How Ninth Circuit Missed the Point of Bruen Decision

The Bruen decision shut down a lot of shenanigans that various anti-gun states have tried to play. It shut down a lot of the same shenanigans that various federal judges have tried, too.

Unfortunately, there’s always room for more nonsense if you’re not very careful.

Bruen is a great decision, but as we’ve seen since the ruling came down, judges and lawmakers are not rational animals. They’re rationalizing creatures, and a prime example of that comes to us from Jonathan Turley, who points out how the Ninth Circuit has intentionally missed the point of a key part of the Bruen decision.

In Yukutake v. Lopez, it is the inspection requirement that most stands out for me. Unable to ban guns, Hawaii and other blue states have histories of harassing or impeding these rights. The requirement of an inspection appears gratuitous and ahistorical under controlling precedent.

The Ninth Circuit ruled in this en banc decision that “the provisions impose only modest, procedural burdens, and do not materially impede Plaintiffs from acquiring firearms.” The inspection requirement does not seem to be either “modest” or a traditional requirement for gun ownership.

The majority is notably relying on a footnote from the Bruen decision that seems less than sufficient as the foundation for such a measure. More importantly, it would invite a series of harassing, impeding measures for gun owners.

Footnote 9 states that “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].’”

Judge Ryan D. Nelson flags the reliance on this footnote in his dissent:

“Footnote 9 did not create a gaping Second Amendment exemption for states to exploit with new creative restrictions that would otherwise fail Bruen’s test. The majority—like most lower courts—fails to grasp (or even acknowledge) these differences. Never has a single footnote in a Supreme Court opinion been so misread by so many lower courts to deny so many Americans their constitutional rights. The statements in footnote 9 are not the genesis of a different constitutional framework; they show merely how the framework the Court has established might be applied in particular circumstances.”

As a threshold matter, this footnote dealt with issuing carry licenses, not simply ownership, for handguns. The Ninth Circuit uses the footnote to suggest that any limitation short of the actual prevention of ownership is permissible:

Go and read the rest for yourself, but if you have a blood pressure problem, take your meds first. You’ll need it.

Basically, though, it’s as Turley notes. The majority decided that so long as it doesn’t ban gun ownership, the ticky little nitpicking permitting that creates a massive burden to gun ownership is perfectly acceptable.

And that’s not surprising.

Personally, I figure that so long as a single person can own a single-shot gun, the anti-gunners will insist that the Second Amendment is being fully upheld, even though “shall not be infringed” is most definitely not part of the equation in their minds.

Footnote 9 is pretty straightforward in its intent. It is simply to say that shall-issue carry license schemes are fine. 

The Ninth Circuit has decided that was carte blanche permission to allow anything so long as it doesn’t explicitly prevent gun ownership. The problem is that the barriers are ridiculous. It’s not just a permit-to-purchase scheme; the state has to inspect the gun, and you have just 30 days after getting the permit to actually buy your firearm, which, after all the rigamarole in getting the permit, might be easier said than done for many people.

And you can’t tell me that, at that point in their careers, they are unable to understand what the Court intended with that footnote. They simply twisted it to mean what they wanted it to mean.

That’s a good way to get a Clarence Thomas smackdown, which Hawaii deserves yet again.

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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