In 2011, Hawaii resident George Young applied for a license to carry a handgun, but his application was denied. In 2018, a divided panel of the Ninth Circuit ruled in Young v. Hawaii that the state of Hawaii’s discretionary (“may-issue”) permitting scheme for public carrying of handguns violated the Second Amendment. Three years later, an en banc panel of the Ninth Circuit, reversing the panel, ruled against Young by a 7-to-4 vote.
This past June, the Supreme Court ruled in New York State Rifle & Pistol Ass’n v. Bruen that New York’s may-issue permitting scheme violated the Second Amendment. The Court specifically identified Hawaii as one of six jurisdictions (five states and the District of Columbia) that have “analogues” to New York’s “proper cause” standard, and it cited the Ninth Circuit’s en banc ruling in Young as one of the rulings upholding such a standard. In the aftermath of Bruen, the Court, acting on a certiorari petition in Young, vacated the Ninth Circuit’s ruling and remanded the case “for further consideration.”
In an order today, the Ninth Circuit en banc panel, by the same 7-to-4 vote, declined to apply Bruen to the Young case and instead remanded the case to the district court for it to do so. Writing for the dissenters, Judge Diarmuid O’Scannlain (author of the 2018 panel ruling) objected that, “after Bruen, the question before us is simple”:
We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand….
Today we shy away from our obligations to answer the straightforward legal questions presented on appeal and to provide guidance to the lower courts in our Circuit. And in doing so, we waste judicial resources by sending the parties back to square one at the district court. The parties have waited a decade to resolve this litigation, and Young has waited over ten years to exercise his constitutional right to carry a handgun in public for self-defense. Because we opt not to decide this simple case, we force Young to wait even longer.