By David E. Mastagni and Taylor Davies-Mahaffey
Mastagni Holstedt, APC
On September 6, the Ninth Circuit Court of Appeals partly upheld a preliminary injunction blocking the enforcement of Senate Bill 2 (SB 2) with regard to its location-specific bans on concealed carry in so-called “sensitive places,” even for permit holders.
In defiance of the Supreme Court’s Bruen ruling, California enacted SB 2, which eliminated the good cause requirement to obtain a CCW permit, but also defined most of the state as a “sensitive place” where even permit holders could not carry. Peace Officers Research Association (PORAC) President Brian Marvel provided a declaration in support of the injunction that was issued in May v. Bonta and appealed by the state. The May appeal was consolidated with appeals from two other states and adjudicated in Wolford v. Lopez, No. 23-16164, 2024 WL 4097462 (9th Cir. Sept. 6, 2024).
PORAC, the California Association of Highway Patrolmen (CAHP), the California State Sheriffs’ Association (CSSA) and the Crime Prevention Research Center (CPPC) filed an amicus curiae brief in the Ninth Circuit Court of Appeals supporting the trial court’s injunction.
In ruling on California’s Bruen response bills, the decision was as follows.
Locations where concealed carry by permit holders is allowed:
- Hospitals and similar medical facilities
- Public transit
- Gatherings that require a permit
- Places of worship
- Financial institutions
- Parking areas and similar areas connected to those places
Locations where concealed carry by permit holders is prohibited:
- Bars and restaurants that serve alcohol
- Playgrounds
- Youth centers
- Parks
- Athletic areas and athletic facilities
- Most real property under the control of the Department of Parks and Recreation or the Department of Fish and Wildlife
- Casinos and similar gambling establishments
- Stadiums and arenas
- Public libraries
- Amusement parks, zoos and museums
- Parking areas and similar areas connected to those places, and all parking areas connected to other sensitive places listed in the statute
Importantly, the appellate court rejected the state’s asserted legal standard for applying Bruen: “For their part, Defendants suggest that, if a place shares some characteristic with one of the sensitive places identified by the Supreme Court, then that place, too, necessarily is a sensitive place — without much, or any, need to show relevant historical analogues. That view also is inconsistent with Bruen.”
Instead, the court concluded: “[T]he proper approach for determining whether a place is sensitive is as follows. For places that have existed since the Founding, it suffices for Defendant to identify historical regulations similar in number and timeframe to the regulations that the Supreme Court cited as justification for designating other places as sensitive. For places that are newer, Defendant must point to regulations that are analogous to the regulations cited by the Court, taking into account that it is illogical to expect a government to regulate a place before it existed in its modern form. For example, it makes little sense to ask whether the Founders regulated firearms at nuclear power plants.”
Citing United States v. Rahimi, 144 S. Ct. 1889 (2024), the court further explained that “for both types of places, historical regulations need not be a close match to the challenged law; they need only evince a principle underpinning our Nation’s historical tradition of regulating firearms in places relevantly similar to those covered by the challenged law.”
The decision is notable for upholding significant Second Amendment rights, which is a rare occurrence in the Ninth Circuit. However, the split opinion will likely leave all parties dissatisfied. If there is not an en banc review of this opinion, the matter will proceed to a hearing on the merits.