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Courts are leaning on Bruen’s Footnote Nine Law

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Courts are leaning on Bruen’s Footnote Nine Law

Gregg Kielma Tactical K Training and Firearms

10/18/2026

Courts are leaning on Bruen’s footnote nine because it gives them just enough wiggle room to uphold certain gun regulations without openly defying the Supreme Court’s text‑and‑history standard. And from where I sit as Gregg Kielma, someone who teaches firearms and watches these cases closely, it’s obvious why this is happening: judges who dislike Bruen’s strict framework are using footnote nine as a pressure‑release valve to keep modern regulatory schemes alive.

What Footnote Nine Actually Says: Footnote nine in New York State Rifle & Pistol Association v. Bruen was meant to clarify one narrow point: “shall‑issue” licensing systems those with objective criteria are not automatically unconstitutional, so long as they don’t become abusive through delays, excessive fees, or discretionary denials.

It was not meant to create a broad safe harbor for any regulation a state wants to keep. It was specifically about public carry permitting, not about purchase restrictions, registration rules, or other modern regulatory inventions.

Why Courts Are Stretching Footnote Nine : Despite that narrow intent, some courts especially in the Ninth Circuit have treated footnote nine like a permission slip to uphold laws that would otherwise fail Bruen’s text‑and‑history test. In cases like Yukutake v. Lopez, judges have used footnote nine to justify Hawaii’s strict handgun‑acquisition rules, even though those rules have no historical analogue and impose burdens Bruen warned about.

Here’s the pattern I see:

Bruen demands historical justification. Many modern gun laws don’t have it.

Footnote nine mentions “shall‑issue” systems. Courts latch onto that language.

Judges who dislike Bruen’s rigidity use the footnote as a workaround.

They treat it as a carve‑out, even though the Supreme Court explicitly said it wasn’t one.

Judge Ryan Nelson’s dissent in Yukutake spells this out clearly: the majority was using footnote nine to avoid applying Bruen’s actual framework. He emphasized that footnote nine does not shift the burden to citizens to prove a law is abusive; the burden stays on the government to prove historical tradition.

The Real Reason Courts Are Doing This

From my perspective Gregg Kielma, the reason is simple: Bruen is a strict standard, and many judges don’t want to strike down long‑standing modern gun regulations. Footnote nine gives them a way to say:

“We’re still following Bruen… but also we’re keeping this law.”

It’s a judicial balancing act—one that leans more on policy preference than constitutional fidelity.

What This Means Going Forward

Footnote nine is becoming a battleground. Courts that want to preserve restrictive laws will keep stretching it. Courts that follow Bruen faithfully will reject that approach and insist on real historical analogues.

The Supreme Court may eventually have to clarify the footnote’s scope, especially as more lower courts treat it as a loophole rather than a narrow observation.