What may be one of the most unusual, and scathing, amicus briefs ever submitted to a federal appeals court was filed Monday by an attorney representing the Second Amendment Foundation, the California Rifle & Pistol Association and the Second Amendment Law Center.
In the 29-page brief, filed with the Ninth U.S. Circuit Court of Appeals in San Francisco, in a case from Hawaii known as Yukutake v. Lopez, attorney Konstadinos T. Moros, SAF director of Legal Research and Education tells the court its history of dealing with gun rights cases is “as indefensible as it is clear: the Second Amendment is (save for the recent exception of Nguyen) not allowed to prevail in the Ninth Circuit.”
In a prepared statement, Moros explains, “Our brief contends that the Ninth Circuit’s practice of routinely granting en banc rehearing to overturn Second Amendment victories undermines public confidence in the judicial system. We also argue that the court should reverse its erroneous interest-balancing standard set in B&L Productions, Inc. v. Newsom, which improperly revives a test rejected by the Supreme Court in Bruen. Hawaii’s laws clearly implicate the plain text of the Second Amendment, and without a historical basis, they cannot stand.”
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The case challenges Hawaii state handgun law which mandates a 30-day time limit for buying a firearm from the time the buyer obtains a permit from the police to the time the permit becomes invalid. Once the purchase is completed, the buyer then has five days to bring the gun to the police for inspection. Plaintiffs in the case contend this violates the Second Amendment.
According to a SAF release, “These laws lack any historical tradition of support and place undue burdens on law-abiding citizens exercising their constitutional rights.”
In his brief, Moros asserts, “If a gun owner living in Hawaii or the West Coast desires to challenge a particular gun law they believe violates the Second Amendment, this Court’s track record serves as the ultimate chilling effect to dissuade them from bothering to turn to the court system…More distressingly, some of these decisions were demonstrably wrong, and the challengers’ unsuccessful arguments were later vindicated by subsequent Supreme Court decisions.”
The Ninth Circuit is considered possibly the most liberal of all the federal appellate courts, and it has a history of reversing pro-Second Amendment rulings by district courts and three-judge panels.
“This amicus brief is part of SAF’s ongoing mission to defend, secure and restore the Second Amendment rights of Hawaii residents,” said SAF founder and Executive Vice President Alan Gottlieb. “These arbitrary restrictions in Hawaii are unique and burdensome with no parallel in other states. We urge the Ninth Circuit to either reinstate the three-judge panel’s ruling striking down these laws or rule in favor of the plaintiffs, ensuring that the Second Amendment is treated with the respect it deserves.”
In his brief, Moros notes “only about 2% of en banc petitions are granted (by the Ninth Circuit) and only about 0.16% of all filed appeals ever get en banc review. Yet despite how rare en banc rehearing is overall, somehow every single case in a final judgment posture in which plaintiffs prevail on Second Amendment challenges has received en banc review, with only one very recent exception in which California did not seek en banc review…”
