Ninth Circuit Addresses Where the Government Can Prohibit Guns

The Ninth Circuit Court of Appeals has just handed down an important decision on gun rights. In what’s mostly a win for Second Amendment rights, the court has clarified the appropriate analysis to evaluate bans on guns being carried in certain places.

Hawaii and California both have laws that restrict the carrying of firearms in various "sensitive places," and both states are part of the Ninth Circuit of federal appellate courts. The Ninth Circuit is the largest federal appellate court in terms of geography and population, so its decisions have a large impact. It’s meaningful that two recent cases challenging the respective gun laws in California and Hawaii came to a head at this appellate court.

Let’s look at each case before we look at the Ninth Circuit’s decision in the consolidated appeal.

Hawaii’s New Gun Ban

The Hawaii case, Wolford v. Lopez, stemmed from Hawaii passing laws that prohibit carrying firearms in specific places. A significant increase in violent crimes involving firearms in Hawaii prompted state officials to enact a law aimed at curtailing mass shootings and gun violence in general.

That statute includes several provisions that regulate the carrying of firearms by individuals with concealed-carry permits. The law generally prohibits carrying firearms onto private property unless the owner allows it, and for public areas, it prohibits carrying firearms in specific locations. The specific locations where carrying firearms are prohibited include government buildings, bars and restaurants serving alcohol, recreational areas such as parks and beaches, and financial institutions such as banks. The firearms ban at financial institutions includes adjacent parking areas.

Three individuals living in Maui possessed permits to carry firearms, and they argued that the Hawaii law restricted their ability to carry firearms in specific locations they frequently visit. They contended that these restrictions violated their Second and Fourteenth Amendment rights, so they brought suit against the state. The Hawaii Firearms Coalition also joined as a plaintiff on behalf of its members with valid concealed carry permits.

California’s New Gun Ban

The California case, ­May v. Bonta, challenged the constitutionality of the state’s Senate Bill 2. That law significantly expanded the list of "sensitive places" where firearms are prohibited, even for individuals with concealed carry permits.

Individuals living in California with concealed carry permits, along with several gun rights organizations, brought a lawsuit against the state, arguing that the law effectively nullifies their Second Amendment rights by designating nearly every public place as a "sensitive place." This includes parks, playgrounds, public transportation, restaurants that serve alcohol, and private businesses unless explicitly marked otherwise. The plaintiffs claim that this extensive list lacks historical precedent and violates the Second Amendment, as interpreted by recent Supreme Court rulings, particularly New York State Rifle & Pistol Association v. Bruen. They also argue that SB 2 violates their due process rights by failing to provide adequate notice of where carrying firearms is prohibited and compels speech by requiring business owners to post signs if they allow firearms on their premises.

District courts in Hawaii and California respectively granted the plaintiffs a preliminary injunction against the prohibition on carrying firearms in their cases. After the states appealed, the two cases were consolidated and considered before the Ninth Circuit, which just handed down a ruling. In a 3-0 opinion, the appellate court clarified laws around guns by striking down some provisions of the states’ laws while letting others stand.

Bringing Bruen Back

The Ninth Circuit relied on the Supreme Court's guidance in various previous gun law cases, notably Bruen. The Ninth Circuit reiterated that the historical analysis required by the SCOTUS’s decisions leads to seemingly arbitrary and hard-to-explain distinctions in Second Amendment rulings. Though the panel relied on SCOTUS precedent, they also acknowledged the complexity and potential for further litigation arising from these interpretations.

The plaintiffs inBruen challenged a New York law that required individuals to demonstrate a special need for self-defense to receive an unrestricted license to carry a concealed firearm. In deciding the case, SCOTUS established a two-step methodology for deciding Second Amendment challenges. First, decide if the Second Amendment’s plain text covers an individual’s conduct; the Court ruled that the right to "bear arms" under the Second Amendment includes the right to public carry. The second step, if the Second Amendment applies, then ask if the government has justified the regulation.

But how are you supposed to answer the arbitrary question of whether there is sufficient “justification”? SCOTUS decided that the correct approach is to look at history and see whether there have been analogous regulations in the past. This historical analysis test is probably the most important upshot of Bruen, as it set guidance for future decisions on how to decide the constitutionality of other gun regulations.

Some Bans Stand, Others Must Go

The Ninth Circuit applied the Bruen test and looked at the history of place-based restrictions on carrying firearms. They observed that financial institutions and banks have existed since the country's founding, and yet the state attorneys did not provide any evidence of historical regulations prohibiting the carrying of firearms in banks or financial institutions. There were regulations concerning dynamic, congested gatherings (such as fairs, markets, or social gatherings), but the court said that these were not analogous to the more routine and commercial nature of banks.

As such, the court upheld the injunctions stopping the bans on banks and financial institutions. This includes the areas around them, such as parking lots. But the court reversed the injunctions as applied to many of the specified public places in the statutes, such as for places serving alcohol, parks and recreation areas, areas for youth, arenas, casinos, and their adjacent parking lots. Applying the same historical analysis test, the court found that there was a national historical tradition of prohibiting firearms in such places.

For example, from the colonial era onward, various laws regulated the mix of firearms and alcohol, such as prohibitions on carrying firearms while intoxicated and regulations preventing the militia from being near taverns or consuming alcohol during duty. Other historical laws banned firearms at public social gatherings, such as ballrooms and social parties. These laws show a tradition of prohibiting firearms in crowded places, which often included bars and restaurants.

This historical tradition made the current ban as applied to these places pass under the Second Amendment. The injunction preventing the ban in these places was overturned, as the court determined that the plaintiffs challenging the law were unlikely to succeed.

Private Property Bans Clarified

What about the rules regarding private property? The court split the baby on that one, finding Hawaii’s law was likely constitutional while California’s was not.

The court concluded that Hawaii's law, which allows property owners to consent either orally, in writing, or by posting appropriate signage, falls within the national historical tradition of regulating the default rules concerning carrying firearms onto private property. The court found historical regulations from the colonial and state periods, such as those from Pennsylvania, New Jersey, New York, and Oregon, as well as broader prohibitions from New Jersey in 1771 and Louisiana in 1865, established a tradition of arranging default rules for carrying firearms on private property. These regulations allowed property owners to consent in various ways, including orally or in writing, and did not mandate specific signage requirements.

On the other hand, the court found that California's law was too stringent and did not align with the national historical tradition of firearm regulation. California's law required property owners to consent to carrying firearms only by "clearly and conspicuously posting a sign at the entrance of the building or on the premises indicating that license holders are permitted to carry firearms on the property." The court found no historical support for such a stringent limitation. The court concluded that California's law differed substantially from historical laws, which allowed more flexible and immediate forms of consent.

Takeaways

The court did emphasize that you remain free to ban firearms on your property. The important part is that the government can’t decide this for you. In addition, the constitutional limits of what a state may ban do not affect the choices by legislatures in other states not to ban firearms.

In other words, the Ninth Circuit just put a ceiling on where firearms can be blanket-banned by state governments. This doesn’t mean that you can go into banks and other financial institutions and their parking lots with a gun if you have a concealed carry license. The banks remain free to ban them on their property, and we’ll presumably see more signs posted by these types of institutions reminding you not to come in with a gun.

But while the practical effects may not be very visible, the decision is still a major ideological victory for Second Amendment rights. And perhaps most importantly, it will give future challengers of similar gun laws a legal leg to stand on.

Related Resources:

• Can My Spouse Purchase or Carry a Gun for Me? (FindLaw's Law and Daily Life)
• Federal Courts Uphold Limits on Guns but Not Ammo (FindLaw's Federal Courts)
• Gun Laws Overview (FindLaw's Learn About the Law)