Ninth Circuit Now Halts California’s New Restrictive Gun Law Pending Appeal – UPDATE
Ninth Circuit issues “administrative stay” blocking lower court’s injunction against California’s new, expansive concealed carry statute that bars carry in almost all public places
As we reported in early October, several California gun owners challenged a new California statute that would ban concealed carry in “sensitive places” and private property open to the public: 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 gist of the complaint is that these provisions in California’s new law violate 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 Reuters: 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 [a George W. Bush appointee] 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.
Well, appeal he did, and the Ninth Circuit U.S. Court of Appeals has now “administratively stayed” Judge Carney’s injunction pending appeal, which means that the law is now in effect.
Again from Reuters: 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.
The Ninth Circuit has ordered formal briefing on Judge Carney’s preliminary injunction to be submitted by late February. After that, the court will most likely hold a formal oral argument hearing and then issue a ruling on the injunction.
Perhaps very importantly, this case mirrors a different federal case regarding a New York State firearms statute, and the Second Circuit U.S. Court of Appeals in that case struck down two similar, key pieces that have survived (so far) in California; namely, the ban on concealed carry in houses of worship and the ban on carry in places open to the public: Appeals Court Strikes Down Major Portions of New York State Gun Carry Law, But Allows “Sensitive” Places Restrictions:
From Fox News: Gun rights group applauds after federal appeals court deals blow to NY concealed carry law:
Gun rights activists cheered Friday after a federal appeals court struck down parts of New York’s expansive concealed carry law.
The U.S. Court of Appeals for the Second Circuit blocked three provisions of New York’s “Concealed Carry Improvement Act” (CCIA), a law Democrats passed last year in response to a Supreme Court ruling that declared the state’s previous concealed carry permitting requirements unconstitutional. In doing so, the appeals court allowed other parts of the law to go into effect.
In a 261-page ruling, the three-judge panel struck down a requirement that gun owners disclose their social media accounts for review when applying for a concealed carry permit. The court also blocked restrictions on carrying firearms on private property that is accessible to the public, as well as a restriction on concealed carry in houses of worship.
You may recall that I predicted the U.S. Supreme Court would not review the Second Circuit’s opinion, but now, if the Ninth Circuit winds up upholding the ban on concealed carry in houses of worship and/or upholding the ban on concealed carry in places open to the public unless the store owner posts a sign saying carry is okay, 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.
As always, we will keep you posted. In the meantime, if you plan to carry in California, you might review California’s new law in detail.
UPDATE
A short update to the post above, in which we reported that a panel of the Ninth Circuit U.S. Court of Appeals had stayed an injunction issued by a lower court finding California’s new gun control law unconstitutional.
A different panel of the Ninth Circuit has now dissolved the previous panel’s stay, and, for now, the lower court’s injunction against the restrictive California law, stopping it in its tracks, stands.
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.
Stay tuned, we’ll have a full report tomorrow detailing these late-breaking developments.
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Comments
What part of “shall not be infringed” is so hard to understand?
The part where they don’t care what the constitution says.
The 9th Circus strikes again.
Even when the Supreme Court reverses this decision. How will they enforce it when California and New York are an open rebellion to the courts rulings?
Such is the nature of Communists.
“Shall not be infringed” is easy to understand, though CA just doesn’t care, and neither do many judges on the 9th circuit.
But “shall not be infringed”, even for those who take it seriously, still leaves a lot of room for litigation on what constitutes an infringement. CA claims its law doesn’t infringe the RKBA. That claim seems ludicrous, but it must still be litigated.
One of the accepted arguments for considering magazines to not be protected is that as long as one can manually load a round into the firearm and fire it… that constitutes the only level of qualification of a firearm under 2A.. Single shot is the only “protected” class.
Another argument accepted in Illinois is that “accoutrements” included flints in the 1700’s. Spare flints … spare firing pins… extrapolate that to no spare parts. These arms were called “flintlocks” not “accoutrement-locks”. If one thinks that this is double=plus ungood…. you are correct.
Years ago, a judge ruled that if any class of firearm could be converted into a machine gun, no matter how expensive or cumbersome the conversion.. it was a machine gun. John Browning made a spoon with a hole in the center and placed it in front of the muzzle, harnessing the gas exhaust to operate the lever of a Winchester 73 which had the “Chuck Connors’ Rifleman” tab that pulled the trigger when the lever was closed…. the Winchester dutifully emptied its magazine in uncontrolled full auto. (This “gas trap” was later used on the first M1 Garands. )
Sure makes perfect sense. And let’s apply this to the 1st amendment too. You can have all the free speech you want, but only one pencil a month.
You can only use 8,000,000,000 pixels a month.
That should cut down on the server farms making heat and using electricity.
I’m not 100% sure the “conversion” rule was even so much as blessed by a judge. It’s in one of the BATF’s “administrative regulations,” and couched in deliberately vague terms, such that they won’t even pin down for you exactly how much effort in exactly what amount of time is necessary for the original product to be considered contraband.
There is a legendary tale about a skilled machinist who made a functioning machine gun out of Volvo auto parts in six hours, to prove that (under the regs) Volvos were now legally machine guns. There have been other cases in which the BATF ruled that a shoelace was a machine gun (the principle involved was the same as a bump stock), and that a Chore Boy scrubbing pad was an illegal silencer.
That machinist foolishly invited retaliation. I’m surprised ATF agents didn’t arrest him immediately for unlawful manufacture of a machine gun under said regulations.
Turns out it’s legal to manufacture a machine gun for yourself. Just don’t sell it, transfer (lend) it, or do a few other things with it, possibly including driving it across state lines.
It’s the “right” to arms that “shall not be infringed.” Up until some relatively recent SCOTUS decisions, what that “right” encompassed hadn’t been clearly adjudicated. But much that was unsettled has been settled, and laws such as this one in CA are clearly calculated to skirt the court’s decision and are an “infringement” on the right to arms because an individual’s right to arms has been clearly established and the word “infringe” means “to encroach on the periphery.” A right cannot be abrogated or suspended by statute, but neither can statute merely intrude upon its “fringes,” even when the law avoids stepping on the core right itself. Waiting periods, licenses and permits, bans on certain types of firearms, excessive taxation on firearms & ammunition, “sensitive places” in which carry is banned, etc. are all “infringements” that governments believe are OK because, as they sometimes claim, they don’t affect the core right – “You can still buy and own guns.” But this is like banning Seventh Day Adventism and Lutheranism and saying, “This doesn’t infringe upon your right to religious belief because there are other religions you can practice.”
“One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”
–SCHNEIDER V. STATE, 308 U.S. 147, 163 (1939).
Of course, the First Amendment is the favorite child and gets all the good Christmas presents, while the Second gets shrugged off with dead “pets” and orange peels.
The “sensitive places” infringement suffers from the bright-line problem. There are, in fact, sensitive places that people overwhelmingly agree on, such as prisons and courtrooms. And there are some which are manifestly abhorrent, such as churches, public transportation, and retail outlets (as in a blanket prohibition by law, as opposed to a private proprietor). And in the middle are contentious places like schools, hospitals, bars, and parks — contentious only because the vast number of sheeple whose brains illogically but automatically assume that a law banning firearms in a place is equivalent to precluding armed crime occurring in that place. And it’s the job of the Marxist sappers to keep pushing that line upward until it “safeti-fies” everyplace but firing ranges. Same as their mania to ban ill=defined “assault weapons” is only about getting a foot in the door — if one popular weapon can be banned despite the Second Amendment, then any other weapon can be banned.
Do they? My understanding is (unless they’ve changed the law since I last looked) you can carry a firearm into a prison (by which I mean not the area where prisoners actually reside) in WA state, so long as you check it in with the duty sergeant. In most states you can’t even do it in the parking lot. You can openly carry a firearm in airports in Arizona as long as you stay outside the TSA controlled zone. You can carry in a courtroom in Florida if the judge permits it. Before their recent round of anti-gun laws it was legal to carry on school grounds in California of all places. You still can in Utah. What exactly is a “sensitive place” is hardly universal in the US.
That’s why I chose the word “overwhelming” instead of “universal.” I’m aware of most of those exceptions; I’m also aware that there are a subset of hard-core 2A activists who believe there should be no “
sensitiverights-free zones” at all, and have some good arguments to that end.For anyone actually capable of thought, this is not really a question. If it impedes me from exercising my rights, it is an infringement.
That begs the question. What are your rights? The Supreme Court has been very clear that some regulations do not infringe the RKBA. It’s laid out guidelines for figuring out where that line lies, and on which side any given regulation falls. But the details can only be worked out by litigation.
For the wannabe mass murderers in government reading isn’t necessary. Throughout history governments have been the biggest mass killers of human beings.
Forget it, slag. It’s California.
It’s Slaggy for short 🙂
The fascists just can’t help themselves. They have to try to take away people’s right to defend themselves from all comers including the government
It will never end until SCOTUS makes an absolute ruling on the whole issue OR an amendment written in plain English is passed into the Constitution.
This is so tiring.
They don’t care what the Constitution says or how it’s interpreted. That’s all there is to it.
Some of the same people who claim the amendment protects only those types of arms that were extant at the time of the amendment’s ratification also do not believe we have a right to carry swords and knives, demonstrating that although the amendment’s purpose is clearly to protect something, they really don’t believe it protects anything. They’d be after our flintlocks if that’s all we had.
It was written in plain English. We just have an ignorant population, thanks to the left.
There are few designs so perfidious as to pretend to write a document enumerating your protections from government tyranny, and then handing the power to interpret that document to the very government it ostensibly protects you against.
We already have the 2nd option. The 2nd amendment IS written in plain English an the language is absolute. There is no wriggle room. The real problem is getting the fascists to go stop trying to rule-lawyer their way around it.
Heller was that ruling. The lower courts promptly ignored it, as they have every pro-gun ruling since.
This is so contemptible. The vile, lawless and totalitarian Dhimmi-crats know full-well that there is no price to be paid for brazenly defying SCOTUS rulings and flouting clearly-established precedent, and, they know that it takes years for plaintiffs to obtain judicial relief. So, these bastards are content to spit on the Constitution, and, the Court, and deprive citizens of their rights.
The 9th Circuit Court of Appeals: California’s bulwark against the Bill of Rights.
Would that it were only so. The Ninth also tyrannizes Arizona, Alaska, Idaho, Montana, and Nevada. (I’ve omitted mentioning other states in which the citizens enjoy the abuse.)
They won’t stop. Just like the DEI in Texas where Universities are busy trying to find ways to circumvent the law. It will go on and on until there are penalties for the lawmakers that continue to pass laws clearly Unconstitutional or that go around prior court rulings.
The problem is the continued reliance on and abdication to the government, itself, to protect the rights enumerated in the Constitution.
The consequences will only come when we, the people, start to impose them.
Bingo. You cannot rely on a government to fairly administer a document that protects people from that government.
Of course they won’t stop. The process is the punishment. They know it costs money to challenge these laws, and they get to use our money against us. Although they can always extract more money out of us, there’s no guarantee that we will always be able to fight them. Also, when stays are not issued to prevent them from going into effect, the law can be operational for years before a final ruling. Even if the state loses, damage has still been done – firearms dealers’ revenue goes down, some will go out of business, the firearms industry is also similarly effected and manufacturers of guns, ammunition, and accessories (holsters, magazines, slings, you name it) can also feel the pinch. These laws have the effect of eroding the right merely by damaging the industry that supports it, even when the laws are overturned.
The Ninth Circuit thumbs its nose at the Supremes again. It will continue until the Chief Judge, that’s you Roberts, sanctions these Circuits/Judges. It’s the reason they call you the Chief Judge. Do your job! Oh that’s right, you don’t like conflict. Another of the Bush I-II failures as a Supreme. Roberts should try out for the Olympic gymnastics team. Because he certainly demonstrates the ability to contort himself in to various stances and shapes. FJB
“Gee whiz, we just can’t understand why you don’t take us seriously when we say we support the Second Amendment with just a few ‘reasonable’ restrictions.”
Well, lefties, this law is a good example.
I don’t hold out much hope for Roberts doing the job he’s supposed to be doing. As noted above, he’s more a gymnast than a jurist.
I am starting to think the right to defend our self ANYWHERE is a fundamental right. Zero restrictions since the government can’t protect us.
Zero restrictions because government has demonstrated time and again that any restriction is never the last restriction. It’s the first restriction that must be stopped, because if it’s not stopped, there will always be more.
Can’t? Why would they? The don’t want protect us, even though protecting our rights is really the only legitimate job the government has.
Prior to 1986, California was a great place to live and outside of San Francisco & LA, a reasonably sane place. I know. I grew up there. But, then Reagan signed the Amnesty Act and when those illegals began voting and their children reached the age of majority, the state took a HARD and decisive left turn. Prior to 1992, Democrat presidential nominees only won the state a handful of times. And, in ’92, they didn’t even win a majority of the vote (thanks to Perot). But, by 2000 when all those new citizens and their kids were voting in earnest, Democrats placed an electoral death-grip on the state.
I’m afraid America’s future is going to resemble California, not Florida. If the southern border invasion continues at its current pace, that future is going to be here a LOT sooner than anyone could have predicted. The entire Constitution will be a dead letter, not just the 2nd Amendment.
Any restriction sets a precedent upon which other restrictions “grow”. When SCOTUS ruled in Wickard v Fillburn that growing wheat for your own use affected interstate commerce, it was seen as a reasonable restriction on your freedom in times of a Great Depression.
Fast forward: no gas stoves and the government decides what kilowatt per horsepower is legal for a refrigerator fan.
An interesting side to the new “law” is that persons that had a CHL could carry in a number of areas before this change. Now they cannot.
Another side effect will be nobody issuing permits. Already too few as it is, but those remaining will ask “what’s the point, as you can’t carry anywhere even if you have a permit”.
The California law is again blocked: https://www.pbs.org/newshour/politics/appeals-court-blocks-california-law-banning-guns-in-most-public-places-from-taking-effect