A recent Second Amendment roundup at Reason spotlights a dissent by Judge R. Nelson from a Ninth Circuit case, Yukutake. The dissent takes up a question that has split lower courts: what to make of footnote 9 in the Supreme Court's 2022 Bruen decision.
Judge Nelson's dissent argues that footnote 9 is not a carve-out from the text-and-history test that Bruen established. According to the roundup, the dissent thoroughly analyzes the footnote and pushes back against readings that would allow courts to bypass the historical inquiry when evaluating gun restrictions.
The disagreement matters because Bruen's framework requires governments to show a historical tradition of regulation. If footnote 9 were treated as an exception, it could give courts a way to uphold certain laws without that showing. The Reason piece presents the dissent as a forceful counter to that interpretation.