UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TODD YUKUTAKE; DAVID No. 21-16756 KIKUKAWA, D.C. No. 1:19-cv- Plaintiffs-Appellees, 00578-JMS-RT

v. OPINION ANNE E. LOPEZ, in her Official Capacity as the Attorney General of the State of Hawaii,

Defendant-Appellant, and CITY AND COUNTY OF HONOLULU,

Defendant.

Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding

Argued and Submitted February 14, 2023 Honolulu, Hawaii

Filed March 14, 2025 2 YUKUTAKE V. LOPEZ

Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Collins; Concurrence by Judge Lee; Dissent by Judge Bea

SUMMARY*

Second Amendment

The panel affirmed the district court’s summary judgment for Todd Yukutake and David Kikukawa in their action seeking declaratory and injunctive relief to prevent the Attorney General of Hawaii from enforcing two provisions of Hawaii’s firearms laws on the ground that the provisions violate the Second Amendment. First, plaintiffs challenged the constitutionality of Hawaii Revised Statutes § 134-2(e), which provides a narrow time window (originally 10 days, and now 30 days) within which to acquire a handgun after obtaining the requisite permit. The permit application process includes a background check. Second, plaintiffs challenged § 134-3 to the extent that, as part of Hawaii’s firearms registration process, it requires a gun owner, within five days of acquiring a firearm, to physically bring the gun to a police station for inspection. The district court concluded that the challenged aspects of both provisions were facially * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. YUKUTAKE V. LOPEZ 3

unconstitutional under the Second Amendment and permanently enjoined their enforcement. The panel denied the State’s motion to dismiss the appeal as moot due to recent legislative amendments to both of the challenged provisions. The amended versions were sufficiently similar to the previous versions that any presumption of mootness was rebutted. The panel affirmed the district court’s judgment that § 134-2(e)’s short timeframe for completing a firearms purchase after obtaining a permit was unconstitutional under the Second Amendment. The purchase and acquisition of firearms is conduct protected by the plain text of the Second Amendment. Because § 134-2(e) regulates conduct covered by the Second Amendment’s plain text, the Second Amendment presumptively protects that conduct. The burden therefore fell on the State to justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearms regulation. The panel evaluated the State’s justifications for § 134- 2(e) pursuant to the guidance provided in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 38 (2022), footnote 9, which acknowledged that background checks can serve the historically based valid purpose of ensuring that firearms are possessed by law-abiding, responsible citizens. In Section IV(B)(3) of the opinion, which Judge Lee did not join, Judge Collins interpreted Bruen’s footnote 9 as drawing on First Amendment jurisprudence to assess the constitutionality of specific aspects of a background-check- based permitting system. Such a permitting system must be guided by narrow, objective and definite standards and not employ abusive features, such as lengthy wait times, to deny ordinary citizens the