In Stunning About-Face, 9th Circuit Prohibits California from Banning Concealed Carry in Public Places
Ninth Circuit “dissolves” the “administrative stay” it granted only days before, effectively blocking California’s new, draconian gun control law from taking effect
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:
TYRANNY WEEK IS OVER
The 9th Circuit has lifted the administrative stay in May v. Bonta and Carralero v. Bonta.
— Kostas Moros (@MorosKostas) January 6, 2024
Huge: Many of California's New 'Gun-Free Zones' Back on Hold After Ninth Circuit Decisionhttps://t.co/JyuC9HoThA
— Bearing Arms (@BearingArmsCom) January 7, 2024
@antdizzlee82 Believe it or not, the Ninth Circuit Court of Appeals Merit Committee dissolved the stay against concealed carry in California. Totally surprised that they didn’t side with Newscum.
— 🇺🇸🚒 Fireman Curt-Owner 2011/2021👨🏼🚒💚💛🇺🇸 (@63GBPackerfan) January 7, 2024
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Comments
Like the homies in oakland follow the 9th circuit. lol
Maybe not though I would settle for LEO, DAs, Judges and lawmakers following the Constitution.
Don’t hold your breath
We have constitutional carry in Alabama and CA can kiss my….If CA doesn’t that’s on the electorate of CA to fix. Vote down the lefty fascists, sue them into oblivion or move out which will deny CA your taxes and the economic impact of your lifestyle. Doubly so if one is a business owner; deny CA the taxes, fees from regulatory compliance AND the taxes of your employees.
The gangstas in Watts and Compton sure as hell don’t.
Gun laws have never restricted actual criminals, and actually aren’t meant to. It’s the law-abiding these fascists wish to disarm
Only we threaten their .power.
Correct; I’m aware of that. 🙂
Woah a woah Newsoms cryin’ :):):)
Is that sung to the tune of Jamie’s Cryin’ by Van Halen?
Absolutely. Newsom took to Twitter to bemoan it
Maybe they were drunk
I’d feel a lot better about it if they weren’t going to hear bonta’s appeal in April.
It appears that even the idiots on the 9th circus don’t think that the Nazis are going to prevail
Why do lawyers write crap like the following?
From the Second Amendment Foundation:
“The Ninth U.S. Circuit Court of Appeals has reversed an earlier order which put a hold on a lower court ruling that blocked California’s new law prohibiting concealed carry in most public places…”
NORMAL people reading an article like this are looking for the answer to one question: at this moment, can I carry or can’t I?
I read the paragraph to my wife and asked her that question. She flunked. I can’t really blame her.
Maybe they are paid by the word.
While it might be tedious to read and tease out the meaning, they wrote it that way because they wanted to make sure they communicated what actually happened. Which is pretty dang convoluted. But something like a bulleted (or “diagrammed” presentation might have been better:
The 9th Circus has reversed
– an earlier order, which put on hold
— a lower court ruling that blocked
— California’s law prohibiting concealed carry almost everywhere.
The largest complaint I heard was from the concealed carry license holders. Grats, you now have paid close to a thousand dollars for a license to carry…absolutely nowhere. It would be nice if the SC were to overturn the ban without comment, and send a large-print copy of the Bruen decision to the 9th. Perhaps an audiobook, narrated by (fill in name of favorite leftist actor here).
I don’t know his politics, but the thought of the ruling being intoned in the rich baritone of James Earl Jones…..
I was thinking of requiring Alec Baldwin to read it.
Then you can do a second version voiced by his borther Adam (preferably, as if he were Jayne).
My choice would be LeVar Burton. Not only is he a strident leftist, but he did Reading Rainbow for 23 years, so he has plenty of experience forcing the incompetent to comprehend the written word.
It seems to me that we need a way to punish governors that sign such legislation. In doing so, they’re effectively showing contempt for SCOTUS’s decision. If any citizen shows contempt of court, they can be hammered. Why should governors (who have sworn an oath to support their State’s and the federal constitutions) get away with contempt. (Violation of the oath may constitute false swearing and/or perjury. They’re allowed to get away with that too.)
If I may propose:
The governor or former governor of any State, having signed into law legislation subsequently found unconstitutional, is hereby barred from holding any office of public trust upon the issue of the court’s opinion making said determination. If the governor/former governor so barred is in an office of public trust at the time of the opinion’s issue, the office-holder will be allowed to complete the term of office, at which time the bar will take effect.
Seems manifestly unfair to ding the governor for signing a bad law that none of the legislators get dinged for writing and approving in the first place.
We do. It’s called the next election.
That’s not true. If that’s how you’re using the word “contempt”, anybody is free to show as much of it as they like, as you can see by the torrents of criticism that are heard every time a court makes a decision someone doesn’t like. Nobody pulls their punches for fear of being hit for contempt, because shouting from the rooftops what a corrupt pack of morons the justices are, and how wrong their decision is, is not contempt. On the contrary, it’s core protected speech.
Contempt of court means disobeying a lawful order the court gave you, personally, which means that to be in contempt of a court you have to be a party to a case before it, and thus subject to its orders.
Newsom is not party to any case currently before SCOTUS, so it can’t have given him any orders, so he can’t commit contempt by disobeying them.
Also, the separation of powers means no court can order a legislature to pass or not to pass legislation, or an executive to sign or not to sign it. Legislators and governors are not required to agree with judges on what their duties require. Newsom and the CA legislature are free to disagree with Heller, Macdonald, and Bruen and to believe that the 2A doesn’t mean anything like what the judicial branch says it does; thus they are free to pass purported laws that they believe are constitutional, even if they know the courts say they’re not. It’s then up to the courts, which believe those laws to be unconstitutional, to refuse to enforce them, and to order the executive not to enforce them. If the executive violates those orders, that would be contempt.
There’s no “about-face” here. The administrative stay was only ever intended to last a few days, until the merits panel had a chance to consider the motion for a proper stay, which would last until the appeal is heard. Once there was a ruling on that the administrative stay was going to end anyway, regardless of whether the motion for a stay was granted or denied.
So all that happened is the merits panel considered the motion for a stay and decided against it. There had never been any indication that it would grant it.
Yes, and no. The Ninth Circus has a long history of leaving infringements in place with stays for as long as they can delay en banc hearings. In this case, it is surprising that they sided with Bruen, but the split circuit is exactly what they want to avoid. The situation is already setup for split circuit on so-called assault weapon bans and standard capacity magazines over 10 rounds. Adding carry restrictions to the list could result in a sweeping SCOTUS decision overhauling all gun laws and gun control. The Ninth doesn’t want to add fuel to that growing fire.
One of Trumps new appointees to the 9th Circuit clerked for Scalia in his early days. He’s a clear-thinking, God-fearing man of the highest rank.
What a society- 2 centuries of lawyers wrangling back and forth over what a few words mean.
Really, the wrangling is only there because some people want to deny what those words clearly mean.
Dickens made quite a good living chronicling precisely that.
How else are we to know what they mean? They’re not at all self-explanatory. “Congress shall make no law abridging the freedom of speech”. Very nice. Now, what does that freedom consist of, and what kind of law abridges it? We can’t find the answers to those questions in the text; we have to look outside it, and try to figure out how people in the 1780s understood their freedom of speech, and what kind of laws they thought abridged it.
The same for the RKBA: What exactly does that right consist of, and what kind of laws infringe it? Did people in the 1780s think they had a right to own private cannon, and would they have objected to a law against it, or would they have accepted such a law because they never thought they had a right to do that in the first place? The absence of any such laws doesn’t prove they thought they had such a right; maybe there were no laws against it because no legislature was interested in banning it, but they all thought they could if they wanted to. We don’t know.
Bruen says if you want to ban something, show us that in the 1780s, or thereabouts, there were places that did ban that thing and nobody protested about their rights being infringed. If you can’t find evidence that people in the 1780s would have put up with such a ban, we’ll assume they wouldn’t have.
So, do you also think that the FIRST amendment should be up to the states to interpret and enforce as well?
And what other CONSTITUTIONAL amendments would you allow the states to tread on?
Huh? What the HELL are you talking about? Are you on drugs? Or are you just stupid?
Actually, Milhouse, for someone who isn’t a pedant, the language is abundantly clear.
These folks wrote about what they meant when they passed it.
And we know a lot more than you do. (Yes, it was very clear that people could own cannon; otherwise how were Letters of Marque supposed to work?)
No, GWB, the language is not clear, which is why we need litigation to work it out, exactly as we did (and still do) for the first amendment, and for every other part of the constitution.
There is nothing in the constitution’s text to tell us whether there is a right to own cannon. If there was no such right, how were Letters of Marque supposed to work? Very simply. First, since there were in fact no laws against owning cannon, letters of marque would work very well; only if someone were to make a law against it would the question ever come up. And if it did, the answer might have been either that privateers would have to do without cannon, or that the letter of marque could serve as a license to own them. So how do we know whether we do have a right to own cannon? Only the courts can say. Miller implies that we do, but Heller implies that we don’t. As far as I know no court has yet ruled on it.
I’m betting the 9th circuit panel’s decision will get reversed again when it’s appealed to the en-banc court. The 9th has played this game many times with the state’s “assault weapon” ban, denying residents access to federal relief on 2A rights issues.
“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…”
I really dislike the reliance on “the nation’s tradition of firearm regulation.” The earliest firearm regulations were either specifically directed against slaves and blacks in general, or they were largely enforced only against them and other “deplorables.” Many of these statutes didn’t see any legal opposition, and, in those times, challenges were unlikely to have been successful against them. Even an unsuccessful challenge to a law is not proof that the law is constitutional, it’s merely evidence (I write “evidence” because it’s not “proof,” there’s always the possibility that a court erred) that the law isn’t unconstitutional for reasons that were argued by the plaintiff or defendant.
Considerations of “tradition,” if they are to be made at all, should lean towards more liberty, rather than less, because traditionally, this country was founded upon the proposition that our governments’ primary purpose is the protection of our individual rights. Any acts contrary to that purpose, no matter how well-established, should be looked upon with a jaundiced eye.
Yep. It also bears more investigation into the historical record beyond mere passage of a statute to the actual commonplace enforcement of the statute, to include widespread public acceptance which would be best demonstrated by Juries voting to convict under the statute.
As an example Dueling in Alabama was made illegal by the Territorial legislature in 1804. However the statute specified that the Dueling being made unlawful was a Duel ‘as a means of adjusting or settling differences of small magnitude between individuals’. Presumably Duels over large matters were still lawful as they certainly continued to be fought and juries didn’t convict in the rare instances where charges were brought. The last true duel I know of in Alabama was fought in Tuscaloosa in 1877 and the surviving participant was acquitted on the charge of dueling (he wasn’t charged with a homicide). IMO, he probably wouldn’t have been charged had they not held the duel on the second story veranda of Woods Hall on the campus of the Univ of Alabama.
Since the 2nd amendment didn’t originally apply to the states, and if they chose to infringe the RKBA no federal court could stop them, what Bruen is looking for is not so much whether such laws existed, but whether such laws would have been seen as infringing the right (which everyone had, whether it was protected or not); in other words, whether the public would have tolerated applying such laws to free white Protestant men. The fact that a state may have had a law doesn’t prove people didn’t think it infringed the right; maybe they thought it did, but they were OK with that. If they allowed it to be applied to people whose rights mattered, that shows they didn’t think it was an infringement; and if so, it probably isn’t.