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.
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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