“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.”

That’s the contention in the primary dissent from Tuesday’s ruling in Yukutake v. Lopez. The closely divided en banc panel of the Ninth Circuit drew the lines in the case around footnote nine in the Supreme Court’s majority opinion in 2022’s New York State Rifle and Pistol Association v. Bruen. That’s the same brief footnote featured at the center of several rulings against gun-rights litigants in the post-Bruen era.

The main question footnote nine, which dealt with the ruling’s implications for “shall-issue” permitting regimes, has raised is whether Bruen‘s two-step test that requires examining the history and tradition of American gun regulations is the only way to settle modern Second Amendment disputes. Or does the footnote offer courts an alternative?

The dissenters said the answer is clear.

“Much of the confusion in the lower courts stems from the assumption that footnote 9 provides an alternative mode of analysis to Bruen. It does not,” Judge Ryan Nelson, who was joined by four of the other eleven panelists, wrote in Yukutake.

But the majority disagreed.

“The Court in Bruen took care to distinguish shall-issue from may-issue regimes,” Judge John Owens wrote. “May-issue regimes, like the handgun permit regulation at issue in Bruen, are constitutionally suspect because they grant authorities the discretion to deny licenses and permits even after applicants satisfy objective criteria. Shall-issue laws, by contrast, generally require applicants to satisfy only objective criteria, like background checks and firearm safety training, and are designed to ensure that those bearing arms are ‘law-abiding, responsible citizens.’ Unless a shall-issue law is ‘put toward abusive ends,’ such as through ‘lengthy’ processing delays or ‘exorbitant fees’ that effectively deny ordinary citizens their Second Amendment rights, it is presumptively constitutional.”

So, what does footnote nine say exactly? Well, it isn’t very long, but it is fairly straightforward. While the Supreme Court struck down New York’s “may-issue” licensing regime for gun carry, it made clear the ruling didn’t apply to other regimes.

“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],’” Justice Clarence Thomas wrote. “Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”

It then provides a caveat to that caveat.

“That said, 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,” Thomas wrote.

Justice Bret Kavanaugh, joined by Chief Justice John Roberts, provided a touch more insight into this thinking in a concurrence. He argued that New York’s “may-issue” law was “constitutionally problematic” because of how much “open-ended discretion” it gave licensing officials to effectively deny “the right to carry handguns for self-defense to many ‘ordinary, law-abiding citizens.'” He contrasted that with the “shall-issue” regimes for gun-carry.

“Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements,” Justice Kavanaugh wrote. “Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice.”

Judge Owens argued that most lower courts have given footnote nine and Kavanaugh’s discussion of it significant weight. He said they’ve mostly interpreted it along the same lines.

“[D]espite a wide range of methodological approaches to assessing shall-issue regulations, the circuit courts have converged on one unifying principle: non-abusive, shall-issue laws comport with the Second Amendment,” he wrote.

He said that means the only relevant question in the case is whether Hawaii’s requirements are abusive.

“Ultimately, we need not decide the bedeviling question of whether this is a step one or step two case under Bruen. We also need not—and should not—chart the entire constellation of possible shall-issue laws that one could draft or challenge,” Judge Owens wrote. “As the Fifth Circuit did in McRorey, we instead ask whether Plaintiffs have shown that the two presumptively lawful requirements in question—the thirty day purchase provision and the police station inspection requirement—have been put toward ‘abusive ends’ that would effectively ‘deny ordinary citizens’ their Second Amendment rights.”

Judge Owens ultimately concluded Hawaii’s requirements don’t meet that standard. Although, he did so without elaborating much on exactly why.

“[W]hile certain background checks, firearms safety courses, lengthy wait times, exorbitant fees, or other components of a shall-issue regime could trigger the Second Amendment’s protections, nothing in Plaintiffs’ Complaint suggests that either the thirty-day restriction or the police station inspection requirement crosses that line,” he wrote. “At most, the provisions impose only modest, procedural burdens. They require compliance with a reasonable deadline and, for firearms that fall into the categories set out in § 134-3(a) – (c), a brief administrative visit to verify basic information. They do not materially impede Plaintiffs from acquiring firearms. Even in light of Hawaii’s distinctive tradition of heightened firearm regulation, which the Supreme Court has viewed with skepticism, the requirements at issue here are not abusive.”

The dissenters jumped on that lack of elaboration. Judge Lawrence VanDyke accused the majority of having “seriously lost the plot” on Second Amendment challenges. He argued they created a new standard out of whole cloth that’s lower than anything the Ninth Circuit has previously employed.

“The majority invents a ‘carve-out’ to Bruen and declares that ‘non-discretionary, objective, and non-abusive shall-issue laws … pass constitutional muster’ without any ifs, ands, or buts. In other words, as long as a law meets the conveniently undefined standards of ‘non-discretionary,’ ‘objective,’ ‘non-abusive,’ and ‘shall-issue,’ the Second Amendment doesn’t apply at all,” Judge VanDyke wrote in a solo dissent. “No constitutional analysis is required, and no justification for the regulation is too stupid to jeopardize the law’s constitutionality.”

He argued that even the broadest reading of footnote nine wouldn’t support the majority’s conclusions about Hawaii’s law.

“Even if footnote 9 did create a carveout to the Bruen framework (which it did not), it did not hold that any and all ‘narrow,’ ‘objective,’ or ‘definite’ requirements for purchasing a firearm or obtaining a permit are automatically part of a ‘shall issue’ regime,” Judge VanDyke wrote. “At most, it observed that states that already had ‘shall issue’ regimes at the time Bruen was decided imposed some such requirements on applicants.”

Judge Nelson argued footnote nine isn’t meant to create a “different constitutional framework” from the rest of the Bruen ruling. Instead, he said it “merely” shows how the standard “might be applied in particular circumstances.” And he noted those circumstances were specific to gun-carry licensing.

“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. Those rules are not carry-license criteria,” he wrote. “They have nothing to do with ‘guiding licensing officials’ in the issuance of public-carry permits via ‘narrow, objective, and definite standards.’ 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.”

He further notes that the majority reads additional declarations into the footnote that aren’t actually from the text.

“The majority converts footnote 9’s cautious explanation into a categorical presumption: once a provision is couched in terms of an objective ‘shall-issue regime,’ the citizen must show that the provision is abusive enough to deny the right before Bruen‘s ordinary text-and-history analysis applies,” Judge Nelson wrote. “That reading does not follow from the footnote’s language. Footnote 9 never says ‘presumptively constitutional’ or ‘presumptively lawful.’ It does not identify a new, or different, standard of review. It does not say who bears the burden. And it does not instruct courts to bypass the historical inquiry when protected conduct is regulated. Its repeated qualifications—’do not necessarily,’ ‘often,’ ‘appear,’ and ‘do not rule out’—are the language of a limiting clarification, not a new doctrinal test.”

Ultimately, he concluded footnote nine simply “does not speak to this case.” Judge VanDyke went a step further on the implications of the majority’s use of the footnote.

“I agree that Bruen changed the law,” he wrote. “But if our court’s takeaway from Bruen is that Bruen changed the law to make it harder to mount a successful Second Amendment challenge, then somebody has seriously lost the plot.”

Judge Owens responded by pointing back up to the Supreme Court for further guidance.

“Judge R. Nelson’s dissent—which acknowledges that our holding is consistent with other courts applying Bruen—thoughtfully presents a different take on footnote 9,” he wrote. “And Judge VanDyke shares, as only he can, his Second Amendment worldview. Like the vast majority of courts reviewing footnote 9, we respectfully disagree with both of them. Hopefully, the Supreme Court will make clear which analysis it thinks is correct.”