On September 22, 2026, the en banc Ninth Circuit ruled 6–5 in Yukutake v. Lopez, No. 21-16756, to reverse a permanent injunction and revive two Hawaii statutes governing how a citizen may acquire a handgun after the state has already approved him to carry one. A federal district judge and a three-judge panel had both already held these laws unconstitutional. The en banc majority, in an opinion by Judge John B. Owens, undid both. I have read that opinion and the three dissents answering it, and the split tells you most of what you need to know about how thin the majority’s reasoning is.
A Right Restricted After the State Already Said Yes
Hawaii’s law does not touch who may carry a gun. It touches what happens after a citizen has already cleared that bar. Under Haw. Rev. Stat. § 134-2(e), a person approved to buy a handgun receives a permit to purchase — and if he does not complete the purchase within 30 days, the permit expires and he must start over. Under § 134-3(c), once he has acquired the gun, he has five days to bring it to a police station for physical inspection. Both requirements apply only to people who have already passed a background check, fingerprinting, and firearms training and been approved for a concealed-carry permit. Whatever interest the state has in screening gun owners has already been satisfied by the time either provision kicks in. Judge J. Michael Seabright of the District of Hawaii found both rules unconstitutional, and so did a divided three-judge panel in 2025. The en banc court took the case anyway and reversed.
Turning a Footnote Into a Substitute for History
Bruen requires the government to prove a challenged gun law is consistent with the nation’s historical tradition of firearm regulation. The en banc majority skipped that work. Instead, it leaned on footnote 9 of NYSRPA v. Bruen, 597 U.S. 1 (2022), which observes that the 43 states’ shall-issue licensing regimes are “generally” constitutional because they screen applicants for law-abidingness rather than demand proof of an atypical need to carry. The majority treated that observation as a freestanding safe harbor, concluding Hawaii’s rules impose only “modest, procedural burdens” that “require compliance with a reasonable deadline and … a brief administrative visit to verify basic information.” The opinion expressly declines to decide whether this is even a step-one or step-two Bruen question. A footnote about licensing eligibility has been repurposed to excuse restrictions that arise only after eligibility was already established.
Three Dissents, Five Judges
Judge Ryan D. Nelson’s dissent — joined in full by Judges Bress and VanDyke, and joined by Judges Bade and Forrest as to all but one part — makes the point precisely:
“The majority incorrectly holds that footnote 9 of New York State Rifle & Pistol Ass’n v. Bruen … creates a ‘carve-out’ or ‘safe harbor’ from Second Amendment scrutiny … It only addresses ‘public carry’ regulations not at issue here. And it does not shift to the citizen the burden to prove that a law governing protected conduct has been ‘put toward abusive ends.’”
Hawaii’s provisions, Nelson writes, operate “after the applicant has completed a background check, firearms training course, and myriad other requirements—i.e., after he has proven himself a ‘law-abiding, responsible citizen’—and has been issued a permit to purchase (not carry) a handgun.”
Judge Lawrence VanDyke filed his own solo dissent, and Judge Danielle J. Forrest filed a third. Five judges dissented across three opinions — a genuine fracture, not a narrow disagreement from two outliers. VanDyke frames the Ninth Circuit’s trajectory against the Supreme Court’s starkly:
“By my count, the Supreme Court has decided seven Second Amendment cases since 2008. Each of those cases, save one, was decided the same way: the Court invalidated the government’s challenged firearm regulation. … [I]n this circuit, the Second Amendment safeguards less liberty now than it did in the wake of Heller.”
The lone exception is United States v. Rahimi, 602 U.S. 680 (2024), which upheld a federal disarmament statute — everything else, from Heller forward, has gone the citizen’s way.
An Outlier With No History — and a Different Case Named Lopez
There is no founding-era analogue for a purchase permit that expires in 30 days, nor for a mandatory police inspection of a lawfully acquired gun — not in 1791, and not as a majority practice among the states today. Hawaii is an outlier, and the Supreme Court has made outlier status itself a reason to strike a law down. It did exactly that this year in Wolford v. Lopez, 146 S. Ct. 2032 (2026), where Justice Alito wrote that “the Second Amendment cannot give way to ‘the spirit of Aloha’ in Hawaii … any more than it can yield to the spirit of the Big Apple or the Windy City.” Wolford is worth naming precisely because it is a different case — same Hawaii Attorney General as defendant, but a separate statute about carrying on private property, decided months before Yukutake reached the en banc court. The two should not be conflated, though the en banc majority itself invoked Wolford in its opinion.
No cert petition has been filed in Yukutake as of this writing. I expect one will follow, given this split and the Court’s now-consistent record of correcting the Ninth Circuit on this exact subject — that remains a forecast, not a docket entry. But a 6–5 vote resting on a misread footnote is not a stable foundation, and the Justices who wrote Wolford are unlikely to look past it for long.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.