William Kirk, president of Washington Gun Law, began his most recent analysis with a familiar refrain: when it comes to the Ninth Circuit, Second Amendment cases follow a predictable script. He told his audience that there are only three certainties in life – death, taxes, and the Ninth Circuit granting en banc review to overturn pro-gun rulings. According to Kirk, the pattern has become so obvious that it undermines confidence in the judiciary itself.
The Case at the Center: Yukutake v. Lopez
Kirk explained that the case in question, Yukutake v. Lopez, challenges two uniquely restrictive gun laws in Hawaii. The first law requires a permit to purchase firearms, but imposes a very narrow window for the purchase to be completed. If that deadline passes, the buyer must restart the entire process, complete with fees and paperwork. The second law mandates that once a firearm is purchased, it must be brought to the local police within five days for a physical inspection before the owner can lawfully keep it.
Panel Strikes the Laws, Ninth Circuit Steps In
As Kirk reported, a three-judge panel of the Ninth Circuit struck down these laws, calling them excessive and unjustified. But just as expected, the Ninth Circuit immediately moved to bring the case up for en banc review. Kirk emphasized that this move was not surprising to those familiar with the court’s track record, since nearly every Second Amendment victory at the panel level is later erased by a larger Ninth Circuit panel.
An Amicus Brief Calls Out the Court
The heart of Kirk’s report centered on a sharply worded amicus brief filed by the Second Amendment Foundation, the California Rifle and Pistol Association, and the Second Amendment Law Center. According to Kirk, the brief doesn’t just address the merits of Hawaii’s laws – it calls out the Ninth Circuit itself. The authors openly ask why the court has made a habit of reversing gun rights victories and why such rehearings are practically automatic in Second Amendment cases.
Numbers Tell the Story
Kirk cited figures presented in the brief to illustrate the imbalance. Between 2022 and 2023, the Ninth Circuit received more than 16,000 appeals, but granted en banc review in only 26 cases – about 0.16% of the total. Yet since the Heller decision in 2008, the Ninth Circuit has held en banc hearings to reverse Second Amendment victories 19 times. “Think about the odds of that,” Kirk said, pointing out that it’s statistically improbable unless the process is being bent deliberately.
Historical Precedent of Hostility
To underscore the point, Kirk revisited prior Ninth Circuit rulings. In Silveira v. Lockyer, the court ruled there was no individual right to bear arms. In Peruta v. San Diego, it held there was no right to carry concealed firearms. In Young v. Hawaii, it declared there was no right to open carry either. Kirk reminded viewers that in each of those cases, a three-judge panel initially sided with plaintiffs, only for the en banc panel to reverse the decision.
The Chilling Effect on Litigants
Kirk stressed that this trend has consequences beyond individual cases. As the amicus brief noted, it discourages citizens and advocacy groups from even filing lawsuits. Facing taxpayer-funded state governments with unlimited resources, pro-gun organizations must spend heavily to win a panel ruling – only to see it wiped away by the Ninth Circuit. This “chilling effect,” Kirk argued, was by design, meant to drain gun rights groups of resources and prevent them from securing lasting victories.
Procedural Irregularities Raise More Doubts
Adding to the criticism, Kirk pointed to instances where the Ninth Circuit appeared willing to bend or even ignore its own rules. He referenced Duncan v. Bonta, where the deadline for requesting en banc review had passed, yet judges managed to revive it anyway. Citing Justice VanDyke’s dissent, Kirk said this was a clear example of procedural irregularities being used to ensure a desired outcome against the Second Amendment.
Hawaii’s Laws: Outliers Even Among Gun Control States
Kirk underscored that Hawaii’s laws stand out even compared to other restrictive states. Neither California, New York, New Jersey, nor Illinois requires both an expiring purchase permit and a police inspection of firearms within days of purchase. That, according to the amicus brief, made the Ninth Circuit’s eagerness to rehear Yukutake even more suspicious. If ever there was a set of laws ripe for striking down, Kirk said, these were it.
Supreme Court May Be Forced to Step In
Kirk speculated that continued obstruction from the Ninth Circuit could eventually draw more aggressive action from the U.S. Supreme Court. He noted that Justice Gorsuch has already remarked on the Ninth Circuit’s dubious record of rejecting every single Second Amendment challenge. If the court continues to hand out what Kirk called “judicial middle fingers” to the Constitution, the Supreme Court may decide to step in more frequently to restore balance.
A Pattern Too Obvious to Ignore
What struck me about Kirk’s presentation is how matter-of-fact the pattern has become. When a three-judge panel rules for the Second Amendment, people no longer celebrate – it’s simply a countdown to the inevitable en banc reversal. That’s not how justice should work. A legal system gains legitimacy when its outcomes are uncertain but fair; here, the outcomes are predetermined. It’s hard not to sympathize with Kirk’s view that confidence in the courts is eroding.
Hawaii as a Testing Ground
Another point worth considering is why Hawaii’s laws exist in the first place. With one of the lowest rates of gun ownership in the nation, Hawaii has often been used as a laboratory for extreme regulations. If courts uphold these measures, other states may copy them. If courts strike them down, anti-gun lawmakers learn where the boundaries lie. That makes this case significant beyond Hawaii – it’s about setting precedents that could shape laws nationwide.
What the Court Should Do Next
Kirk relayed that the amicus brief urged the Ninth Circuit to dismiss the en banc review as “improvidently granted” and to reinstate the panel’s ruling. This, the brief argued, would help restore some confidence in the court. Whether the Ninth Circuit will do that remains doubtful, but the request itself signals how deep the frustration runs. For gun owners in Hawaii and across the West Coast, the case has become a litmus test for whether the courts can be trusted to apply the Second Amendment fairly.
Ed spent his childhood in the backwoods of Maine, where harsh winters taught him the value of survival skills. With a background in bushcraft and off-grid living, Ed has honed his expertise in fire-making, hunting, and wild foraging. He writes from personal experience, sharing practical tips and hands-on techniques to thrive in any outdoor environment. Whether it’s primitive camping or full-scale survival, Ed’s advice is grounded in real-life challenges.
