qualifications on the commercial sale of arms” are
transformed from “presumptively lawful” to presumptively
unconstitutional. See Heller, 554 U.S. at 626–27 & n.26.
Rather than “allow[ing] a ‘variety’ of gun regulations,” the
majority turns the Second Amendment into “a regulatory
straightjacket.” Bruen, 597 U.S. at. at 80 (Kavanaugh, J.,
concurring) (quoting Heller, 554 U.S. at 636). That result is
as unfortunate as it is unnecessary.