A federal appeals court has ruled that California can enforce limits on concealed carry of firearms in some, but not all of the so-called "sensitive" places the state's Democratic governing supermajority had declared off limits.
On Sept. 6, a three-judge panel of the U.S. Ninth Circuit Court of Appeals overturned part of an Orange County federal judge's injunction blocking the state from enforcing any part of a state law that the judge agreed would effectively abolish Second Amendment rights in the state.
The appellate ruling notably allows California to use the state law, known as Senate Bill 2, to prohibit concealed carry in parks, restaurants and bars, and stadiums and other public places of "amusement."
The ruling, however, would continue to block California from prohibiting firearms from being carried in churches and other places of worship, as well as in hospitals and "gatherings that require a permit" on streets and other public property.
The judges said California also overreached in prohibiting people from carrying firearms on public transit, but only because the law contained no exceptions for people to transport firearms that are onloaded and carried in locked cases on trains and buses. The judges explicitly stated they believe states have the authority to ban concealed carry of loaded firearms on public transit, even if the weapon is intended for self defense.
The ruling also declared California lawmakers stepped over the line by seeking to effectively ban the carry of guns on all private property in the state, unless the owner specifically gives permission by posting a sign. The judges said California could still ban firearms on private property, but must allow for other ways for private property owners to give permission, including orally and in writing.
They also stressed repeatedly that private property owners remain free to prohibit people from carrying firearms on their property, if they so desire, even if the facility is a place of public accommodation.
Graber was appointed to the court by former President Bill Clinton. Schroeder was appointed by former President Jimmy Carter. And Sung was appointed by President Joe Biden.
The decision delivered a mixed result for Second Amendment rights advocates in California and for the gun control advocates who dominate the California state government in Sacramento.
The Firearms Policy Coalition, a Second Amendment rights advocacy group who are leading the challenge to SB2, said, while the decision marked a partial win for their side, it serves as an important marker of "how far we've come over the past decade" in the legal fight against efforts by states to restrict Second Amendment rights.
"But this case, our work to restore the right to bear arms, is far from over," said FPC President Brandon Combs in a prepared statement. "FPC will continue to fight forward until all peaceable people can fully exercise their right to carry in California and throughout the United States."
The legal fight landed in federal court in Orange County in 2023, after California state lawmakers and Gov. Gavin Newsom approved SB2.
The legislation was advanced by Democrats as part of a broader effort nationwide by left-wing gun control advocates to restrict gun ownership and carry rights in the wake of the U.S. Supreme Court decision known as New York State Pistol and Rifle Association v. Bruen.
In that decision, the Supreme Court moved to make it more difficult for states and other governments to impose restrictions on Americans' Second Amendment rights to keep and bear arms. The Bruen ruling barred states from banning gun ownership or restricting carry rights, unless the states can demonstrate the regulations are in keeping with America's history and tradition dating back to the ratification of the Second Amendment in 1791 and Fourteenth Amendment following the Civil War.
Following that ruling, Democrats across the country sought to enact so-called Bruen response laws to push back on the broadening of Second Amendment rights and reassert restrictions on American gun owners.
In California and other states, lawmakers specifically sought to exploit a carveout seemingly allowed by the Supreme Court for so-called "sensitive places," at which firearm carry could be banned. The Supreme Court specifically cited examples like courthouses and schools as such potential "sensitive places."
In California, lawmakers used SB2 to rewrite the rules on concealed carry, creating a long list of "sensitive places" at which concealed carry would be outright prohibited by law, including schools; courthouses; banks; hospitals; parks; playgrounds; stadiums; museums; amusement parks; public transit stations, as well as trains and buses; churches and other houses of worship; restaurants and bars; and many other places.
The law also rewrote the so-called "default rule" on when concealed carry would be allowed on private property. Now, instead of private property owners having to forbid the carry, concealed carry would be considered illegal on private property, unless the property owner explicitly permits it by posting a sign.
In federal district court, U.S. District Judge Cormac Carney, an appointee of former President George W. Bush, blocked California officials from enforcing SB2, saying it would infringe Californians' Second Amendment rights.
Judge Carney declared the "sweeping" law was "repugnant to the Second Amendment and openly defiant to the Supreme Court."
"The law designates twenty-six categories of places ... as 'sensitive places' where concealed carry permitholders cannot carry their handguns," Carney wrote in December 2023. "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. "
The state appealed to the Ninth Circuit, which considered the California law simultaneously with a similar action brought by Second Amendment advocates against a similar "Bruen response" bill enacted by Hawaii.
In reviewing the laws, the appellate judges rejected Carney's conclusion that such laws flagrantly violate the Second Amendment and openly defy the Supreme Court.
The judges said they believe, for instance, that cities and states should be free to ban concealed carry in parks and places of "amusement," like casinos, zoos, stadiums, amusement parks and youth centers, for instance, because American cities have long prohibited such concealed carry in parks since the modern conception of public "parks" and green spaces came into existence in the 1800s.
The judges said this allowance should also be extended to all public green spaces, including state parks and recreation areas and lands under the control of the Department of Fish and Wildlife.
They also asserted the same reasoning means governments are free to prohibit concealed carry in other public places, including restaurants and bars which serve alcohol, public libraries, and more.
And they extended the "sensitive places" designation to attached parking lots and garages, as well.
The judges, however, said they could not similarly find regulations in place in the U.S. during the same time frame that would support bans on concealed carry in other places the state sought to declare "sensitive," including hospitals, banks and houses of worship.
They said the state also could not outright ban the carrying of weapons on public transit, either. But they said their review of rules in place on carriages used to transport people in the early 1800s indicated the state could ban people from carrying loaded weapons for self-defense. But since California currently allows people to carry unloaded, secured weapons in private vehicles, the state cannot block people who rely on public transportation from similarly carrying locked, unloaded weapons on trains and buses.
"A ban on the carry of firearms on public transit almost certainly would be constitutionally permissible if the law allowed the carry of unloaded and secured firearms," the judges wrote.
The judges acknowledged their decision creates a seemingly confusing patchwork of regulations, blaming the apparent confusion on the Bruen decision.
They said "the lack of an apparent logical connection among the sensitive places is hard to explain in ordinary terms," the judges wrote.
And the judges said they expected states, cities, counties and other governments will likely use the confusion within the courts to pass more laws to attempt to restrict gun owner rights - and spawn still more lawsuits challenging those new laws.
The FPC and other challengers were represented before the Ninth Circuit by attorneys Alexander A. Frank, C.D. Michel, Joshua R. Dale and Konstadinos T. Moros, of the firm of Michel & Associates P.C., of Long Beach; Donald Kilmer, of Caldwell, Idaho; Peter A. Patterson, David H. Thompson and Kate Hardiman, of Cooper & Kirk PLLC, of Washington, D.C.; and Bradley A. Benbrook and Stephen M. Duvernay, of Benbrook Law Group P.C., of Sacramento.
Following the ruling, C.D. Michel, who also serves as president of the California Rifle and Pistol Association, posted a statement to the social media platform X, saying: "We are disappointed that the panel did not see things our way on several of the places at issue, but considering the tough panel that was assigned to our case, the result was better than expected. We will continue to pursue this case and will examine whether it makes sense to petition for en banc or Supreme Court review, or instead to pursue a final judgment and then appeal after that."
California was represented in the case by attorney Robert L. Meyerhoff and others with the office of Attorney General Rob Bonta.