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VanDyke Bemoans Rehearing Denial in Concealed-Carry Case
Jurist, Joined by Five Other Circuit Judges, Pens Dissent to Order Denying En Banc Review of Case Which Held That Substantial Parts of California, Hawaii Laws Banning Firearms in Many Public Places Are Constitutional
By Kimber Cooley, associate editor
Ninth U.S. Circuit Court of Appeals Judge Lawrence VanDyke yesterday decried the denial of a petition for an en banc rehearing in a case in which a three-judge panel in 2024 decision upheld substantial portions of a California law banning concealed-carry permit holders from bringing guns onto many public places, saying that the opinion had distorts the historical analysis required by U.S. Supreme Court precedent governing Second Amendment cases.
At issue is an injunction, issued by then-District Court Judge Cormac J. Carney of the Central District of California (now on inactive senior status), banning enforcement of the law, codified at Penal Code §2623. The injunction was reversed as to parks, places of amusement, bars and restaurants that sell alcohol, and certain other locations, but upheld as to places of public gatherings and worship, medical facilities, public transportation facilities, and other areas.
In an opinion authored by Senior Circuit Judge Susan P. Graber, and joined in by Senior Circuit Court Judge Mary M. Schroeder and Circuit Judge Jennifer Sung (all appointees of Democratic presidents), the panel found that historical regulation restricting the carrying of firearms in those places supported the ban under the principles established in the 2022 U.S. Supreme Court case of New York State Rifle & Pistol Association Inc v. Bruen.
The panel’s decision, which addressed consolidated cases involving the California law and a separate challenge to a similar Hawaii law, further declared that laws prohibiting carrying firearms onto private property without the owner’s consent do not run afoul of the Second Amendment and upheld certain provisions of a similar Hawaii law.
Dissenting Opinions
Circuit Judges Consuelo M. Callahan, Sandra S. Ikuta, Ryan D. Nelson, Kenneth K. Lee, and Patrick J. Bumatay, each of whom was appointed by a Republican president, joined in the dissenting opinion authored by VanDyke, an appointee of Republican President Donald Trump. VanDyke wrote:
“With their new public carry bans, Hawaii and California have effectively disarmed law-abiding Hawaiians and Californians from publicly carrying during most of their daily lives. Bruen said the Second Amendment protects a ‘general right to publicly carry arms for self-defense.’…It is hard to see how any such right ‘generally’ applies in Hawaii and California after our court has sanctioned laws that flip the default rule into a ‘general right’ not to carry on private property or most public property other than streets and sidewalks…[T]he panel’s analysis fails to follow the Supreme Court’s text-history-and-tradition guidance at almost every turn. Because I believe the Second Amendment does not countenance that approach, I respectfully dissent from the denial of rehearing en banc.”
Circuit Judge Daniel P. Collins, joined by Circuit Judge Daniel Aaron Bress, both Trump appointees, wrote separately also to dissent from the denial, saying:
“For many of the same reasons set forth by Judge VanDyke, I agree that the panel in these cases failed to apply the proper standards for evaluating Second Amendment challenges,…and that, in doing so, the panel largely vitiated the ‘the right to bear commonly used arms in public’ that the Supreme Court recognized in Bruen….We therefore should have reheard these important cases en banc.”
VanDyke’s View
VanDyke pointed to the Bruen decision as setting forth the guiding principles for courts addressing Second Amendment challenges. Justice Clarence Thomas authored that decision in which he explained:
“When the Second Amendment’s plain text covers…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.”
VanDyke’s dissent largely centers on a critique that the panel “broadly analogiz[ed] to unrelated historical laws” to justify upholding the bans. He wrote:
“First, even in instances where the same or similar properties existed at the Founding and the government pointed to no historical prohibitions for those locations, the panel nonetheless upheld the states’ modern bans….Second and relatedly, the panel discounted the non-regulation of the same or similar historical properties by pointing to purported changes in how society now perceives those properties. And third, the panel abstracted at too high a level of generality, pulling principles out of historical precedent with little to no correlation between ‘how and why’ these historical regulations affected the right to bear arms in self-defense….”
Ban From Bars
Turning to the ban on carrying firearms in places that serve alcoholic beverages, he remarked:
“Take one example from the panel’s opinion: its analysis of California’s and Hawaii’s carry prohibitions in bars and restaurants that serve alcohol….Because the panel could point to no laws from [the time of the founding of the country] outlawing the carrying of firearms in those locations, the panel’s analysis should have stopped there.
“Instead, the panel looked to a panoply of laws separating the storage of gunpowder from bars, limiting the carrying of firearms while intoxicated, and restricting militiamen from alcohol….From this broader hodgepodge, the panel then abstracted a general principle: ‘governments have regulated in order to mitigate the dangers of mixing alcohol and firearms.’ ”
The jurist continued:
“The panel used another feint to ignore the lack of historical regulations of locations that have existed since the Founding. The panel looked instead at how those types of locations might have changed in the intervening years and asked whether those Founding-era categories are sufficiently similar to their ‘modern’ equivalents. By adding this step, the panel introduced yet one more path permitting our court to broadly analogize from historical laws that on first blush seem far afield from the modern law, especially as compared to the glaring lack of historical regulation of the same locations now being banned.”
Public Parks
As to parks, he acknowledged that “it’s certainly true that the Founders didn’t ride ten-speeds or talk on cell phones in public parks,” but said that “there is ample historical evidence of public parks used for recreational purposes in the colonial and Founding eras.” He added:
“To compensate for the lack of any historical bans in public parks, the panel….redefined its inquiry—rather than looking at the historical precedent at the time of the Founding, the panel looked to precedent from the mid- to late-19th century, when, according to the panel, ‘green spaces began to take the shape of a modern park.’….After reframing the inquiry in this way, the panel then cited a panoply of laws restricting firearms in public parks, only one of which—New York City’s—was dated prior to 1868, when the Fourteenth Amendment was ratified….But apparently because similar public parks didn’t exist at the Founding (per the panel), the panel felt authorized to derive its historical tradition from whatever time period the panel concluded that such spaces started to exist in their ‘modern’ form.”
VanDyke asserted:
“The panel’s approach in these cases…further entrenched our court’s practice of analogizing at too high a level of generality. The panel extracted very broad principles from the historical record that could support the constitutionality of almost any firearms restriction. Whenever the panel analogized to historical regulations, it found Hawaii’s or California’s laws constitutional….This appearance of foreordained outcomes is a strong hint that something is wrong with how the panel analogized. Such predetermined results happen because the panel inevitably extracted analogies at too high a level of generality, precisely what the Supreme Court…instructed lower courts not to do.”
The case is Wolford v. Lopez, 23-16164.
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