The Ninth Circuit Court of Appeals isn’t quite as hostile to the Second Amendment as its been in years past, but that’s not really saying much. We’ve seen a number of good decisions come out of the appellate court recently, including last week’s decision in Rhode v. Bonta upholding a lower court decision that found California’s background check laws for ammunition purchases unconstitutional. The problem is that even when a three-judge panel finds in favor of those challenging gun control laws, the appellate court often decides to take those cases en banc, giving a broader panel of judges the opportunity to override any findings favorable to Second Amendment supporters.
That’s what happened this week with a case out of Hawaii called Yukutake v. Lopez, which challenges a couple of gun laws that are unique to the state. Would-be handgun buyers in the state must first obtain a permit-to-purchase (which itself is an outlier among the 50 states), but they only have a 30-day window to make that purchase before their permit expires. Once that purchase has taken place, the gun owner only has five days to take that gun to their local police department gun owner for an inspection.
Both of those provisions were modified after the lawsuit was filed, but the district court judge ruled that Hawaii’s argument that the litigation had been mooted as a result was without merit. The judge also eventually found in favor of the plaintiffs, holding that both of these requirements have no basis in the historical tradition of gun ownership or the plain text of the Second Amendment.
Hawaii appealed that decision, but earlier this year a three-judge panel on the Ninth Circuit affirmed the lower court decision. In a 2-1 decisiont the panel concluded that the “temporal limitation” on the permit-to-purchase was “abusive” to the right to keep and bear arms, while the in-person inspection of newly purchased pistols “could not be justified as merely a proper ancillary logistical measure in support” of Hawaii’s gun registration requirement.
Hawaii Attorney General Anne Lopez asked the Ninth Circuit to take the case en banc instead of appealing directly to the Supreme Court, and this week the Ninth Circuit granted her request. That means that the panel’s decision has been vacated, and the state of Hawaii is allowed to continue enforcing these ridiculous restrictions at least until the en banc panel has issued its decision.
That could be awhile. Oral arguments in front of the en banc panel won’t take place until January of next year, and it will likely be months before an en banc opinion is issued, which means that Hawaii can keep screwing around with the ability to lawfully purchase and possess a firearm by requiring buyers to jump through a series of asinine hoops. It also means that the gun owners and organizations challenging these laws are now on the hook for thousands of dollars in additional costs.
Thanks Ninth Circuit. It will cost us $2200 for printing additional copies of the briefs because yall can’t let a panel win stand.
— Stephen (@Stambo2A) Jul 29, 2025
I will no longer take any contingency case in the 9th circuit. It’s not worth years of my life litigating, paying expenses, winning, and then getting screwed over by a court with a perfect anti-2A record. @AAGDhillon @HarmeetKDhillon
— Stephen (@Stambo2A) Jul 29, 2025
I don’t think there’s much the DOJ Civil Rights Division can do to rein in the Ninth Circuit’s ongoing attempts to invalidate any decision from lower courts or three-judge panels that respects our right to keep and bear arms, but the agency can support the Yukutake plaintiffs by filing an amicus brief in support of their position that the laws infringe on our Second Amendment rights.
DOJ could also launch an investigation of its own into Hawaii’s abusive practices, which subject gun owners to a host of bureaucratic regulations that fly in the face of the historic tradition of gun ownership. The only way these laws can be upheld is by declaring (as the dissenting judge wrote) that the Second Amendment doesn’t protect the right to acquire a firearm at all.
As the majority pointed out, that’s an absurd conclusion.
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.
Stephen Stamboulieh, who along with Alan Beck are representing the plaintiffs in Yukutake, is right to be ticked off by the Ninth Circuit’s decision to take this case en banc.
The appellate has previously recognized that the Second Amendment encompasses the right to acquire a firearm, so the dissent conflicts with what the appellate court has previously stated. I don’t know that even an en banc review is going to be all that helpful to Hawaii here, but it will prevent this case from being taken up by the Supreme Court for a couple of years, and that may be enough for gun control advocates on the bench hoping to see a change in the Court’s makeup between now and then.
Editor’s Note: Radical leftist judges are doing everything they can to hamstring our Second Amendment rights.
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