9th Circuit Partly Upholds Injunctions Against Location-Specific Gun Bans in California and Hawaii
After the Supreme Court upheld the right to bear arms two years ago, several states responded by making concealed-carry permits easier to obtain but much harder to use, banning guns from long lists of “sensitive places.” California Gov. Gavin Newsom, one of the politicians who embraced that strategy, portrayed it as justified resistance to a “very bad ruling.”
Last Friday, the U.S. Court of Appeals for the 9th Circuit, which is not known for its friendliness to Second Amendment rights, dealt a blow to that end run by partly upholding two preliminary injunctions against location-specific gun bans in California and Hawaii, including prohibitions on guns in places of worship, banks, public transit, medical facilities, and certain parking lots. At the same time, the appeals court upheld several broad provisions that make it a crime to carry guns in parks, playgrounds, “places of amusement,” and bars or restaurants that serve alcohol, along with Hawaii’s default rule against guns in businesses open to the public.
Under the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, gun laws that restrict conduct covered by the “plain text” of the Second Amendment pass muster only if the government shows they are “consistent with this Nation’s historical tradition of firearm regulation.” In Wolford v. Lopez, a three-judge 9th Circuit panel unanimously ruled that Hawaii and California had failed to meet that burden in defending several gun-free zones.
Although the Supreme Court has recognized a historical tradition of prohibiting guns in certain locations, it has been hazy on exactly which locations qualify as “sensitive places.” In District of Columbia v. Heller, the 2008 case in which the Court first explicitly recognized a constitutional right to armed self-defense, it said, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions…forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The Court was not much more specific in Bruen: “Although the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions.”
Applying the Bruen test, the 9th Circuit concluded that the plaintiffs who challenged California’s law are likely to succeed in their argument that the state’s ban on guns in places of worship is unconstitutional. “From the colonial times through the ratification of the Second Amendment and continuing through the ratification of the Fourteenth Amendment, Defendant has not pointed to a single regulation banning firearms at places of worship or at any analogous place,” Judge Susan Graber writes in the panel’s opinion. “The lack of any regulation is especially probative given the prevalence of places of worship during that period.”
The 9th Circuit saw a similar problem with California’s defense of its ban on guns at public gatherings that require a permit. The state “argues that there is a national tradition of banning firearms at public gatherings in general and, because permitted gatherings are a subset of all public gatherings, the challenged provision falls within the tradition,” Graber notes. Because “public gatherings have existed since before the Founding,” she says, the state “must show an enduring national tradition with respect to public gatherings.” Yet “as with places of worship,” California “cannot point to a single regulation of public gatherings until after the ratification of the Fourteenth Amendment.”
California and Hawaii also prohibited guns in banks and other financial institutions. “Modern banks are roughly the same as banks in 1791,” Graber notes. “Defendants have not pointed to any evidence of a historical regulation—or even a more modern regulation—prohib
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