During Bruen, the Supreme Court implied that objective firearms licensing regimes are broadly constitutional—but only up to a point. A Ninth Circuit panel has new ideas for determining what that point is.
Last week, a three-judge panel for the appellate court struck down Hawaii’s requirement that a person buy a handgun within 30 days of obtaining a state-mandated purchase permit. It found that such a short permit validity window was “impermissibly ‘abusive.'”
“Accordingly, we affirm the district court’s judgment that this aspect of § 134-2(e) is unconstitutional under the Second Amendment,” Judge Daniel Collins wrote in Yukutake v. Lopez.
That language, deriding Hawaii’s purchase permitting process as “abusive,” is directly informed by what the Supreme Court of the United States (SCOTUS) has written. While SCOTUS invalidated subjective “may-issue” permitting regimes like the kind formerly in effect in New York, it also gave preliminary approval to a different system of permitting in a much-discussed footnote of the opinion.
“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],'” Justice Clarence Thomas wrote in Bruen. “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.”
While Justice Brett Kavanaugh echoed that basic point in a concurrence, nobody expounded on how exactly those systems fit under Bruen‘s history-based test. Nevertheless, some lower courts have used that argument to broadly approve background checks and permitting requirements for both the carrying and sale of firearms.
“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 the acquisition of firearms satisfies both the ‘how’ and ‘why’ aspects of Bruen’s historically based test,” Collins wrote.
However, while the High Court didn’t fully explain how permitting systems pass constitutional muster, it did hint at a few reasons how those systems could still be subject to legal challenges.
“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,” Thomas wrote.
This questioning of systems “put toward abusive ends” with wait times, fees, or other impediments has inspired gun-rights advocates to challenge aspects of the “Bruen-response” laws passed in former may-issue states and localities. Yet neither SCOTUS nor many appellate judges have established a concrete standard for when a gun permitting system has crossed the line of being “abusive.”
Judge Collins attempted to change that in Yukutake.
Collins drew on long-established First Amendment principles for his test. He said the Supreme Court invoked those same principles during Bruen when it used language from 1969’s Shuttlesworth case on permitting for public demonstrations, emphasizing that permit issuance must be guided by “narrow, objective, and definite standards.”
“Absent further guidance from the Court, this same approach is appropriate here,” Collins wrote. “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.”
He described how, in multiple cases, SCOTUS has previously held that advance permitting requirements are valid for a limited range of First Amendment conduct—like marches or rallies in public spaces. However, it has found those requirements must meet explicit constitutional requirements guarding against “undue delays,” licensing discretion, and other burdens.
Transferring those holdings into the Second Amendment context, Collins held that “a firearms permitting scheme must not ‘delegate overly broad licensing discretion to a government official.'”
“The applicable time frames governing the system must be ‘specified’ in advance, avoid unreasonable and undue delays, and provide for prompt judicial review,” he added. “The practical logistical burdens on firearms possession that arise from the operation of the background-check-based 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.”
As a result, Collins functionally revivified a form of means-end scrutiny in Second Amendment jurisprudence, but one that sets a high bar for government success. It’s one that, in the Yukutake case, the state of Hawaii failed to clear.
“The State has not carried this burden to justify its very short temporal limit on firearms-acquisition permits,” Collins concluded. “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.”
It remains to be seen how influential Collins’ First Amendment-inspired test will be. It will likely be of interest to gun-rights advocates suing various governments in states under the Ninth Circuit’s jurisdiction, like California, which features numerous cities accused of charging exorbitant fees and imposing extended delays for issuing permits.
But it may not catch on if other judges react to it like Collins’ fellow conservative co-panelists. Judge Kenneth Lee concurred in the judgment against Hawaii’s restrictions but also wrote separately to take issue with Collins’ “abusiveness” test. He argued that SCOTUS would disapprove and that abusiveness should be determined by the same history-based test that Bruen requires.
“Admittedly, I am unsure what to make of footnote 9,” Lee wrote. “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.”
He also noted the practical concerns surrounding lower courts applying interest-balancing tests that led SCOTUS to do away with it in the first place.
“I am wary of even a limited means-end inquiry because our court has a history and tradition of whittling down the Second Amendment through means-end analysis,” he wrote.
Furthermore, the Ninth Circuit’s predilection for overturning pro-Second Amendment panel decisions en banc hangs like the Sword of Damocles over the novel test. As it has more than 50 times, the court could again decide to review the case in full following an inevitable appeal from Hawaii. At that point, the Collins test will probably be vacated and replaced by a new opinion.
Even if Collins’ “abusive ends” test doesn’t catch on, it still represents one of the first significant attempts to flesh out a functional standard for reviewing challenges to aspects of otherwise valid firearm-permitting schemes. The issue won’t be going away any time soon.
