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Ninth Circuit Partially Upholds Enjoining of Gun Law
Panel Affirms Preliminary Relief Against Portions of California Statute Prohibiting Persons With Permits to Carry Concealed Weapons From Having Firearms at Certain Locations
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals on Friday affirmed the issuance of a preliminary injunction against enforcement of certain portions of a 2023 California law prohibiting holders of permits to carry concealed weapons from bringing firearms onto specified locations, finding that the restrictions are consistent with historical tradition as to some delineated areas but not others.
Specifically, the court upheld the enjoining of the enforcement of portions of Senate Bill 2, codified as Penal Code §26230, which prohibit the licensees from carrying firearms at places of worship, public gatherings requiring a permit, financial institutions, hospitals, and on public transport.
The panel reversed the injunction as to parks, playgrounds, places of amusement, bars and restaurants that serve alcohol, and the parking areas associated with these places.
The court also held that a law may require the consent of a property owner before a person may enter the premises with a gun, but that a provision of the bill prohibiting access to “[a]ny other privately owned commercial establishment that is open to the public, unless the operator of the establishment…posts a sign…indicating that licenseholders are permitted to carry firearms on the property” runs afoul of Second Amendment principles.
On Sept. 12, 2023, concealed-carry permit holders Reno May, Anthony Miranda, Eric Hans, Gary Brennen, Oscar A. Barretto, Isabelle R. Barretto, Barry Bahrami, Pete Stephenson, Andrew Harms, Jose Flores, Sheldon Hough, and several gun-advocacy groups filed suit against Attorney General Rob Bonta, challenging the enforcement of the bill on constitutional grounds.
Plaintiffs Marco Carralero, Garrison Ham, Michael Schwartz, Orange County Gun Owners PCA, San Diego County Gun Owners PAC, California Gun Rights Foundation, and Firearms Policy Coalition Inc. also filed a complaint, on Sept. 26, 2023, against Bonta seeking declaratory and injunctive relief.
The cases were both assigned to then-District Court Judge Cormac J. Carney (now retired) of the Central District of California.
Carney’s View
On Dec. 20, 2023, Carney granted motions by both sets of plaintiffs for preliminary relief from all challenged portions of the bill. Carney wrote:
“California recently passed a law, Senate Bill 2, that limits the public places where people with concealed carry permits may carry their handguns to defend themselves and their families. To obtain such a permit in California, a person must go through a rigorous screening process….Even with those stringent requirements, California will not allow concealed carry permitholders to effectively practice what the Second Amendment promises. SB2’s coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court….SB2 turns nearly every public place in California into a ‘sensitive place,’ effectively abolishing the Second Amendment rights of law-abiding and exceptionally qualified citizens to be armed and to defend themselves in public.”
The cases were consolidated on appeal with cases challenging similar Hawaii legislation.
Graber’s Opinion
Senior Circuit Judge Susan P. Graber wrote the opinion, affirming and reversing in part Carney’s order. Senior Circuit Judge Mary M. Schroeder and Circuit Judge Jennifer Sung joined in the opinion.
Graber came to her clonclusion with some reluctance, saying:
“Having concluded the historical analysis required by…the Supreme Court’s…Second Amendment cases, we close with a few general observations….[T]aking a step back from the historical analysis, the lists of places where a State likely may ban, or may not ban, the carry of firearms appear arbitrary. A State likely may ban firearms in museums but not churches; in restaurants but not hospitals; in libraries but not banks. The deep historical analysis required by the Supreme Court provides the missing link, but the lack of an apparent logical connection among the sensitive places is hard to explain in ordinary terms. In addition, the seemingly arbitrary nature of Second Amendment rulings undoubtedly will inspire further litigation as state and local jurisdictions attempt to legislate within constitutional bounds.”
Bruen Analysis
Graber pointed to the 2022 U.S. Supreme Court opinion in New York State Rifle & Pistol Association Inc v. Bruen as setting forth the guiding principles. Justice Clarence Thomas authored that decision in which he explained:
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
Graber noted that Bruen acknowledged that “[o]ur Nation has a clear historical tradition of banning firearms at sensitive places,” and considered the challenged restrictions in Senate Bill 2 in light of the history of similar bans.
Because the restrictions at issue are embedded in state law, Graber said that “[w]e…agree with the Second Circuit that, at least when considering the ‘sensitive places’ 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.”
The judge remarked that “[o]ne way that Defendants can show a historical tradition is by establishing that, when a type of place first arose, or first arose in modern form, states and municipalities began to regulate the possession of firearms at that type of place, the regulations were considered constitutional at the time, and the regulations were comparable to a tradition of regulating a similar place or places in the earlier years of the Nation.”
She added that “historical regulations need not be a close match to the challenged law; they need only evince a principle underpinning our Nation’s historical tradition of regulating firearms in places relevantly similar to those covered by the challenged law.”
Private Property Rule
As to the portion of the law requiring signage on private property, Graber wrote:
“[It] is the right of a private property owner to exclude others, including those bearing arms….Nothing in the text of the Second Amendment or otherwise suggests that a private property owner—even owners who open their private property to the public—must allow persons who bear arms to enter.”
The jurist also found that “the Nation has an established tradition” of allowing laws prohibiting the carrying of firearms on private property without consent, but reasoned:
“[W]e conclude that California’s law falls outside the historical tradition. As noted at the outset of this section, California prohibits the carry of firearms on private property only if the owner has consented in one specific way: posting signs of a particular size. We find no historical support for that stringent limitation. Although two of the [historical] laws…required a person to obtain consent in writing, all of the other laws allowed a person to obtain consent in any manner. None of the laws forbade a person from obtaining permission only by convincing the owner to post signs of a specific size. Nor do modern circumstances appear to justify California’s imposing a much more stringent consent requirement; ordinary signs existed in 1791, in 1868, and today.”
She continued:
“We acknowledge that our primary holding—that a national tradition likely exists of prohibiting the carrying of firearms on private property without the owner’s oral or written consent—differs from the decisions by the Second Circuit and some district courts….[W]e we respectfully disagree with their…analyses.”
Historical Support
As to parks, playgrounds, places of amusement—such as zoos, museums, and libraries—and bars and restaurants that serve alcohol, Graber looked to the history of any regulatory schemes that governed these locations at the time they began to emerge in the country. She reasoned that the historical presence of regulations restricting the carrying of firearms in those places supported the ban in Senate Bill 2.
Turning to the parking areas, she opined:
“Some parking areas—such as a parking garage located in the basement of a courthouse or jail—are likely so intertwined with the main structure as to be considered part of the sensitive area itself….We agree with those courts that have held that, depending on the factual circumstances, firearms may be prohibited at some parking areas connected to sensitive places.”
She found no historical support for banning concealed-carry permit holders from bringing firearms onto the premises, or related parking areas, of places of worship, public gatherings, financial institutions, hospitals, or public transport.
Having concluded that the plaintiffs are likely to succeed on these Second Amendment challenges, Graber concluded that “each claim alleges a violation of a constitutional right, which strongly suggests” that irreparable harm will result absent preliminary relief and that the equities weigh in favor of enjoining the problematic provisions.
Graber declared that “[w]e…are unpersuaded that the district court[] abused [its] discretion in granting preliminary relief” as to the highlighted provisions.
The cases are Wolford v. Lopez, 23-16164.
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