This 6–5 ruling upholds Hawaii’s handgun acquisition permit deadline and firearm inspection requirement under the Second Amendment, reversing an injunction against the laws. The following are excerpts of the dissents to that ruling.
Circuit Judge R. NELSON: (pdf pages 22–60) “Other constitutional provisions illustrate the flaw. The freedom of the press would offer little protection if the government could forbid publishers from obtaining paper, ink, cameras, computers, or distribution services. (‘As paper or a computer is a necessary predicate to the right to print,…acquiring, purchasing, and possessing firearms is a necessary predicate to keeping and bearing them.’) The free exercise of religion would be hollow if the government could prohibit congregations from acquiring Bibles or leasing church buildings while claiming that worship itself remained untouched. (‘Common sense dictates that the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text.’)”
“The Second Amendment’s text says, ‘shall not be infringed,’ not ‘shall not be denied.’ At the Founding, to infringe included to violate, destroy, impede, or hinder; to hinder included obstructing for a time or interposing obstacles….’Shall not be infring[ed]’ forbids destruction of the right, such as a ban on all gun ownership. But it also forbids lesser violations that hinder a person’s ability to keep and bear arms.”
Circuit Judge L. VANDYKE: (pdf pages 63–84) “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. Along the way, the Court and its Justices have repeatedly instructed lower courts that the Second Amendment really is a part of our Constitution, that it really means what it says, and that it really prohibits the government from abridging the people’s right to own, obtain, carry, and make use of ‘all instruments that constitute bearable arms.’…But in spite of the Court’s obvious efforts to instruct lower courts to enforce the Second Amendment, the Ninth Circuit has done precisely the opposite.”
“The Supreme Court’s efforts to enforce the Second Amendment, while laudable, have failed—in this circuit, at least. Elsewhere, I’ve floated some ideas for practical tactics the Court might use to get our court to start faithfully applying the Second Amendment [see Knife Rights below].”
“The obvious upshot of our court’s obstinate refusal to sustain any Second Amendment challenge is that governments within this circuit can implement pretty much any firearm regulation they want and get away with it.”
“…to give effect to the Second Amendment and to prevent our court from perpetually shifting the goalposts toward my colleagues’ preferred outcomes, the Supreme Court needs to start enforcing more strict rules to supplement the Bruen framework. Some firearm regulations ought to be completely off the table.”
“Half a decade ago, I proposed two ‘bright-line’ rules that could resolve a sizable chunk of our Second Amendment cases and make it much harder for recalcitrant judges to ignore the law….First, if a ‘firearm product or usage that a state seeks to ban is currently prevalent throughout our nation,’ then it should simply be unconstitutional to ban it. Second, if a state has a firearm regulation that ‘most other states don’t’ have, then the regulation should be unconstitutional. I continue to believe that incorporating these bright-line rules into our Second Amendment jurisprudence would accord with Supreme Court precedent, leave minimal room for judicial manipulation, and (perhaps something that my colleagues could get behind, even if they dislike the substance of the rules) make our jobs as judges easier.”
“The Supreme Court needs to constrain the discretion of the lower courts if it wants to induce judges—who often don’t personally care much for or know much about guns—to protect the Second Amendment. The Court need not overrule any of its prior doctrine, but it should enforce the common-use and outlier principles as stricter Second Amendment rules. Whenever the government ‘restricts’ the keeping or bearing of arms, the first question should be whether the regulation passes muster under the common-use and outlier rules. If not, then the regulation should be invalidated. If it does pass muster, then the analysis should proceed through the usual Bruen framework, and the regulation should be upheld only if it is ‘consistent with this Nation’s historical tradition of firearm regulation.’ In other words, the common-use and outlier rules should function as ‘unsafe harbors’ such that failing to satisfy either test renders a regulation per se unconstitutional.”
“…when states like Hawaii enact novel rules that have few or no counterparts in other jurisdictions, they subject the Second Amendment right to ‘a widely varying patchwork quilt of state and local restrictions and bans that would be an embarrassment for any other constitutional right.’”
“States that enact firearm regulations that other states have felt no need to enact are usually just trying to ‘us[e] their “laboratory of democracy” to conduct ongoing experiments on how to subject a fundamental right to death by a thousand cuts.’”
“Frankly, our court’s scorched-earth approach to the Second Amendment is getting exhausting. I haven’t even been on the bench for that long, and I’ve lost count of the number of dissents that I’ve written in cases like this one, which is just another verse of the same boring song. I highly suspect that, before too long, the name of this case will have a red flag next to it on Westlaw, just like so many of our court’s other Second Amendment cases do. But hopefully next time, when the Supreme Court plants that flag, it will do so with a little more bite than it has before. Until then, I will assiduously but wearily dissent.” *
The following legal decisions concern the law of self-defense. Some of the rulings are final and others are not. They’re presented here, along with salient excerpts, to be read for their excellent judicial logic about the absolute civil right of armed self-defense as established by the framers of the US Constitution.
