September 16, 2024 – A recent ruling by a unanimous panel (3 judges) of the United States Court of Appeals for the Ninth Circuit in the Wolford v. Lopez case upheld in part two preliminary injunctions issued by the lower courts against location-specific concealed carry restrictions in California and Hawaii. The prohibitions on carrying firearms in places of worship, banks, public transit, medical facilities, gatherings that require a permit (i.e., parades, demonstrations), and the parking lots adjacent to those facilities, remain unenforceable. The panel also upheld the injunction prohibiting enforcement of the private property carry restriction, which made it unlawful to carry a concealed firearm on private property without the owner’s express permission. However, the panel reversed the preliminary injunctions that stayed enforcement of several provisions that make it a crime to carry firearms in many other places, including parks, beaches, playgrounds, bars or restaurants that serve alcohol, casinos and similar gambling establishments, stadiums, public libraries, zoos, museums, and parking areas connected to those places. As such, just like in New York after the Antonyuk v. Chiumento opinion, it remains very confusing for law-abiding persons with concealed carry permits to determine exactly where they are permitted to carry a firearm for self-defense purposes in California and Hawaii.
Under the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, firearms laws seeking to restrict conduct covered by the “plain text” of the Second Amendment are constitutional only if the government shows they are “consistent with this Nation’s historical tradition of firearm regulation.” In this recent case, the appeals court concluded that the proper approach for determining whether a place is sensitive, and thus subject to restrictions, is as follows: for places that existed since the passage of the Second Amendment, the government must identify historical regulations similar in number and timeframe as justification for the restriction. For places that did not exist in the 1700s (i.e., public transit and airports), the government must point to regulations that are analogous, however, relevant analogous regulations need not be a close match to the challenged law, but only show consistency with our Nation’s historical tradition of regulating firearms. Here, Hawaii and California failed to meet that burden in defending the creation of several gun-free zones in those states, but were able to cite to other relevant historical regulations to support others.
In particular, the appeals court found that the plaintiffs challenging California’s law were likely to succeed in arguing that it was unconstitutional to ban firearms in places of worship because defendants had “not pointed to a single regulation banning firearms at places of worship or any analogous place,” which the court found to be “especially probative given the prevalence of places of worship” during colonial times. The analysis was the same with regard to California’s proposed ban on firearms at public gatherings for which a permit is required. “Public gatherings have existed since before the Founding,[therefore the state] must show an enduring national tradition with respect to public gatherings,” but California “cannot point to a single regulation [restricting possession of firearms at] public gatherings until after the ratification of the Fourteenth Amendment.”  
Similarly, the court ruled that “Defendants have not pointed to any evidence of a historical regulation – or even a more modern regulation – prohibiting the carry of firearms in banks,” or anything analogous to a bank or financial institution. Since “[m]odern banks are roughly the same as banks in 1791,” these proposed bans in California and Hawaii were found problematic as well. This logic held for the proposed ban at hospitals regarding public transportation, the court found California’s law too broad leading to possible disparate treatment of persons who could afford private transportation (where carry was permitted) and those who could not, as well as “unavoidably affect[ing] some persons’ rights to bear arms on a nearly daily basis.” 
Despite those partial victories for permit holders who wish to carry their firearms in Hawaii and California, the court’s language upholding many of the other new restrictions are concerning. In upholding the prohibition of carrying concealed firearms in “parks and similar places,” for example, the court found that the plaintiffs “are unlikely to succeed in their assertion that the public green spaces that existed in 1791 were akin to a modern park.” Thus, it appears the court’s definition of “analogous” changes depending upon the outcome desired. 
At the conclusion of the opinion, the Ninth Circuit acknowledged the absurdity of its ruling, stating, the “lists of places where a State likely may ban, or may not ban, the carry of firearms appear arbitrary.  A State likely may ban firearms in museums but not churches; in restaurants but not hospitals; in libraries but not banks.” This statement clearly was the court’s effort to criticize the Supreme Court’s decision in Bruen.  These cases will likely be further litigated in the lower courts and subject to further appeals,  from both sides. 
Renzulli Law Firm will continue to monitor and provide updates on legislation, regulations and cases concerning the right to keep and bear arms. If you have any questions about cases involving the Second Amendment or the firearm industry, please contact John F. Renzulli or Christopher Renzulli.