A great Second Amendment victory in the 9th CCA, for now.
21-16756 Todd Yukutake, et al v. Anne E. Lopez, et al

On Friday, March 14, 2025, a divided three-judge panel of the 9th Circuit Court of Appeals held that two Hawaii laws violate the Second Amendment. Invalidating the two laws, in and of themselves, although a victory, was not a great victory.

The most important thing is how the laws were invalidated.

The two laws invalidated were 1) a permit to purchase a handgun that expired 30 days after it was issued and 2) a requirement that newly purchased firearms be brought to a police station to verify that the paperwork to purchase the firearm matched the firearm.

Two of the three judges on the panel facially invalidated the two laws.

Why is this of great importance? Because in 2022, the United States Supreme Court held in US v. Rahimi that a Second Amendment facial challenge fails if there are any constitutional applications of the law (seemingly, a single application is all it takes for a facial challenge to fail).

Putting aside an “Overbreadth” challenge, which is a type of facial challenge that does not claim that the challenged law is invalid in all of its applications, and putting aside a narrow facial challenge, a purely facial challenge claims that the law is invalid in all of its applications.**

A facial challenge does not consider how the challenged law applies to the specific individual(s) challenging the law. In a facial challenge, the Court looks at the law’s plain text and then decides whether the law is unconstitutional based only on the plain text. In the First Amendment context, it is not necessary for a challenged law to be invalid in all applications for enforcement of the law to be enjoined. I had thought that the Rahimi decision raised the bar for a successful facial challenge to an unreachable height, but now that we have three circuit courts of appeals facially invalidating laws as violating the Second Amendment, I may have to reconsider.

In the Yukutake decision, the 9th Circuit Court of Appeals has joined the 3rd and 8th Circuit Court of Appeals in facially invalidating laws as violating the Second Amendment.

The 3rd Circuit Court of Appeals facially invalidated a Pennsylvania law that prohibited persons 18-20 years of age from openly carrying loaded rifles, shotguns, and handguns in public during a state of emergency (the Court left intact the prohibition on issuing concealed carry permits to persons under 21 years of age). The 8th Circuit Court of Appeals invalidated a Minnesota law that prohibited persons 18 to 20 years from obtaining a license to carry a handgun in public for the purpose of self-defense.

Although hailed as a concealed carry victory by the usual suspects, a Minnesota handgun carry license is a license to carry a handgun in public, openly and concealed, and the license holder is exempt from the state’s general prohibition on carrying loaded rifles and shotguns in public. Not exactly the “victory” the concealed carriers had hoped for in either case. For them, there is only the right to carry concealed weapons and no right to openly bear arms.

This 9th CCA decision in Yukutake is especially significant for the Mark Baird v. Rob Bonta handgun Open Carry appeal of a final judgment because the plaintiff-appellant Mark Baird dropped his as-applied challenge in the district court and waived an as-applied challenge before the court of appeals by only raising an overbreadth challenge to two California laws that prohibit the Open Carry of loaded and unloaded handguns.

As I mentioned earlier, an overbreadth challenge is a type of facial challenge.

The Yukutake decision is doubly significant because one of the two judges who voted to invalidate the Hawaii laws facially is Judge Lee, the presiding judge in the Baird v. Bonta appeal. The other two judges on the Baird v. Bonta panel are Judge VanDyke and Judge N. Randy Smith, the same three judges who were assigned to the Baird v. Bonta preliminary injunction appeal.

The Court unanimously reversed the denial of the district court’s denial of a preliminary injunction. Then, the case was remanded back to the district court to apply the correct law to the motion for a preliminary injunction. Instead, District Court Judge Kimberly Mueller issued a final judgment in favor of the State of California. A decision in which she four times referred to handguns as “murder weapons.”

I’m sure had Mr. Baird challenged California’s bans on openly carrying loaded and unloaded long guns, Judge Mueller would likewise have said that rifles and shotguns are murder weapons as well despite the fact that, compared to handguns and other concealable weapons, the number of homicides committed with long guns is a tiny fraction of homicides committed with handguns (and even a smaller fraction if one includes knives in the comparison).

In his Answering Brief in the appeal of the final judgment, California Attorney General Rob Bonta made certain to point out that Mr. Baird’s as-applied claims were dismissed without prejudice, and the district court gave Mr. Baird leave to amend his Complaint and to add defendants, such as the County Sheriff but he did not.

AG Bonta correctly argues that Mr. Baird forfeited any as-applied challenge by not distinctly raising and arguing any as-applied challenge in his opening brief. Curiously, though, AG Bonta makes this argument in a footnote on page 24 of his Answering Brief. Procedurally, all three-judge panels in the 9th Circuit Court of Appeals are prohibited from considering arguments made in a footnote. For that matter, three-judge panels are prohibited from considering arguments made anywhere in a brief except for the section of the brief labeled “Argument Section.” Just before one makes his argument in his Argument Section, one is supposed to make a separate “Summary of Argument.” Mr. Baird’s Argument section contains his Summary of Argument embedded within the Argument Section. I have no idea how the three-judge panel will deal with that procedural conundrum.

Stranger still, AG Bonta expends a great deal of ink defending California’s licensing statutes (PC 26150 et seq). Statutes that apply to both the concealed and Open Carry of handguns in public. He does this even though Mr. Baird conceded in his opening brief (albeit in a footnote) that “Appellant’s challenge to the licensing statute [Penal Codes 26150 and 26155] was not incorporated into the second amended complaint.”

There is only one issue raised by Mr. Baird in his opening brief. That issue is “Whether California Penal Code sections 25850 and 26350, which criminalize the open carriage of handguns for self-defense, violate the Second Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment.”

Given that Mr. Baird does not challenge the constitutionally of California’s handgun licensing laws (PC26150 et seq), the Court of Appeals does not have jurisdiction to decide whether or not those laws are Constitutional. So why waste the ink? Who knows.

There are other mistakes and oddities in the briefs filed by both sides. Whether these mistakes turn out to be fatal, and for which side will have to wait for the three-judge panel’s decision and the decision made by any en banc panel or SCOTUS.

One final comment. It took two years and one month to the day from oral argument for the panel to issue its decision. I hope the delay is because 90-year-old dissenting Judge Bea dragged his feet when writing his dissent. Neither Congress nor the 9th Circuit CCA has established a time limit for issuing a decision.

I hope that was the reason why the decision took so long. The only disagreement between the two judges in the majority was on how to treat footnote 9 of the opinion in NYSRPA v. Bruen. Both sides agree that footnote 9 is dicta*, but given that neither Judge Lee nor dissenting Judge Bea joined in Judge Collins’s decision in that section of the opinion, that section is not precedential.

* I do not like or use the word “dicta.” Dicta is in the eyes of the beholder. My definition of dicta is “Dicta is the part of the holding you don’t like.” The 10th Circuit Court of Appeals has somewhat sidestepped the issue by holding that Supreme Court dicta is as binding on the court as the actual holding of the Supreme Court. Unfortunately, the 9th Circuit rule is just to give “due deference” to Supreme Court dicta. This means a majority of any panel gets to decide what is dicta and what constitutes due deference.

** I have lost count of all the state and Federal court decisions I’ve read that upheld laws when deciding only a facial challenge outside of the First Amendment. I can only recall one Court that gave an example of an application of a valid law when confronted with a purely facial challenge. That Court was SCOTUS in US v. Rahimi.

Here is the CourListener link to Mark Baird v. Rob Bonta, and the 9th CCA slip opinion to Todd Yukutake, et al v. Anne E. Lopez, et al