Having found the carrying of a handgun in public to be encompassed textually in the right to "bear arms," the Supreme Court in Bruen added that the historical record compiled by New York failed to demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense or of requiring citizens to demonstrate a special need for self-defense. It then inserted footnote 9 to that statement, explaining that "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]." However, the Court warned that "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."
In order to uphold restrictions not based on text or historical tradition, some lower courts have latched onto, and purported to find an expansive meaning in, footnote 9. The latest example is the Ninth Circuit's September 22 en banc decision in Yukutake v. Lopez, which upheld Hawaii's requirements that handgun purchasers obtain a handgun-acquisition permit that is void unless the purchase is completed in 30 days, and the handgun is presented for physical inspection within five days at the police station. The majority's reliance on Bruen footnote 9 prompted a lengthy disquisition on the subject by Judge Ryan Nelson, jointed by Judges Daniel Bress, Lawrence VanDyke, Bridget Bade, and Danielle Forrest.
The following are some of the leading comments on footnote 9 in Judge Nelson's dissent. There are actually more references to footnote 9 interspersed throughout his opinion.
