State laws in California and Hawaii that largely block gun owners from carrying their firearms into the vast majority of public and private spaces appear ticketed for a potential showdown before the U.S. Supreme Court, after a federal appeals court refused to revisit a prior ruling upholding the bulk of the laws.
Eight of the judges of the U.S. Ninth Circuit Court of Appeal dissented from that decision, saying the laws were blatantly unconstitutional, as they would essentially eliminate Second Amendment rights outside of the home except "for those who aimlessly wander the streets."
On Jan. 15, the Ninth Circuit denied a request for a rehearing from groups and gun owners challenging the largely similar concealed carry restriction laws put in place by the two states.
The decision leaves in place a 2024 ruling from a three-judge Ninth Circuit panel, which had, in turn, reversed a ruling from an Orange County federal judge, who had declared the California law was unconstitutional.
In California, the legal fight landed in federal court in 2023, after California's Democratic legislative supermajority and Gov. Gavin Newsom approved the measure, known as SB2.
The legislation was advanced by Democrats as part of a broader effort nationwide by left-wing and anti-gun activists to restrict gun ownership and carry rights in response to the U.S. Supreme Court's decision known as New York State Pistol and Rifle Association v Bruen.
In that decision, the Supreme Court appeared to move 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 Hawaii, among 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 and Hawaii, lawmakers used their new laws 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.
While private property owners had long held the right to forbid firearms on their property, the new laws flipped the presumption entirely around, blocking gun owners from carrying lawfully concealed firearms onto private property, unless the property owner specifically gives written permission or posts a sign welcoming concealed carry.
At federal court in Santa Ana, U.S. District Judge Cormac Carney blocked California from enforcing SB2, calling its restrictions and reasoning "repugnant to the Second Amendment and openly defiant to the Supreme Court."
The state appealed that ruling to the Ninth Circuit, where the three-judge panel said they believed the law mostly fit within the Second Amendment and the reasoning of Bruen.
They said the tests established by the Bruen decision don't allow states to ban concealed carry in public places similar to those that may have been present at the time of America's founding, including hospitals, banks and houses of worship.
They also rejected restrictions on transporting weapons on public transit, because state law currently allow people to carry unloaded, secured weapons in private vehicles, so the state can't deny that right to people using public transportation.
But the judges said they believed the state could block people from carrying weapons in "parks and places of amusement," casinos, zoos, stadiums, public parks, restaurants, libraries, parking garages, and public recreation areas.
The court also left untouched the essential ban on concealed carry on private property.
The plaintiffs asked the full Ninth Circuit court to review that decision as an "en banc" panel of 11 judges, asserting the reasoning is itself defiant to the Supreme Court and contrary to the Second Amendment.
The full court denied that request.
Eight of the court's judges said the court should have reheard the matter en banc.
Judges Daniel P. Collins and Daniel A. Bress said the Ninth Circuit panel failed to properly apply the Supreme Court's reasoning and tests laid out in Bruen and "in doing so, the court largely vitiated the 'right to bear commonly used arms in public' that the Supreme Court recognized in Bruen."
Ninth Circuit Judge Lawrence VanDyke authored a lengthy dissent to the decision, saying it pits the Ninth Circuit against every other court to consider the question and could invite an unnecessary defeat before the U.S. Supreme Court.
VanDyke was joined in his dissent by Judges Consuelo M. Callahan, Patrick J. Bumatay, Sandra S. Ikuta, Ryan D. Nelson and Kenneth Kiyul Lee.
In the dissent, VanDyke noted the U.S. Second Circuit Court of Appeals had struck down a similar Bruen-response state law enacted in New York, finding its long list of so-called "sensitive places" essentially invalidate Second Amendment rights in cities or just about anywhere else people live or gather.
Often, differences in opinion between federal appeals courts on questions of constitutional law result in the Supreme Court taking up the case on appeal to settle the disagreement nationwide.
Speaking to the California and Hawaii laws directly, VanDyke said the appellate decision relied on strained legal reasoning that all but flouts the holdings in Bruen.
VanDyke asserted the "historical analogues" the panel cited were not in any way similar to the sweeping prohibitions on concealed carry rights enacted in the California and Hawaii laws.
He noted these included a 1791 anti-poaching law in New Jersey which VanDyke said was never intended to restrict gun ownership or use for defense, and a pre-Civil War law from Louisiana intended to prevent black people or freed slaves from carrying weapons to defend themselves.
"In short, the panel stretched to draw principles from unrelated laws that simply do not support its stated regulatory principle," VanDyke wrote.
"... With their new public carry bans, Hawaii and California have effectively disarmed law-abiding Hawaiians and Californians from publicly carrying during most of their daily lives," VanDyke wrote. "Bruen said the Second Amendment protects a 'general right to publicly carry arms for self-defense.'
"It is hard to see how any such right 'generally' applies in Hawaii and California after our court has sanctioned laws that flip the default rule into a 'general right' not to carry on private property or most public property other than streets and sidewalks."