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—prohibiting the carry of firearms in banks. And Defendants have not pointed to a historical regulation prohibiting carry in another type of place analogous to a bank or financial institution."
What about California's ban on guns in hospitals and other medical facilities? "Medical facilities of some sort have existed since colonial times," Graber writes. "As the district court here concluded, Defendant has not introduced any evidence of a historical ban on firearms in medical facilities of any type."
A federal judge in Illinois recently rejected the state's argument that public transit qualifies as a "sensitive place." The 9th Circuit was similarly skeptical of California's ban on guns in public transportation vehicles and facilities. Since "public transit did not exist in modern form until the 20th century," Graber says, the state "has to point only to a relevantly similar historical regulation, not a dead ringer." Like Illinois, California cited 19th century restrictions on guns imposed by private railroads.
"Our examination of the relevant regulations suggests that California's law is too broad," Graber writes. "The historical regulations are insufficiently analogous. In particular, most of the companies appeared to prohibit only carriage without pre-boarding inspection, carriage in the passenger cars (the firearms had to be checked as luggage), carriage of loaded firearms, or carriage of 'dangerous' weapons, such as rifles with bayonets attached. Moreover, several States enacted a 'traveler's exception,' whereby persons traveling longer distances could carry their firearms on board."
The 9th Circuit also upheld the part of a preliminary injunction that barred Hawaii from enforcing a ban on guns in parking areas shared by government buildings and private businesses. Hawaii's law applies to "any building or office owned, leased, or used by the State or a county, and adjacent grounds and parking areas." The state claimed that provision, contrary to its apparent meaning, covers only parking areas used exclusively by government buildings. But the 9th Circuit thought it was reasonable for the plaintiffs to worry that they would be prosecuted for violating the law if they carried their handguns in shared parking areas.
"On appeal, Defendant has not challenged meaningfully the Second Amendment analysis as to shared parking lots," Graber writes. "We hold that, at least for the purpose of the preliminary injunction, Defendant has forfeited any argument as to the merits."
It was not all good news for permit holders who want to carry guns in public for self-defense. Hawaii and California both established default rules that barred guns from private businesses without the owner's consent. As a general matter, the 9th Circuit deemed such rules consistent with historical tradition. Graber cites two sets of precedents: anti-poaching laws that "prohibited the carry of firearms onto subsets of private land, such as plantations or enclosed lands," and broader laws that banned "the carrying of firearms onto any private property without the owner's consent."
The record "contains no evidence whatsoever that these laws were viewed as controversial or constitutionally questionable," Graber writes. "Instead, they were viewed as falling well within the colony's or the State's ordinary police power to regulate the default rules concerning private property."
Graber nevertheless sees an important distinction between Hawaii's law and California's. Hawaii prohibits guns "unless the owner has posted signs, otherwise has given written consent, or has given oral consent," she notes. California, by contrast, allows "the carry of firearms on private property only if the owner has consented in one specific way: posting signs of a particular size." The latter law "falls outside the historical tradition," Graber says. "We find no historical support for that stringent limitation."
The 9th Circuit saw no constitutional problem with several other broad restrictions, including bans on guns in "parks and similar places." Based on the current record, the plaintiffs "are unlikely to succeed in their assertion that the public green spaces that existed in 1791 [where guns were allowed] were akin to a modern park," Graber writes. "As soon as green spaces began to take the shape of a modern park, in the middle of the 19th century, municipalities and other governments imposed bans on carrying firearms into the parks." She offers a long list of 19th century examples, including parks in New York City, Philadelphia, San Francisco, Salt Lake City, Chicago, St. Louis, Pittsburgh, Detroit, Trenton, Spokane, Indianapolis, and Kansas City.
"Because many laws prohibited carrying firearms in parks, and the constitutionality of those laws was not in dispute, we agree with the Second Circuit and several district courts that the Nation's historical tradition includes regulating firearms in parks," Graber says. She rejects the plaintiffs' argument that a historical tradition requires state laws or restrictions that applied to a large share of the national population. She notes that "the Supreme Court designated schools as sensitive places, even though less historical support justified that designation."
The plaintiffs also argued that prohibiting guns in municipal parks is a far cry from banning them in "large, rural, and sparsely visited parks." But since the plaintiffs mounted a facial challenge to the park bans, Graber says, they have to show those provisions are unconstitutional in every conceivable application.
The 9th Circuit extended its approval of gun bans in parks to "other, related places," such as beaches and athletic facilities. It also concluded that the plaintiffs are unlikely to prevail in their challenges to bans on guns in playgrounds and youth centers. "Playgrounds are found primarily at schools and parks," Graber writes. "Both categories of places qualify as 'sensitive places' that have a historical tradition of firearm bans; by extension, there is a historical tradition of banning firearms at playgrounds. Plaintiffs do not present any separate argument concerning youth centers, which are akin to schools."
The 9th Circuit also rejected the part of a preliminary injunction that barred enforcement of Hawaii's ban on guns in bars and restaurants that serve alcohol. "In a long line of regulations dating back to the colonial era, colonies, states, and cities have regulated in ways reflecting their understanding that firearms and intoxication are a dangerous mix," Graber says. Those regulations included laws that "prohibited retailers of liquor from keeping gunpowder," banned people from carrying guns while intoxicated, and tried to prevent drunkenness among militia members. Subsequent laws, enacted in the 19th century, "broadly prohibited the carry of firearms at ballrooms and at social gatherings." A few local and state laws specifically prohibited guns in bars and other locations where alcohol was served, Graber says, and "no evidence in the record suggests that anyone disputed the constitutionality of those laws."
The 9th Circuit goes further, blessing state bans on guns in "places of amusement" such as casinos, stadiums, amusement parks, zoos, museums, and libraries. "Both before and shortly following the ratification of the Fourteenth Amendment, cities, states, and territories prohibited firearms at a wide range of places for social gathering and amusement," Graber says, including ballrooms, public parties, fairs, race courses, circuses, exhibitions, and "place where persons are assembled for educational, literary or scientific purposes." She notes that "state court decisions at the time rejected arguments that the provisions conflicted with the Second Amendment."
The Firearms Policy Coalition (FPC), a plaintiff in the California case, welcomed the parts of the 9th Circuit's ruling that rejected the state's defense of certain location-specific gun restrictions. "This partially favorable decision from the Ninth Circuit shows how far we've come over the past decade," said FPC President Brandon Combs. "But this case, and our work to restore the right to bear arms, is far from over. FPC will continue to fight forward until all peaceable people can fully exercise their right to carry in California and throughout the United States."
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