Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 1 of 23

No. 23-16164

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON WOLFORD; ALISON WOLFORD; ATOM KASPRZYCKI; HAWAII

FIREARMS COALITION,
Plaintiffs-Appellees,
v.
ANNE E. LOPEZ, in her official capacity as the Attorney General of the State of
BXnX`x`(
Defendant-Appellant.

Ie ;gg\Xc ]ifd k_\ Oe`k\[ MkXk\j >`jki`Zk =flik ]fi k_\ >`jki`Zk f] BXnX`x`
No. 1:23-cv-00265-LEK-WRP, Hon. Leslie E. Kobayashi

DEFENDANT-APPELLANT ANNE E. LOPEZS6 34436/7/32 73

PLAINTIFFS-'44+00++6S )31(/2+* 4+7/7/32 ,35 4'2+0
REHEARING AND PETITION FOR REHEARING EN BANC

ANNE E. LOPEZ NEAL KUMAR KATYAL

)RRMPLDV .DLDP@J ME RGD 9R@RD ME /@U@HXH DANA A. RAPHAEL
KALIKOxOHF;HC D. FERNANDES Special Deputy Attorneys General
Solicitor General HOGAN LOVELLS US LLP
STATE OF HAWAIxI 555 Thirteenth Street N.W.
DEPARTMENT OF THE ATTORNEY GENERAL Washington, D.C. 20004
425 Queen Street (202) 637-5600
Honolulu, HI 96813 neal.katyal@hoganlovells.com
(808) 586-1360
kaliko.d.fernandes@hawaii.gov
 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 2 of 23

MARY B. MCCORD BEN GIFFORD

RUPA BHATTACHARYYA Special Deputy Attorney General
SHELBY B. CALAMBOKIDIS INSTITUTE FOR CONSTITUTIONAL
ALEXANDRA LICHTENSTEIN ADVOCACY & PROTECTION
Special Deputy Attorneys General Georgetown University Law Center
INSTITUTE FOR CONSTITUTIONAL PO Box 211178
ADVOCACY & PROTECTION Brooklyn, NY 11221
Georgetown University Law Center (202) 662-9835
600 New Jersey Avenue N.W. bg720@georgetown.edu
Washington, D.C. 20001
(202) 661-6607
mbm7@georgetown.edu

Attorneys for Defendant Anne E. Lopez, in her official capacity as the

)RRMPLDV .DLDP@J ME RGD 9R@RD ME /@U@HXH
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................2

I. The Private Property Default Rule Is Constitutional ............................2

A. The Panel Correctly Held That the Default Rule Falls Within
k_\ HXk`feyj B`jkfi`ZXc NiX[`k`fe f] @`i\Xid L\^lcXk`fe ...........2
B. The Panel Opinion Does Not Conflict with Antonyuk................6
II. Under Bruen, Courts Should Consider Historical
Analogues from Both the Founding and Reconstruction
Eras ........................................................................................................8

A. The Panel Looked to the Correct Time Periods..........................8

B. The Panel Opinion Does Not Conflict with Any Supreme Court
or Court of Appeals Decisions ..................................................12
III. N_\ =flik M_flc[ Hfk vBfc[w JcX`ek`]]jy J\k`k`fe ..............................14

CONCLUSION ........................................................................................................15

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases
Antonyuk v. James, 144 S. Ct. 2709 (2024) ...............................................................7

Antonyuk v. James, No. 22-2908, 2023 WL 11963034 (2d Cir. Oct. 24, 2024) ...7, 8

Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) ...............................................6

Coal. for Econ. Equity v. Wilson, 122 F.3d 718 (9th Cir. 1997) .............................15

District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................6

Garland v. Range, 144 S. Ct. 2706 (2024) ..............................................................11

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012).......................6

Kipke v. Moore, No. 24-01799 (4th Cir.).................................................................14

2MMLQ T' )RRYy Gen., No. 23-1900 (3d Cir.) .............................................................14

3@P@ T' +MKKYP 7DLLQVJT@LH@ 9R@RD 7MJHBD, 91 F.4th 122 (3d Cir. 2024) ..............13

Lawrence v. Chater, 516 U.S. 163 (1996) (per curiam) ..........................................11

5'=' 9R@RD 8HEJD $ 7HQRMJ )QQYL T' *PSDL, 142 S. Ct. 2111 (2022) ................... passim

Paris v. Lara, No. 24-93, 2024 WL 4486348 (U.S. Oct. 15, 2024) ........................13

Slovik v. Yates, 556 F.3d 747 (9th Cir. 2009) ........................................................1, 3

United States v. Connelly, 117 F.4th 269 (5th Cir. 2024) .......................................13

United States v. Rahimi, 144 S. Ct. 1889 (2024) ............................................. passim

Vincent v. Garland, 144 S. Ct. 2708 (2024) ............................................................11

Worth v. Jacobson, 108 F.4th 677 (8th Cir. 2024) ..................................... 12, 13, 14

Statutes
Haw. Rev. Stat. § 134-9.1(a)(4) .................................................................................1

Haw. Rev. Stat. § 134-9.1(a)(9) .................................................................................1

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Haw. Rev. Stat. § 134-9.5 ..........................................................................................1

Other Authorities
Declaration of Hendrik Hartog, Koons v. Platkin, No. 1:22-cv-07464 (D.N.J. Feb.
13, 2023), ECF No. 84 ...........................................................................................5

Kurt Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan.
15, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3766917 .........10

Rules
9th Cir. R. 35-1 ..........................................................................................................1

Fed. R. App. P. 35(b)(1).............................................................................................1

Fed. R. App. P. 40(a)(2) .............................................................................................1

Fed. R. App. P. 41(b) ...............................................................................................14

iii
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INTRODUCTION

@fccfn`e^ k_\ Mlgi\d\ =flikyj [\Z`j`fe `e New York State Rifle & Pistol

)QQYL T' *PSDL, 142 S. Ct. 2111 (2022), the BXnX`x` F\^`jcXkli\ le[\ikffb X

comprehensive reevaluation of its firearms laws. The product of this effort was

Act 52, which sought to mitigate the serious risks of firearms and gun violence,

while simultaneously deeply respecting the limits that Bruen imposed. As relevant

here, Act 52 restricted firearms in parks, beaches, and bars and restaurants serving

alcohol, and it prohibited carrying firearms on the private property of another

person without authorization. See Haw. Rev. Stat. §§ 134-9.1(a)(4), (9), 134-9.5.

The panel correctly held that these provisions are likely lawful under Bruen,

and Plaintiffs have failed to identify any vpoint of law or fackw k_Xk k_\ gXe\c

voverlooked or misapprehended*w Fed. R. App. P. 40(a)(2). Plaintiffs here instead

relitigate points that the panel thoroughly considered and rejected. And to the

extent Plaintiffs raise new arguments in their petition, those arguments have been

forfeited. See Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir. 2009).

Plaintiffs have also failed to identify any conflict between the panel opinion

and decisions of the Supreme Court or other courts of appeals. See Fed. R. App. P.

35(b)(1); 9th Cir. R. 35-1. The panel correctly held that the challenged provisions

are likely constitutional under Bruen and United States v. Rahimi, 144 S. Ct. 1889

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(2024). And the court of appeals decisions that Plaintiffs discuss either have been

vacated or do not raise a conflict with the panel opinion.

Plaintiffs ask in the alternative for the Court kf v_fc[w k_\`i g\k`k`fe for the

resolution of Second Amendment cases currently pending before other courts of

appeals. But Plaintiffs are not willing, while waiting, to lift the injunction

currently barring Hawaixi, a sovereign State, from implementing an act of its

legislature, even though the panel has held that the challenged provisions are likely

constitutional. Because Plaintiffs have not provided any grounds warranting panel

rehearing or rehearing en banc, the petition should be denied.

ARGUMENT

I. The Private Property Default Rule Is Constitutional

A. The Panel Correctly Held That the Default Rule Falls Within the
2<LCHGSK Historical Tradition of Firearm Regulation

As the panel explained, Hawaix`yj gi`mXk\ gifg\ikp [\]Xlck ilc\ `s supported

by a historical tradition of firearm regulation stretching back to the 1700s. See

Op. 65t67. Indeed, the panel noted, the State exceeded its burden under Bruen by

`[\ek`]p`e^ v[\X[ i`e^\ij,w `eZcl[`e^ X -33- H\n D\ij\p cXn Xe[ Xe -421

Louisiana law. Id. at 67. vThose lawsuenacted shortly before the ratification of

the Second Amendment and very shortly before the ratification of the Fourteenth

Amendmentuwere uncontroversial(w Xe[ vUkVhey are easily analogous to the

xsensitive placesy laws mentioned by the Supreme Court.w Id.

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Plaintiffs criticize the panel for relying on only vknf cXnj(w J\k* 6, but that is

exactly the number of laws the Supreme Court relied on when it concluded that

legislative assemblies and courthouses are sensitive, see Op. 34; Everytown Br.

16t17. Also, the State offered additional examples of laws regulating firearms on

v`eZcfj\[w gifg\ikp( and the panel reserved the question of whether those laws

applied to private property open to the public. Op. 66 n.10. As the State has

explained, the answer to that question is yes, see OB54t55, and those laws thus

provide further support for the default rule.

In addition to faulting the panel for considering too few laws in general,

Plaintiffs take issue with each of those laws specifically. With respect to the 1865

Louisiana law, Plaintiffs argue for the first time in their petition that the regulation,

even though nondiscriminatory on its face, should be disregarded because it was

part of the Black Codes. See Pet. 6t7. This new argument is forfeited, see Slovik,

556 F.3d at 751 n.4, but it is also unavailing. As one of k_\ MkXk\yj \og\iks

explained in the district court, opponents of Black Codes agreed that the Second

Amendment was limited by the rights of private property owners: Union General

Daniel Sickles, for exampleuwhose views on the Second Amendment were cited

approvingly in Bruen, 597 U.S. at 62t63uissued an order preempting South

=Xifc`eXyj Black Codes that recognized that vk_\ Zfejk`klk`feXc i`^_kj f] Xcc cfpXc

and well-[`jgfj\[ `e_XY`kXekj kf Y\Xi Xidj n`cc efk Y\ `e]i`e^\[(w Ylk made clear

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that this right [`[ efk vXlk_fi`q\ Xny person to enter with arms on the premises of

Xefk_\i X^X`ejk _`j Zfej\ek*w 3-ER-0480-0481 (Cornell Decl. ¶ 52) (internal

quotation marks and alteration omitted). M`Zbc\jyj fi[\i is yet further evidence

that private property default rules reflect vX constitutional consensus deeply rooted

`e k\ok( _`jkfip( Xe[ kiX[`k`fe(w /-ER-,04,( Xe[ JcX`ek`]]jy \]]fiks to discredit these

rules are unpersuasive.

Turning to the 1771 New Jersey law, JcX`ek`]]j Xi^l\ k_Xk k_\ i\^lcXk`fe vis

both an outlier and not compXiXYc\ kf BXnX``yj cXn*w J\k* 3* N_\ gXe\c Zfii\Zkcp

_\c[( _fn\m\i( k_Xk H\n D\ij\pyj cXn ]\cc n`k_`e van established tradition of

arranging the default rules that apply specifically to the carrying of firearms onto

private property*w Ig* 67. And New J\ij\pyj cXn `j XeXcf^flj kf BXnX`x`yj `e

k\idj f] Yfk_ vhow and why the regulations burden a law-abiding citizenys right to

armed self-defense*w Bruen, 597 U.S. at 29* ;j ]fi v_fn(w k_\ H\n D\ij\p cXn

imposed an even greater burden than Hawaix`yj because it required written consent,

n_\i\Xj BXnX`x`yj law Xccfnj ]fi vni`kk\e or verbal Xlk_fi`qXk`fe*w I<1/

(internal quotation marks omitted). Aj ]fi vn_p(w both regulations are vrooted in

respect for private property rights*w OB54. Plaintiffs try to distinguish New

Jerseyyj law on the ground that it was focused fe vki\jgXjj`e^.w See Pet. 8t9. But

to the extent Plaintiffs suggest that the law applied only to people otherwise

unlawfully on private property, that suggestion is belied by the cXnyj k\ok, which

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contains no limitation, and which generally regulatesuXj BXnX`x`yj cXn doesuthe

carrying of firearms on private property without permission. See 5-ER-1055; see

also Declaration of Hendrik Hartog ¶ 34, Koons v. Platkin, No. 1:22-cv-07464

(D.N.J. Feb. 13, 2023), ECF No. 84 (explaining that, under the 1771 New Jersey

cXn( v`] fe\ \ek\i\[ X YcXZbjd`k_yj j_fg( fe\ e\\[\[ k_\ g\id`jj`fe f] k_\

blacksmith or his agents if one meant to enter the space armedw&*

@`eXccp( JcX`ek`]]j Zfek\e[ k_Xk BXnX`x`yj [\]Xlck ilc\ vdakes it impossible to

carry a firearm for lawful self-defense as a practical matter*w J\k* -,

(capitalization altered). Pointing to Bruenyj fYj\imXk`fe k_Xk vthere is no historical

basis for H\n Sfib kf \]]\Zk`m\cp [\ZcXi\ k_\ `jcXe[ f] GXe_XkkXe X xj\ej`k`m\

place(yw 597 U.S. at 31( JcX`ek`]]j Xjj\ik k_Xk vBXnX``yj ilc\ \]]\Zk`m\cp [f\j k_\

same thing and is unconstitutional for the same reasons(w J\k* -,* ;j k_\ gXe\c

\ogcX`e\[( _fn\m\i( vPlaintiffs may take their firearms onto the public streets and

sidewalks throughout Maui County (and elsewhere in Hawaii), as well as into

many commercial establishments and other locations*w Ig* 45 n.4. Accordingly,

vthe situation in this case is unlike the argument that Bruen rejected*w Id.

;k Yfkkfd( JcX`ek`]]jy [`jX^i\\d\ek n`k_ k_\ [\]Xlck ilc\ `j X gfc`Zp [`jglk\*

N_\p Xi^l\ k_Xk vU[Vefault rules are inherently stickyw Xe[ k_Xk vfewer people will

carryw ]`i\Xidj `] k_\p Xi\ i\hl`i\[ kf fYkX`e g\id`jj`fe* J\k* 11. The question for

this Court, though, `j efk n_\k_\i [\]Xlck ilc\j Xi\ vjk`Zbp,w or whether it would be

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a bad thing if they were. It is whether BXnX`x`yj cXn `j vconsistent with the

gi`eZ`gc\j k_Xk le[\ig`e fli i\^lcXkfip kiX[`k`fe*w Rahimi, 144 S. Ct. at 1898. The

Mlgi\d\ =flik _Xj \ogcX`e\[ k_Xk vUkVhe Second Amendment xis the very product

of an interest balancing by the people.yw Bruen, 597 U.S. at 26 (quoting District of

Columbia v. Heller, 554 U.S. 570, 635 (2008)). And when vour Founding Fathers

drafted the Second Amendment(w k_\p [`[ jf X^X`ejk k_\ YXZb[ifg f] vproperty

law, tort law, and criminal laww k_Xk \o`jk\[ Xk k_\ k`d\* GeorgiaCarry.Org, Inc. v.

Georgia, 687 F.3d 1244, 1264 (11th Cir. 2012). One essential component of that

backdrop was the ri^_k kf \oZcl[\( n_`Z_ nXj vuniversally held to be a

fundamental element of the property right.w Cedar Point Nursery v. Hassid, 594

U.S. 139, 150 (2021) (internal quotation marks omitted). Both before and after the

Founding, governments reinforced private property rights, not just through the

criminal offense of trespass, but also through laws like H\n D\ij\pyj k_Xk i\hl`i\[

guests to obtain permission before carrying firearms on private property. Those

cXnj i\]c\Zk k_\ vbalance . . . struck by the traditions of the American peoplew k_Xk

the Constitution preserves. Bruen, 597 at 26. And there is no room to second-

guess that balance because one would have struck it differently.

B. The Panel Opinion Does Not Conflict with Antonyuk

Plaintiffs also argue that the Court should grant their petition because the

gXe\c fg`e`fe Zfe]c`Zkj n`k_ k_\ M\Zfe[ =`iZl`kyj [\Z`j`fe `e Antonyuk, which held

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k_Xk H\n Sfibyj gi`mXk\ gifg\ikp [\]Xlck ilc\ nXj c`b\cp leZfejk`klk`feXc as

applied to private property open to the public.1 As the State has explained,

however, see Dkt. 68, 92, Antonyukyj _fc[`e^ i\^Xi[`e^ H\n Sfibyj [\]Xlck ilc\

was tied to the record in that case. Critical to the M\Zfe[ =`iZl`kyj decision was the

]XZk k_Xk H\n Sfib _X[ vproduced no evidencew k_Xk k_\ historical analogues it

proffered in support of its ruleuincluding the 1771 New Jersey law and the 1865

Louisiana law relied upon by the panel in this caseun\i\ vunderstood to apply to

private property open to the public or that the statutes were in practice applied to

private property open to the public.w 2023 WL 11963034, at *78. And the court

stated that v[a]s it has been developed thus far, the historical record indicates that

xland,y ximproved or inclosed landy and xpremises or plantationsy would have been

understood to refer to private land not open to the public.w Id. (emphasis added).

Here, by contrast, the State has offered evidence that its historical analogues

applied to private property open to the public. Before the district court and the

panel, the State cited a declaration submitted by Professor Hendrik Hartog in

Koons, which explained that the 1771 New Jersey law discussed in Antonyuk and

the panel opinion v\ok\e[\[ kf Xcc mXi`\k`\j f] i\Xc gifg\ikp( `eZcl[`e^ k_\ kpg`ZXc

1
The Supreme Court vacated Antonyuk following Rahimi. See Antonyuk v. James,
144 S. Ct. 2709 (2024). The Second Circuit has since issued a new opinion, in
which it reached the same conclusions as its original opinion. See Antonyuk v.
James, No. 22-2908, 2023 WL 11963034 (2d Cir. Oct. 24, 2024).

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xYlj`e\jj\jy f] k_\ k`d\j.w OB54 (internal quotation marks omitted); see also 2-

ER-0116-0117. Professor Hartog also explained that the phrase v`dgifm\[ fi

`eZcfj\[ cXe[j `e Xep JcXekXk`fe(w Xj lj\[ `e X [`]]\i\ek _`jkfi`ZXc XeXcf^l\( [`[ efk

limit that provision to fenced-in land. See OB55; 2-ER-0117. The Second Circuit

did not have this evidence before it when it decided Antonyuk, and it might have

viewed the default rule differently if it had been presented with a more

vdeveloped . . . historical recor[*w 2023 WL 11963034, at *78. The panel here,

dfi\fm\i( dX[\ Zc\Xi k_Xk `kj fne [\Z`j`fe [\g\e[\[ fe vZXi\]lccp _XmU`e^V

\oXd`e\[ k_\ i\Zfi[ `e k_\ BXnX`` ZXj\(w Xe[ that it disagreed with Antonyuk only

vto the extent that our decision conflicts with the analysisw f] k_\ M\Zfe[ =`iZl`k*

Op. 68t69. Given the record-specific nature of the Zflikjy i\jg\Zk`m\ decisions

i\^Xi[`e^ k_\ BXnX`x` Xe[ H\n Sfib [\]Xlck ilc\j, there is no conflict between the

panel opinion and the analysis in Antonyuk.

II. Under Bruen, Courts Should Consider Historical Analogues from Both
the Founding and Reconstruction Eras

A. The Panel Looked to the Correct Time Periods

The panel correctly held that vwhen considering the xsensitive placesy

doctrine, we look to the understanding of the right to bear arms both at the time of

the ratification of the Second Amendment in 1791 and at the time of the

ratification of the Fourteenth Amendment in 1868.w Ig* 36. In reaching this

ZfeZclj`fe( k_\ gXe\c \ogcX`e\[ k_Xk vUfVur Nation has a clear historical tradition of

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banning firearms at sensitive places(w Xe[ k_Xk vtradition . . . existed at the

Founding.w Id. Because of this longstanding tradition, state and local governments

do not need to prove that challenged sensitive-place classifications have analogues

that existed at the Founding in particular. Instead, they must merely show that a

given location falls within the broader sensitive-place tradition recognized by the

Supreme Court, which they can do by offering va small number of laws,w including

vlocalized lawsw and v19th-century laws,w if vthose laws were viewed as non-

controversial.w Id. Compare Bruen, 597 U.S. at 46 %vdoubt[ing] that three

colonial regulations could suffice to show a tradition of public-carry regulationw&(

with id. at 30 %vXjjldU`e^V `k j\kkc\[w based on only a couple 18th- and 19th-

century analogues that certain sensitive-place restrictions were constitutional,

n_\i\ k_\i\ n\i\ vno disputes regarding the lawfulness of such prohibitionsw&*

In arguing for a myopic focus on the Founding Era, Plaintiffs rely heavily on

a single paragraph from Bruen. See Pet. 14t15. There the Court explained that

vindividual rights enumerated in the Bill of Rights and made applicable against the

States through the Fourteenth Amendment have the same scope as against the

Federal Government(w Xe[ the Court stated that it therefore vgenerally assumed

that the scope of the protection applicable to the Federal Government and States is

pegged to the public understanding of the right when the Bill of Rights was

adopted in 1791.w Bruen, 597 U.S. at 37. From these statements, Plaintiffs infer

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k_Xk va right incorporated under the Fourteenth Amendment brings with it the

original meaning of the right as it was understood at the time of the founding, not

some new version based on 1868 understandings.w Pet. 15.

N_`j Xi^ld\ek `^efi\j k_\ =flikyj dfi\ jg\Z`]`Z [`jZljj`fe f] j\ej`k`m\-

place restrictions. See Bruen, 597 U.S. at 30. And it fails to address the

subsequent paragraph in Bruen, which highlighted k_\ vongoing scholarly debate

on whether courts should primarily rely on the prevailing understanding of an

individual right when the Fourteenth Amendment was ratified in 1868 when

defining its scope*w Id. at 37. Although the Court found it unnecessary to weigh in

on that debateuand thus expressly left open the question of whether 1791 or 1868

understandings should governuit quoted from a secondary source that argued that

vUnVhen the people adopted the Fourteenth Amendment into existence, they

readopted the original Bill of Rights, and did so in a manner that invested those

original 1791 texts with new 1868 meanings.w Id. at 38 (quoting Kurt Lash, Re-

Speaking the Bill of Rights: A New Doctrine of Incorporation 2 (Jan. 15, 2021),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3766917). As the State and

its amici have explained, see RB9t12; Everytown Br. 2t15, the best understanding

of Bruen is that courts can look to both Founding- and Reconstruction-era laws.

Plaintiffs also fail to explain how Rahimi could have changed the relevant

analysis. Rahimi involved a challenge to a federal law, not a state or local law,

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and, as in Bruen, the Court expressly declined to weigh in on the time-period

debate. See 144 S. Ct. at 1898 n.1. Plaintiffs argue that k_\ Mlgi\d\ =flikyj

decision to grant, vacate, and remand (GVR) in Antonyuk vmust be read as a

direction to the Second Circuit to reconsider its holding on this very point in light

of Rahimi.w Pet. 13. But Xcc k_Xk ZXe Y\ i\X[ ]ifd X APL `j k_\ =flikyj

determination that there is va reasonable probability that the decision below rests

upon a premise that the lower court would reject if given the opportunity for

further consideration.w Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per

curiam). Following Rahimi( k_\ =flik APLy[ g\k`k`fej `e X eldY\i f] M\Zfe[

Amendment casesuincluding cases on opposite sides of particular splits, compare

Garland v. Range, 144 S. Ct. 2706 (2024), with Vincent v. Garland, 144 S. Ct.

2708 (2024)uwhich makes sense given that Rahimi provided generally applicable

guidance about how courts should interpret Bruen. Those GVRs were clearly

intended to allow lower courts to implement the guidance from Rahimi. They do

not suggest the Court intended to signal its views on specific questions presented.

Even if Plaintiffs were correct that Bruen and Rahimi prioritized Founding-

over Reconstruction-era history, it would not affect the challenged aspects of the

panel opinion. As the panel explained, the restriction on firearms in bars and

restaurants serving alcohol and the private property default rule are justified by

regulations stretching back to the 1700s. See Op. 48 (vU@Vrom before the Founding

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Xe[ Zfek`el`e^ k_ifl^_flk k_\ HXk`feyj _`jkfip( ^fm\ied\ekj _Xm\ i\^lcXk\[ `e

order to mitigate the dangers of mixing alcohol and firearms.w&7 id. at 67

%vCollectively, the laws establish that colonies and States freely arranged the

relevant default rules.w&* ;nd although firearms were not restricted in parks until

the 1800s, that is because modern parks did not exist before that time. See id. at

40t0-* L\^Xi[c\jj f] n_\k_\i k_\ M\Zfe[ ;d\e[d\ekyj d\Xe`e^ nXj ]`o\[ `e

1791 or 1868, Bruen and Rahimi make clear that laws cannot be struck down

simply because they regulate phenomena whose existence post-dates the relevant

time period. See Bruen, 597 U.S. at 28 %vUNVhe Constitution can, and must, apply

to circumstances beyond those the Founders specifically anticipated*w&7 Rahimi,

144 S. Ct. at 1897t98 %vUNVhe Second Amendment permits more than just those

regulations identical to ones that could be found in 1791.w&*

B. The Panel Opinion Does Not Conflict with Any Supreme Court or
Court of Appeals Decisions

For the reasons just discussed, the panel opinion does not conflict with

Bruen or Rahimi. Nor have Plaintiffs identified any conflict with decisions from

other courts of appeals, and their cited cases do not even involve sensitive-place

laws. Plaintiffs point to k_\ ?`^_k_ =`iZl`kyj [\Z`j`fe `e Worth v. Jacobson, 108

F.4th 677 (8th Cir. 2024), but the court there assumed that it could consider

Reconstruction-era sources, and it rejected those sources on the ground that they

were not sufficiently analogous to the challenged age restriction on public carry,

12
 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 18 of 23

see id. at 696t98. Plaintiffs also suggest that the panel opinion conflicts with the

Fifth Circuikyj [\Z`j`fe `e United States v. Connelly, 117 F.4th 269 (5th Cir. 2024),

but that case involved a challenge to a federal law, not a state or local law. Its

analysis of the relevant time period is therefore inapplicable here.

Finally, Plaintiffs cite the T_`i[ =`iZl`kyj [\Z`j`fe `e Lara v. Commissioner

Pennsylvania State Police, 91 F.4th 122 (3d Cir. 2024), see Pet. 15, but after

Plaintiffs filed their petition, Lara was vacated in light of Rahimi, see Paris v.

Lara, No. 24-93, 2024 WL 4486348 (U.S. Oct. 15, 2024). Even if Lara had not

been vacated, it would not have conflicted with the panel opinion because Lara

involved an age restriction on public carry, not a sensitive-place law. As already

explained, see supra pp. 8t9, the question in a sensitive-places case is whether a

location falls within the recognized historical tradition that has existed since the

Founding. The Supreme Court has looked to later regulations, including from the

1800s, to determine whether a location is sensitive. See Op. 36 (noting k_Xk vUkV_\

Supreme Court held that schools qualify as sensitive places because of localized,

non-controversial laws that . . . were first enacted in 1824w&* While Lara focused

on Founding-era sources when assessing a different type of law, it is an open

question whether the Third Circuit would impose a similar temporal restriction in a

sensitive-places case. Indeed, the Eighth Circuit in Worth, which also considered

13
 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 19 of 23

an age restriction on public carry, noted that public-carry prohibitions are vdlZ_

[`]]\i\ek `e jZfg\ k_Xew j\ej`k`m\-place laws. See 108 F.4th at 696.

III. TB? )HMJL 6BHME> 2HL Q.HE>R 4E<CGLC@@KS 4?LCLCon

Ce k_\ Xck\ieXk`m\( JcX`ek`]]j Xjb k_`j =flik kf v_fc[w their petition pending

k_\ N_`i[ =`iZl`kyj [\Z`j`fe `e Koons v. Attorney General, No. 23-1900. See Pet.

5.2 But the en banc standard looks to whether a present conflict exists among the

circuits, not whether a hypothetical one may arise in the future. Plaintiffs cite no

similar instances in which this Court has held petitions for rehearing pending the

resolution of cases in other courts of appeals, let alone where those other cases

involved different MkXk\jy cXnj. JcX`ek`]]jy gifgfjXc _Xj ef c`d`k`e^ gi`eZ`gc\( Xj

the logic of their request would seem to apply equally to other pending sensitive-

place appeals, see, e.g., Kipke v. Moore, No. 24-01799 (4th Cir.), or even to other

pending Second Amendment appeals more generally.

Consider what would happen in the interim while waiting for the Third

Circuit (and possibly others) to rule. As cfe^ Xj JcX`ek`]]jy g\k`k`fe i\dX`ej

pending, the mandate remains with this Court. See Fed. R. App. P. 41(b). And as

long as the mandate remains with this Court, the State remains bound by the

[`jki`Zk Zflikyj `ealeZk`fe* This Court declined a similar request in Coalition for

2
Plaintiffs also asked the Court to hold their petition for Antonyuk, see Pet. 14, but,
as noted, the Second Circuit has since issued an amended opinion in that case.

14
 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 20 of 23

Economic Equity v. Wilson, 122 F.3d 718 (9th Cir. 1997), after a panel vacated an

injunction that had been entered against California. In denying a subsequent

motion to stay the mandate, the Court explained that a stay vwould be tantamount

to extending the preliminary injunction entered by the district court . . . , which we

have already held rests on an erroneous legal premise.w Id. at 719. And the Court

held k_Xk vthe State has demonstrated the clear possibility of irreparable injury to

its citizens if a stay of the mandate is granted; it is clear that a state suffers

irreparable injury whenever an enactment of its people or their representatives is

enjoined*w Id. The same is true here. Each day that the mandate sits with this

Court, the State is barred from enforcing duly enacted laws that the panel held

were likely constitutional. That these laws promote a critical public safety interest

further le[\ijZfi\j k_\ `dgfikXeZ\ f] [\ep`e^ JcX`ek`]]jy g\k`k`fe \og\[`k`fljcp*

CONCLUSION

For the foregoing reasons, the Court should deny the petition for rehearing

and rehearing en banc.

15
 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 21 of 23

Respectfully submitted,
Dated: October 29, 2024
/s/ Neal Kumar Katyal
ANNE E. LOPEZ NEAL KUMAR KATYAL
)RRMPLDV .DLDP@J ME RGD 9R@RD ME /@U@HXH DANA A. RAPHAEL
KALIKOxIHF;HC D. FERNANDES Special Deputy Attorneys General
Solicitor General HOGAN LOVELLS US LLP
STATE OF HAWAIxI 555 Thirteenth Street N.W.
DEPARTMENT OF THE ATTORNEY GENERAL Washington, D.C. 20004
425 Queen Street (202) 637-5600
Honolulu, HI 96813 neal.katyal@hoganlovells.com
(808) 586-1360
kaliko.d.fernandes@hawaii.gov BEN GIFFORD
Special Deputy Attorney General
MARY B. MCCORD INSTITUTE FOR CONSTITUTIONAL
RUPA BHATTACHARYYA ADVOCACY & PROTECTION
SHELBY B. CALAMBOKIDIS Georgetown University Law Center
ALEXANDRA LICHTENSTEIN PO Box 211178
Special Deputy Attorneys General Brooklyn, NY 11221
INSTITUTE FOR CONSTITUTIONAL (202) 662-9835
ADVOCACY & PROTECTION bg720@georgetown.edu
Georgetown University Law Center
600 New Jersey Avenue N.W.
Washington, D.C. 20001
(202) 661-6607
mbm7@georgetown.edu
 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 22 of 23

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Form 8. Certificate of Compliance for Briefs

Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf

9th Cir. Case Number(s) 23-16164

I am the attorney or self-represented party.

3,673 0
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I certify that this brief (select only one):

" complies with the word limit of Cir. R. 32-1.

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s/Neal Kumar Katyal 10/29/2024

Signature Date
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 Case: 23-16164, 10/29/2024, ID: 12912797, DktEntry: 109, Page 23 of 23

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on October 29, 2024.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/ Neal Kumar Katyal

Neal Kumar Katyal