As we reported in October, several gun owners filed suit against the State of California, which was set to enact sweeping gun control legislation banning concealed carry of firearms in almost every public location in California: Lawsuit Challenges California’s Ban on Firearms in ‘Sensitive Places’ Like Stadiums, Public Transit and a ‘No-Carry Default Provision’ for Private Property.As we explained:
A lawsuit filed on September 26 on behalf of several California gun owners challenges the state’s ban on concealed carry in “sensitive places” and private property generally. The plaintiffs, concealed carry license holders, seek an injunction allowing them to carry at the challenged locations.The California Attorney General’s Office is “reviewing the complaint” and reaffirmed its “commit[ment] to passing and defending commonsense, constitutional gun laws that will save lives” in response to questions from Legal Insurrection.The ban covers much public property, including parks and mass transit, as well as casinos, stadiums, and arenas. The ban also has a “no-carry default provision that prohibits carry on all private commercial property open to the public,” unless the proprietor expressly consents to on-property carry.
The Complaint alleged that California’s new law violates the Second Amendment and the U.S. Supreme Court’s recent Bruen case, which presumptively allows concealed carry unless a law restricting it comports with the nation’s tradition of firearm regulation:
The complaint alleges numerous provisions of the ban run counter to New York State Rifle & Pistol Association v. Bruen, a landmark Supreme Court decision that struck down a New York law effectively banning carry outside the home. Bruen provided the framework needed to assess the constitutionality of gun laws like California’s:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.
“Bruen,” according to the complaint, “has already established that the Second Amendment covers plaintiffs’ proposed conduct here—carrying arms publicly for self-defense and other lawful purposes.” The burden thus shifts to California to show the ban comports “with the Nation’s historical tradition of firearm regulation.”
California cannot meet this burden, the complaint argues, because “sensitive place” restrictions must be “sufficiently analogous to a ‘well-established and representative historical analogue,’” of which “[t]he Court has identified only three” possibly relevant to the ban from the Founding Era: “legislative assemblies, polling places, and courthouses.”
Not only did the gun owners file a federal court Complaint, but they also filed a “Motion for Preliminary Injunction,” which the federal district court, after a hearing on the injunction, granted on December 20, 2023, effectively blocking the new law from going into effect.
From the court’s Order Granting Plaintiffs’ Motion for Preliminary Injunction:
California will not allow concealed carry permitholders to effectively practice what the Second Amendment promises. [The new law’s] coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court. The law designates twenty-six categories of places, such as hospitals, public transportation, places that sell liquor for on-site consumption, playgrounds, parks, casinos, stadiums, libraries, amusement parks, zoos, places of worship, and banks, as “sensitive places” where concealed carry permitholders cannot carry their handguns. 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.[emphasis added]
Read the whole Order. Of special note, the court cited the Second Circuit’s recent case, which we reported on here, which struck down New York’s attempt to ban concealed carry in houses of worship:
The parties agree that in the Founding era, there were “statutes all over America that required bringing guns into churches, and sometimes to other public assemblies.”* * *Even giving little weight to the mandatory carry laws from the Founding era, the government fails to present evidence of a history and tradition of prohibiting trained and vetted permitholders from carrying handguns for self-defense in places of worship where in this day and age they are increasingly likely to meet confrontation….The Second Amendment gives law-abiding individuals the right to carry firearms for self-defense outside the home, and “[n]othing in the Nation’s history or traditions presumptively closes the door on that right across every place of worship or religious observation.” [quoting the Second Circuit case striking down New York’s ban on concealed carry in houses of worship; emphasis in original].
From a Reuters article about the court’s Order granting the injunction: US federal judge blocks California law barring guns in public:
A California law that would have banned the carrying of guns in most public places as of Jan. 1 was temporarily blocked by a federal judge on Wednesday.U.S. District Judge Cormac Carney of the Central District of California wrote in his preliminary injunction that the law would “unconstitutionally deprive” concealed carry permit holders “of their constitutional right to carry a handgun in public for self-defense.”The California law, Carney wrote, “is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court.”California’s Attorney General Rob Bonta, who was listed in his official capacity as the defendant in the lawsuit, said in a statement that his office would appeal the decision.
Of course, California’s AG did appeal, and he also filed an emergency motion with the Ninth Circuit U.S. Court of Appeals for an immediate “administrative stay” pending the Ninth Circuit’s consideration of his motion for stay pending appeal , which, as we reported, an “emergency motions panel” of the Ninth Circuit granted.
The Order granting this “administrative stay” is noteworthy for its terseness:
The request for an administrative stay contained within appellant’s motion for a stay pending appeal is granted. The motion for a stay pending appeal and the supplements, responses and replies thereto, are otherwise referred to the panel assigned to decide the merits of these appeals.The district court’s preliminary injunction issued on December 20, 2023, is temporarily stayed pending resolution of the motion for a stay pending appeal by the merits panel. In granting an administrative stay, we do not intend to constrain the merits panel’s consideration of the merits of these appeals in any way.The existing briefing schedules remain in effect.[emphasis added; citations omitted for clarity]
Again from Reuters, this time on the “administrative stay”: US appeals court allows California to bar guns in most public places:
A federal appeals court on Saturday cleared the way for a California law that bans the carrying of guns in most public places to take effect at the start of 2024, as the panel put on hold a judge’s ruling declaring the measure unconstitutional.The 9th U.S. Circuit Court of Appeals suspended a Dec. 20 injunction issued by a judge who concluded the Democratic-led state’s law violated the right of citizens to keep and bear arms under the U.S. Constitution’s Second Amendment.The three-judge panel issued an administrative stay that temporarily put the injunction on hold until a different 9th Circuit panel could consider pausing the lower-court judge’s order for even longer while the litigation plays out….Under California’s new law, people could not carry concealed guns in 26 categories of “sensitive places” including hospitals, playgrounds, stadiums, zoos and places of worship, regardless of whether they had permits to carry concealed weapons.The law, Senate Bill 2, also barred people from having concealed guns at privately owned commercial establishments that are open to the public, unless the business’s operator posts a sign allowing license holders to carry guns on their property….The law “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,” Carney wrote.
Well now, the Ninth Circuit’s “merits panel,” a completely different group of three appellate judges, has “dissolved” the “administrative stay” granted by the “emergency motions panel” of the Ninth Circuit:
From the Order:
The emergency motion under Circuit Rule 27-3 for a stay pending appeal and for an interim administrative stay, the supplements, responses, and replies thereto, have been referred to the merits panel and the case is calendared for argument in April. The administrative stay previously entered is dissolved. The emergency motion under Circuit Rule 27-3 for a stay pending appeal and for an interim administrative stay is denied pending further order of the court.[emphasis added]
One last time, from Reuters: US appeals court prevents California from banning guns in most public places:
A federal appeals court on Saturday allowed a judge’s ruling that barred California from enforcing a new law that bans the carrying of guns in most public places on the grounds that it was unconstitutional to take effect.The 9th U.S. Circuit Court of Appeals dissolved an order by a different 9th Circuit panel from a week earlier that suspended an injunction issued by a judge who concluded the Democratic-led state’s law violated the right of citizens to keep and bear arms under the U.S. Constitution’s Second Amendment.Last week’s order had temporarily stayed the injunction and allowed the law to take effect on Jan. 1. Gun rights groups then asked the 9th Circuit to reconsider, and on Saturday a different panel of judges dissolved the order suspending the injunction….California’s appeal of the injunction will now be heard in April. The state’s attorney general in court papers had argued “tens of millions of Californians will face a heightened risk of gun violence” if the law was blocked.”This dangerous decision puts the lives of Californians on the line,” said Daniel Villaseñor, a spokesperson for Democratic Governor Gavin Newsom, who signed the measure into law in September.
One key point is that the Second Circuit recently, as mentioned, struck down New York’s ban on concealed carry in houses of worship. The Second Circuit also struck down the ban on concealed carry in places open to the public unless the proprietor put signage up indicating that carry was allowed.
If either of these provisions survives in California, that would set up a classic “circuit split.” A circuit split is a situation where two U.S, Courts of Appeal differ in their interpretation of the law, in this case how far the regime born of Bruen extends the right to carry concealed firearms for personal protection. In such a case, the Supreme Court might very well take one or both cases to resolve the split and impart unity on this important question.
We will be monitoring this case and will, of course, keep you updated on the Ninth Circuit’s final word on the injunction.
In the meantime, lawful California concealed carry permit holders can carry as before without worrying about the Gavin Newsom’s gendarmes.
The X brigades have, of course, weighed in:
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