Neverending battle with HI, supplemental brief filed in 9th over permitting suit

The case formerly known as Todd Yukutake, et al v. Clare Connors, et al, was a victory for residents of the Aloha State when a favorable decision for Yukautake et.al. was delivered August of 2021 from the United States District Court For the District of Hawaii. We’ve been following the progress of this case, as well as many others, as earlier this year I reported that Hawaii was doubling down and appealing the decision. The conflict was/is that of Hawaii’s unconstitutional permitting laws that required registrants to bring their firearm for inspection of and registration by their local issuing authority, and said permits having only a life expectancy of 10 days. Major portions of that were struck down and the ruling class in Hawaii were not happy.

How the state wishes to squirm out of the box they’ve painted themselves into is going to be fun to watch. As I stated several months ago pre NYSRPA v. Bruen, perhaps like the Great Bambino calling his shot, I noted:

While Shikada was on the topic of ignoring case law, we did not get any details about how Hawaii and multiple jurisdictions through the Union ignore Heller on the regular, picking what they want from the opinion. We can only speculate who and which bad actors are going to stick their head in the sand when NYSRPA delivers a headshot to the anti-freedom caucus’s arguments.

On September 16th a supplemental brief was filed in the 9th Circuit court of Appeals by Yukutake et.al.’s attorneys, Alan Beck and Stephen Stamboulieh. The brief completely eviscerates any argument that Shikada, the present Attorney General of Hawaii might have. The brief summons the wisdom of NYSRPA v. Bruen within.

New  York  State  Rifle  &  Pistol  Ass’n  v.  Bruen,  142  S.  Ct.  2111  (2022) has strengthened  Plaintiffs Claims  and  made  it  even  clearer  that  the  challenged  laws  are unconstitutional. In Bruen,  the  Supreme  Court  streamlined  the  existing  process  for evaluating  Second  Amendment  claims.  It  removed  the  second  step  of  the  two-step analysis  that  this and other  courts previously used  to  evaluate  Second  Amendment claims  and provided guidance  on  how  to  evaluate  Second  Amendment  claims  going forward. Bruen, 142 S. Ct. at2127.  Even under the prior framework employed by this Circuit, the trial court correctly found that both laws at issue in this litigation violated the Second Amendment Despite applying intermediate scrutiny.  This is because Hawaii failed to produce any evidence to justify its laws. “Needless to say, a State that offers ‘no  evidence  or  anecdotes  in  support  of  [a]  restrictions should  not  prevail  under intermediate scrutiny. (Silvester v. Becerra,138 S. Ct. 945, 949 (2018) (quoting Florida Bar v.  Went  For  It,  Inc.,  515  U.  S.  618,  628,  115  S.  Ct.  2371,  132  L.  Ed.  2d  541  (1995))”Case: 21-16756, 09/16/2022, ID: 12542590, DktEntry: 50, Page 7 of 36 2(Thomas, J., dissenting from denial of certiorari).Post-Bruen, that result is now glaringly obvious. Both H.R.S. §134-2 and H.R.S. §134-3 violate the Second Amendment was held by the trial court.

We can only hope that Beck and Stamboulieh’s arguments will hold up in the 9th Circuit, as they did in the lower court. Even prior to NYSRPA v. Bruen, the matter was settled as being unconstitutional with some relief being delivered to the plaintiffs and Hawaii residents at large. Although, we are talking about the 9th Circuit, the one that relies on public sentiment revolving around progressive ideals, rather than originalism or whether or not something is inherently constitutional or not.

This controversy is ripe for continued challenge. To impose such restrictions on those who wish to simply purchase and keep an arm, nevermind bear, goes beyond the scope of what’s reasonable. Luckily, several organizations have stepped up in filing friend of the court briefs on this case.

The Second Amendment Foundation (SAF) and Madison Society filed a brief back in May. In the introduction to their brief, they very entertainingly get to the core of the issue.

This is a case where a state-actor purports to comply with the Constitution’s text and Supreme Court caselaw, while intentionally undermining the fundamental right at issue. In fact, Hawaii is only engaged in a kind of malicious compliance.

Hawaii has erected nonsensical hoops for gun-buyers to jump through to exercise a fundamental right. The passive-aggressive regulations at issue in this case are mirrored by remarkably similar barriers to voting that were struck down by the Supreme Court more than 50 years ago.

SAF founder and Executive Vice President Alan M. Gottlieb remarked when making a statement that if this were any other constitutional right that everyone would be up in arms over the controversy.

“The requirements to merely buy a handgun are solely designed to discourage Hawaii citizens of doing so. The two Hawaii requirements are disgustingly obvious in their intent, which is why the District Court found for plaintiffs Todd Yakutake and David Kikukawa.”

He noted the District Court “found that Hawaii had failed to produce any evidence to justify its scheme under any standard of review.”

“It is alarming,” Gottlieb observed, “that such statutory requirements to impede and discourage gun ownership exist anywhere in the country. Hawaii’s gun control scheme is deliberately complicated, and ultimately frustrating. It cannot be allowed to stand.”

The National Rifle Association also filed a brief of their own. 

Acquiring  a  firearm  in  the  Aloha  State  is  an  unnecessarily  complicated process.  Hawaii  laws  impose  many  repetitive  steps  and  short  deadlines  on  those who wish to exercise their Second Amendment rights. Two of those laws are chal-lenged here. The first is a provision of Hawaii’s permit-to-purchase-a-firearm statute that puts a 10-day expiration date on all permits to purchase handguns, and the second is a provision of the registration statute that requires the firearm be brought to the police station within five days of acquisition for inspection. These provisions were not passed to redress any problem. Instead, they were passed solely to “con-trol” how people exercise their Second Amendment rights.

Even worse, Hawaii submitted no evidence supporting either of these provi-sions.  Instead,  it  argues  that  the  provisions  should  be  upheld by “common  sense” alone. Common sense—not to mention Supreme Court precedent—says that when the  people  declared  that  the  right  to  keep  and  bear  arms  “shall  not  be  infringed,”  they  gave  the  government  a  heavier  burden.  Hawaii  did  not  meet  its  burden.  The  district court correctly found the two statutes to be unconstitutional, and this Court should affirm.

William J. Olsen, P.C., Attorneys at Law filed a brief for a number of Second Amendment related organizations. As noted in the brief, they represented the interests of the following groups: Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Heller Foundation, Oregon Firearms Federation, Tennessee Firearms Association, Virginia Citizens Defense League, Grass Roots North Carolina, America’s Future, Inc., Conservative Legal Defense and Education Fund, and Restoring Liberty Action Committee in Support of Plaintiffs-Appellees and Affirmance.

Although in this case the district court judge reached the correct result applying the Ninth Circuit’s decision in Young v. Hawaii, the Second Amendment should not be subjected to this Court’s convoluted balancing test. As Justice Scalia has explained, “the people” did the balancing when they ratified the Second Amendment, which bars all government infringements. See District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008).

Accordingly, these amici urge this Court to discard its flawed, multi-tiered balancing approach and faithfully apply the Supreme Court’s Heller and McDonald v. Chicago, 561 U.S. 742 (2010) decisions, under which Hawaii’s uniquely restrictive firearms regime must fail.

The controversy does have broader implications, such as permitting as a whole. In 21st Century United States, we already have the NICS system in place, which separates the suitable from the unsuitable persons concerning firearm possession/ownership. In footnote #9 of NYSRPA v. Bruen the topic of “permits” was brought up, with the presumption we’re talking about permits to bear, not keep.

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].”

An argument to the contrary would be saccharine, which Beck and Stephen Stamboulieh points out some historical analogue within the supplemental brief.

At the time of the Founding, no training was required to acquire a handgun or other firearm. The private transfer of firearms was common and unregulated during the relevant  historical  period.Unlike  in  person  inspection,  militia  training  was  not  a prerequisite   to   firearm   ownership. Instead,   these   militia laws   required   firearm ownership prior to militia training. 

Putting the matter of the controversy, and further any controversy over permitting for ownership, to bed, the brief details the history of permitting from a rather dark portion of American history postbellum.

No  law  prior  to  the  Fourteenth Amendment’s  ratification—including  the colonial, founding, and early republic periods,required any form of permit to acquire.The  only  regulations  comparable  to  Hawaii’s laws were  racist  laws  that  applied  to persons without recognized rights, primarilyAfrican Americans and American Indians. These  laws  required  licenses  from  either  local  government  officials  or  slave  masters. “Some Colonial and Reconstruction Era governments made it illegal to sell guns to enslaved or formerly enslaved people and members of Native American tribes. See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, 700 F.3d 185, 200(5th Cir. 2012) (collecting examples);Teixeira  v.  Cnty.  of  Alameda,  873  F.3d  670,  685  (9th  Cir.  2017)(same).” Drummond  v.  Robinson  Twp.,  9  F.4th  217,  228  (3d  Cir.  2021)(footnote omitted).  “As then-Judge Barrett once observed, ‘[i]t should go without saying that such race-based exclusions would be unconstitutional today.’”Id. n. 8. (quoting Kanter v. Barr, 919 F.3d 437,  458  n.7  (7th  Cir.  2019)  (Barrett,  J.,  dissenting). Therefore,  they  are  not  valid statutes to use in order to demonstrate a historical tradition.

The Beck-Stamboulieh team has continued to devastate and go beyond the decimation of unconstitutional provisions in the laws across the Union. The state of Hawaii has a high burden to meet in order to get the 9th to overturn the lower court’s ruling. Arguments used in this case are ripe for the taking for use in other jurisdictions to deconstruct these onerous and unconstitutional permitting laws that persist in certain areas. We’ll be watching the progress of this case and report back with any developments that arise.