Second Amendment Roundup: Bruen’s Footnote 9 Not a Carve-Out from Text and History

Having found the carrying of a handgun in public to be encompassed textually in the right to “bear arms,” the Supreme Court in Bruen added that the historical record compiled by New York failed to demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense or of requiring citizens to demonstrate a special need for self-defense.  It then inserted footnote 9 to that statement, explaining 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].”  However, the Court warned that “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.”

In order to uphold restrictions not based on text or historical tradition, some lower courts have latched onto, and purported to find an expansive meaning in, footnote 9.  The latest example is the Ninth Circuit’s September 22 en banc decision in Yukutake v. Lopez, which upheld Hawaii’s requirements that handgun purchasers obtain a handgun-acquisition permit that is void unless the purchase is completed in 30 days, and the handgun is presented for physical inspection within five days at the police station.  The majority’s reliance on Bruen footnote 9 prompted a lengthy disquisition on the subject by Judge Ryan Nelson, jointed by Judges Daniel Bress, Lawrence VanDyke, Bridget Bade, and Danielle Forrest.

The following are some of the leading comments on footnote 9 in Judge Nelson’s dissent.  There are actually more references to footnote 9 interspersed throughout his opinion.

But the majority incorrectly holds that footnote 9 of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1…, creates a “carve-out” or “safe harbor” from Second Amendment scrutiny, and is thus analytically distinct from Bruen’s framework. Maj. Op. ––––, ––––. Footnote 9 does not say that all objective regulations placed within a “shall-issue” licensing regime are “presumptively constitutional.” Id. at ––––. It only addresses “public carry” regulations not at issue here. Bruen, 597 U.S. at 38 n.9…. And it does not shift to the citizen the burden to prove that a law governing protected conduct has been “put toward abusive ends.” Maj. Op. –––– (cleaned up). That interpretation violates Bruen’s clear command that it is the government’s burden to show that restrictions on the right to keep and bear arms are “consistent with the Nation’s historical tradition.” 597 U.S. at 24….

Instead, footnote 9 described non-abusive regulations to ensure that only “law-abiding, responsible citizens” were carrying handguns outside the home, preserved challenges when a permitting system denies citizens their right to carry, and concerned only longstanding licensing regimes. Id. at 38 n.9… (citation omitted).

Hawaii’s challenged provisions are something else. Hawaii requires purchasers of handguns to obtain a handgun-acquisition permit that is void unless the permittee completes the purchase within 30 days, and it requires persons acquiring certain firearms to bring them to a police station for physical inspection within five days of acquisition. Haw. Rev. Stat. §§ 134-2(e), 134-3(c). Neither regulation has anything to do with determining whether applicants are “‘law-abiding, responsible citizens'” eligible for licenses to “exercis[e] their Second Amendment right to public carry.” Bruen, 597 U.S. at 38 n.9 … (quoting District of Columbia v. Heller, 554 U.S. 570, 635 … (2008)). Indeed, the challenged laws 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. And neither regulation was “longstanding” in 2022 when Bruen issued.

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.

This case is all the worse since the challenged laws appear to be part of Hawaii’s consistent and not-so-subtle attempts to end run around the Second Amendment, which suggests that these laws are abusive under footnote 9…. Hawaii has only grown more intransigent in its “blatant defiance” of the Supreme Court’s clear commands on the Second Amendment. Wilson v. Hawaii, ––– U.S. ––––, 145 S. Ct. 18, 21 … (2024) (Statement of Thomas, J., respecting the denial of certiorari) (citation omitted); cf. Granillo v. State, 158 Hawai’i 385, 593 P.3d 1, 28 (2026) (accusing the U.S. Supreme Court of “[m]aking the country more dangerous with a Second Amendment unmoored from text or history and unrecognizable to the framers who wrote it”); id. (Bruen was “deadly jurisprudence,” and Wolford “show[ed] disdain for Hawai’i’s constitutional traditions.”). But Hawaii’s “[m]erely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.” Wolford, 146 S. Ct. at 2050.

A correct application of Bruen to Hawaii’s regulations makes this case straightforward. First, the Second Amendment’s plain text covers the acquisition of arms. A person ordinarily cannot “keep” an arm without first acquiring it, and the law has long recognized that authorization of an act includes authorization of necessary predicate acts. Luis v. United States, 578 U.S. 5, 26 … (2016) (Thomas, J., concurring in the judgment). Hawaii’s statewide restrictions govern the process by which ordinary citizens take possession of handguns; possession is the core conduct protected by the “right of the people to keep … Arms.” U.S. Const. amend. II (emphasis added). Second, Hawaii has not identified “a well-established and representative historical analogue” for either its short permit-use period or its acquisition-linked inspection mandate. Bruen, 597 U.S. at 30…. Because Hawaii has not carried the burden Bruen places on the government, we should have affirmed the district court’s judgment. I respectfully dissent.

The majority improperly side-steps the governing rule. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at ––––. The government must then “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. The order matters. So does the allocation of burdens. The Second Amendment’s text determines whether the presumption of protection attaches; history and tradition determine whether the government has rebutted it. Id. at ––––, ––––, ––––. Courts may not insert a freestanding means-end inquiry before or between those questions. Id. at ––––. It strains credulity to interpret footnote 9 as creating a separate “carve-out” or “safe harbor” from Bruen’s overarching approach. Maj. Op. ––––, ––––.

Bruen guides our analysis. And we err when we cast aside Bruen’s holdings for a few clarifying statements in one of its thirty-two footnotes. Footnote 9 does not address—let alone control—this case.

Situated in the Supreme Court’s step two discussion, footnote 9 provides in full: [Deleted here.]

At the outset, footnote 9 addresses public-carry licensing, not every objective regulation touching firearms. The circuit courts that have read it as the latter have overread and misapplied the Supreme Court’s guidance…. In other words, the inferior courts are missing Bruen’s forest for a footnote’s trees.

The term “shall-issue” traditionally referred only to concealed-carry permitting schemes….

Likewise, “shall-issue” was used in Bruen to distinguish objective public-carry licensing regimes from New York’s discretionary carry regime….

Lower courts have misunderstood footnote 9 and expanded the term “shall-issue” to encompass all objective regulations on the purchase, possession, carry, or transfer of firearms…. But the footnote expressly and repeatedly refers to “public carry,” “bearing arms,” and licensing officials’ discretion over concealed-carry permit applications. Bruen, 597 U.S. at 38 n.9…. Those features are not present in the laws Plaintiffs challenge.

This case concerns acquisition of handguns for simple possession, including possession in the home, “where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628–29…. Plaintiffs do not challenge any aspect of Hawaii’s highly restrictive public-carry laws or permitting scheme. See Wolford, 146 S. Ct. at 2046 & n.9 (Hawaii has “a tight web of laws that severely restricts the carrying of firearms for self-defense.”). Nor do Plaintiffs challenge Hawaii’s myriad requirements (i.e., fingerprinting, mental-health disclosures, training courses, fees, and background checks) simply to purchase a firearm in the first place.

Plaintiffs’ claims target two additional rules: what happens if an already qualified permittee does not complete a handgun purchase within 30 days, and what must occur after certain firearms have been acquired. Haw. Rev. Stat. §§ 134-2(e), 134-3(c). Those rules are not carry-license criteria. They have nothing to do with “guiding licensing officials” in the issuance of public-carry permits via “narrow, objective, and definite standards.” Bruen, 597 U.S. at 38 n.9 … (cleaned up). Therefore, Hawaii’s regulations—which apply after an applicant has obtained a permit merely to possess a handgun in the home—are wholly outside the ambit of footnote 9.

The distinction is not formalism. Public carry and home possession have different historical traditions. See id. at 45–70 …. For example, surety laws and laws banning carrying weapons while intoxicated may illuminate regulation of public carry, but they would not automatically justify a restriction on possessing a handgun in the home…. Redefining “shall-issue” as a universal catch-all for all objective firearms licensing provisions—rather than a specific type of public-carry-permit issuance regime—collapses those distinctions. Footnote 9’s discussion of “shall-issue” public-carry regimes does not speak to this case.