By Tanya Metaksa
What’s New — United States Supreme Court: Sept. 28 long conference summary; New York: Second Circuit: Defending Education v. Croton-Harmon Union Free School District: Docket No: 24-1900: Although this is not a 2A case, the court held that an organization may sue on behalf of its members under § 1983 when it satisfies the traditional test established in Hunt v. Washington State Apple Advertising Commission. An important procedural matter for 2A cases: Hawaii: Ninth Circuit: En Banc: Yukutake v. Lopez, No. 1:19-cv-00578-JMS-RT: As of the 6-5 en banc decision, Hawaii may enforce both the 30-day handgun permit-expiration provision and the specified in-person firearm-inspection requirement; Delaware: Third Circuit: Rigby v. Jennings: Case 1:21-cv-01523-MN: Decision:Filed 09/10/26 Judge Maryellen Noreika. A new Delaware law purports to “fix” this decision.
Week ending September 25
A review of the week’s available federal-court and Supreme Court materials did not reveal a new Supreme Court merits ruling, certiorari grant or denial squarely presenting a Second Amendment question, federal circuit merits opinion, or consequential preliminary-injunction ruling concerning the constitutional validity of a firearms restriction. However an en banc 6-5 ruling in Yukutake v. Lopez that reversed the district court and the 3-judge panel’s injunction will probably be on its way to SCOTUS seeking certiorari.
United States Supreme Court
Although the Court met on Sept. 28 for a “long conference:, the next court order list will be published on Oct. 5.
US Court of Appeals
New York: Second Circuit
Defending Education v. Croton-Harmon Union Free School District: Docket No: 24-1900: Decided: September 15, 2026: Opinion By: Judge Michael H. Park: Panel: Judges Michael H. Park, Reena Raggi, and Raymond J. Lohier Jr.
Originating Case: Parents Defending Education v. Croton-Harmon Union Free School District, Case No. 7:24-cv-04485: U.S. District Court for the Southern District of New York, White Plains Division: District Judge: Cathy Seibel
Status: Reversed and remanded
Holding
The U.S. Court of Appeals for the Second Circuit reversed the district court’s dismissal of Defending Education’s § 1983 action for lack of subject-matter jurisdiction and remanded for further proceedings.
The court held that an association may assert associational standing in an action brought under 42 U.S.C. § 1983 if it satisfies the familiar three-part test of Hunt v. Washington State Apple Advertising Commission. In so holding, the court overruled Aguayo v. Richardson to the extent that Aguayo categorically barred organizations from asserting § 1983 claims on behalf of their members.
The court did not decide the merits of the First Amendment challenge, nor did it conclusively determine that Defending Education has standing on the present record. Instead, it returned the case to the district court to apply the governing associational-standing framework and to conduct any factual inquiry needed to resolve the jurisdictional question.
Background
Defending Education brought a § 1983 action challenging Croton-Harmon Union Free School District policies that regulate student speech and conduct. The challenged policies include provisions concerning student speech, discrimination, harassment, and bullying.
The district court denied preliminary relief and dismissed the case for lack of subject-matter jurisdiction. The dismissal rested on the Second Circuit’s then-existing precedent in Aguayo v. Richardson, which the district court understood to prohibit an organization from asserting associational standing under § 1983.
Second Circuit Decision
The Second Circuit reversed the jurisdictional dismissal and held that § 1983 does not impose a categorical bar on associational standing.
Associational Standing
The court held that an organization may sue on behalf of its members under § 1983 when it satisfies the traditional test established in Hunt v. Washington State Apple Advertising Commission. Under that test, an association must show:
- At least one member would otherwise have standing to sue in that member’s own right
- The interests the association seeks to protect are germane to the organization’s purposes
- Neither the claims asserted nor the relief requested requires the participation of individual members
- The panel concluded that Aguayo could no longer be read to impose a distinct, categorical prohibition on organizational § 1983 suits. To the extent Aguayo said otherwise, the court overruled it.
Scope of the Ruling
The appellate decision resolves a threshold standing question. It does not determine whether any particular student member has suffered a concrete and imminent constitutional injury, whether Defending Education can satisfy every element of the Hunt test, or whether the challenged school-district policies violate the First Amendment.
On remand, the district court must determine whether Defending Education identifies a member with standing in that member’s own right and whether the organization satisfies the remaining requirements for associational standing. The district court may conduct any further factual inquiry necessary to make that determination.
Legal Significance
The decision removes a Second Circuit-specific obstacle to representative constitutional litigation under § 1983. Organizations in Connecticut, New York, and Vermont may now bring qualifying § 1983 claims in their own names on behalf of their members, subject to the ordinary requirements of Article III and Hunt.
The decision aligns the Second Circuit more closely with Supreme Court associational-standing doctrine and with the practice in other federal circuits. It is particularly relevant to membership-based civil-rights organizations that seek to challenge governmental policies affecting their members.
Implications for Constitutional Litigation
The ruling may be significant to organizations pursuing First Amendment, Second Amendment, parental-rights, religious-liberty, equal-protection, and other constitutional claims under § 1983.
The availability of associational standing does not eliminate the need to establish a concrete injury to at least one member. Nor does it exempt an organization from proving that its claims are germane to its mission or from showing that individual member participation is unnecessary. But the decision rejects the proposition that § 1983 alone disables an association from seeking representative relief.
The case therefore concerns access to federal court rather than the constitutional validity of the underlying school policies. Its principal holding is that the ordinary Hunt framework—not a categorical § 1983 bar—governs associational standing in the Second Circuit.
Current Posture
The Second Circuit reversed the Southern District of New York’s jurisdictional dismissal and remanded the case for further proceedings.
The district court must now apply the Hunt associational-standing test, determine whether Defending Education can establish Article III standing through one or more members, and address any further jurisdictional or merits issues as appropriate. The First Amendment merits of the challenge remain unresolved. Circuit
Hawaii: Ninth Circuit: En Banc
Yukutake v. Lopez, No. 1:19-cv-00578-JMS-RT (D. Hawaii), filed October 24, 2019. The principal counsel for the plaintiffs is Alan A. Beck of the Law Offices of Alan Beck, with Stephen D. Stamboulieh also appearing for the plaintiffs. This civil-rights action seeks declaratory and injunctive relief against enforcement of Hawaii laws that burden law-abiding citizens’ ability to acquire and possess firearms, in violation of the Second and Fourteenth Amendments. The District of Hawaii held both challenged provisions unconstitutional and permanently enjoined their enforcement. A Ninth Circuit three-judge panel unanimously affirmed that merits result on March 14, 2025, while remanding for the district court to conform the injunction to Hawaii’s intervening statutory amendments; the panel opinion was later vacated when the Ninth Circuit granted rehearing en banc.law.justia+1
In a Sept. 22 opinion, the en banc Ninth Circuit reversed the district court’s injunction and held that Hawaii’s challenged firearm-acquisition requirements do not violate the Second Amendment. It remanded the case for further proceedings.
Holding
In the Sept. 22 opinion, the en banc court upheld:
- Hawaii Revised Statutes § 134-2(e), which voids a handgun-acquisition permit unless the permittee uses it within 30 days; and
- Hawaii Revised Statutes § 134-3, which requires persons acquiring firearms in specified circumstances to take the firearm to a police station for inspection and provide registration information.
The court therefore displaced the district court’s 2021 permanent injunction, which had held the provisions facially unconstitutional and prohibited their enforcement. It also vacated the contrary 2025 three-judge-panel decision that had affirmed the injunction.
Majority’s rationale :
Judge Owens wrote for the en banc majority. The court treated Hawaii’s licensing system as a nondiscretionary, objective shall-issue regime and read Bruen’s footnote 9 as establishing that non-abusive shall-issue requirements are presumptively constitutional.
The majority did not conduct a conventional Bruen text-and-historical-tradition analysis of each provision. Instead, it framed the controlling question as whether the 30-day permit-use requirement and limited in-person inspection requirement had been used for “abusive ends” that effectively deny ordinary citizens their Second Amendment rights. It held that the plaintiffs had not made that showing.
In the majority’s view:
- The 30-day deadline is a reasonable procedural condition rather than a material barrier to acquiring a handgun.
- The police-station inspection requirement applies only in enumerated circumstances under the amended statute and amounts to a brief administrative step to verify basic firearm information.
- Neither requirement materially impedes law-abiding citizens from acquiring firearms. Accordingly, the en banc court characterized both provisions as “modest, procedural burdens,” not constitutionally abusive restrictions.
Dissents
Judge R. Nelson dissented, joined by Judges Bress and VanDyke, with Judges Bade and Forrest joining most of his opinion. He maintained that firearm acquisition is conduct covered by the Second Amendment’s text and that Bruen places the burden on Hawaii—not the plaintiffs—to establish a relevant historical tradition supporting the restrictions.
The Nelson dissent concluded that Hawaii had identified no representative historical analogue for either the short permit-use deadline or the acquisition-linked police-station inspection mandate. It would therefore have affirmed the district court’s merits ruling that the provisions violate the Second Amendment.
Judge Forrest separately agreed with the merits dissent but would have remanded for the district court to narrow the scope of its injunction under Trump v. CASA, Inc. so that the relief extended no further than necessary to afford complete relief to the named plaintiffs. Judge VanDyke separately proposed broader bright-line Second Amendment rules and concluded that Hawaii’s outlier restrictions were unconstitutional.
Bottom line
As of the en banc decision, Hawaii may enforce both the 30-day handgun permit-expiration provision and the specified in-person firearm-inspection requirement. The operative Ninth Circuit rule is that these requirements are presumptively permissible components of a non-abusive, objective shall-issue licensing regime, rather than restrictions requiring the State to satisfy Bruen’s ordinary historical-analogue inquiry. Attorney Alan Beck was also the attorney in the Wolford v. Lopez case that was decided this year in favor of Wolford by the US Supreme Court. My money is on Beck taking this to SCOTUS for certiorari.
District Court
Delaware: Third Circuit
Rigby v. Jennings: Case 1:21-cv-01523-MN: Decision: Filed 09/10/26 Judge Maryellen Noreika. A week after Gov. Matt Meyer signed legislation intended to “clean up” Delaware’s ghost gun law, Judge Noreika struck down the original statute as unconstitutional.
Enacted in 2021, House Bill 125 generally sought to criminalize the distribution, possession, and manufacture of unserialized firearms, including 3-D printed firearms, and unfinished firearm components. It would also have banned the distribution of computer files used to create 3-D printed guns.
However, a federal injunction issued in September 2022 prevented the law from taking effect on the grounds that the ban likely infringed on citizens’ Second Amendment rights because the right to keep and bear arms includes manufacturing them.
The 2021 law also lacked a clear path for people owning unserialized guns or parts to comply with its mandates. The statute has been the subject of ongoing litigation challenging its validity. That issue was decided when the United States District Court for the District of Delaware found it unconstitutional. To read the court’s decision, click here
However, just recently Gov. Meyer signed House Bill 418. The legislation’s Democratic sponsors said it was intended to “clean up” issues with the ghost gun law struck down by yesterday’s court action. The new law creates a protocol for individuals who already possess unnumbered firearms to comply by having them serialized through a federally licensed dealer or rendering them inoperable. The measure would continue to prohibit the possession of any firearm lacking a serial number, with violators facing a class D or E felony.
During a House Judiciary Committee meeting earlier this year, committee member State Rep. Jeff Hilovsky (R-Long Neck, Oak Orchard) challenged the measure. “How is this possibly constitutional?” he asked. “Physical seizure of personal property without any remedy or compensation. Depriving [a citizen] of personal property without a hearing [violating]…due process.”
In a later exchange with Rep. Hilovsky, the bill’s prime sponsor, State Rep. Kendra Johnson (D-Bear, New Castle) said: “Constitutional versus unconstitutional, I think that is a point of reference or a frame of mind. I understand that you believe it to be unconstitutional. I don’t see it that way…We see this in two very different ways.”
In testimony before the committee, Delaware State Sportsmen’s Association President Jeff Hauge testified that the new legislation also missed the mark. He noted that the U.S. Supreme Court decision in New York State Rifle & Pistol Club v. Bruen, which was issued the year after Delaware’s original ghost gun law was enacted, fundamentally changed how the constitutionality of firearms laws is assessed. He said under that standard, House Bill 418
Both ghost gun laws were passed on the strength of votes by House and Senate Democrats. It is not yet clear what impact this court ruling will have on the viability of the new ghost gun statute.
Although HB 418 attempts to solve the earlier law’s practical compliance problem, it continues to criminalize possession of unserialized firearms. Its legal viability remains unresolved, but the district court’s rejection of Delaware’s underlying theory suggests that the new statute may face a similar constitutional challenge.
