Hawai‘i's restrictions on how and when you can purchase a gun are going to court again.
In 2021, the First District Court found two firearm statutes unconstitutional: one that set an expiration date for permits to purchase handguns, and one that requires guns to be inspected in-person at the time of registration. These statutes were found to violate the Second Amendment of the U.S. Constitution.
Following that verdict, then-Attorney General Holly Shikada appealed the case, ultimately bringing the matter before a panel of three judges of the U.S. Court of Appeals for the Ninth Circuit, which covers the Mainland’s West Coast states, Alaska and Hawai‘i.
In March, that panel upheld the Hawai‘i court’s decision. But in July, the Ninth Circuit voted to rehear the case, effectively invalidating the panel’s verdict.
Second Amendment groups have criticized the Ninth Circuit, which has a history of overturning pro-gun victories, said Kostas Moros, Director of Legal Research and Education for the Second Amendment Foundation, which on Monday filed an amicus brief criticizing the Ninth Circuit for undermining public faith in the law.
“This is the ninth time they’ve vacated a Second Amendment victory,” Moros told Aloha State Daily. “It just seems like a dubious thing to do.”
The Ninth Circuit is using a procedure called "en banc," wherein all the judges of a given court sit to rehear the case instead of a small panel — although, in the case of the large Ninth Circuit, it will only be a larger panel made up of 11 judges chosen at random from the 29 active in the circuit.
Moros said it is “extremely rare” for courts to grant en banc petitions, with only 26 granted out of 1,351 — or, about 2% — filed in the Ninth Circuit between 2022 and 2023. Yet, he went on, since 2008, the Ninth Circuit has granted en banc for all but one case in which plaintiffs have successfully challenged laws on Second Amendment grounds.
“The government loses other appeals too and they don’t get en banc-ed,” Moros said.
Moros added that the state gun laws in question are “idiosyncratic … silly laws, frankly” that the Hawai‘i Attorneys General didn’t particularly try to justify in court.
“They just tried to argue that they didn’t violate the Second Amendment,” Moros said.
The Second Amendment Foundation’s amicus brief (a submission to the court by an entity that is not directly party to the case itself) argues that allowing the panel’s ruling to stand and invalidating the gun purchasing laws, buyers in Hawai‘i will “simply have the gun-purchasing status quo that exists in almost every other state.”
The document urges the Ninth Circuit to dismiss the en banc rehearing and sustain the three-judge panel’s ruling, and noted that failing to do so “erodes confidence in the fundamental fairness of the court.”
“I have no illusions that they’ll actually do that,” Moros said, noting that oral arguments are already scheduled to take place in January. “Amicus briefs can be aspirational sometimes.”
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