116 F.4th 959
9th Cir.2024Background
- In 2023 Hawaii enacted Act 52 (HRS §134-9.1 & §134-9.5): forbids permit-holders from carrying on 15 categories of property and flips the private-property default—firearms banned on private property unless owner consents (written/oral/signage).
- In 2023 California enacted SB 2 (Cal. Pen. Code §26230): forbids permit-holders from carrying onto 2-dozen+ categories of property and flips the private-property default for privately owned commercial property open to the public; consent is allowed only by a prescribed, conspicuous sign at the entrance.
- Plaintiffs (individual concealed-carry permit holders and organizations) sued the state attorneys general under 42 U.S.C. §1983 claiming Second Amendment violations; district courts issued broad preliminary injunctions against many statutory provisions.
- The Ninth Circuit applied Bruen’s historical-tradition test, guided by Rahimi’s clarification about analogical reasoning, to decide which modern locations qualify as constitutionally permissible “sensitive places.”
- The panel affirmed some injunctions (e.g., banks/financial institutions; hospitals and similar medical facilities in CA; public transit in CA; CA private-property default rule invalid as written) and reversed others (e.g., parks, many parks-adjacent parking rules, many amusement venues, bars/restaurants in some respects, and California’s strict signage-only consent rule for private property).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Parks and similar public green spaces | Parks are not historically analogous to modern parks; bans are unconstitutional | Modern parks were regulated in 19th c.; there is a tradition banning arms in parks | Court: States may prohibit firearms in most modern parks; plaintiffs unlikely to succeed on facial challenge |
| Private-property default rule (general) | Flipping the default burdens the right to carry on private property open to the public | States may set default rules for private-property access | Court: Historical practice supports States setting default requiring owner consent; Hawaii’s rule upheld in part |
| California private-consent-by-sign rule | Requiring only a state-prescribed sign to permit carry is unhistorical and unduly restrictive | State argues a uniform signage regime is a reasonable regulatory design | Court: CA’s signage-only consent deviates from historical practice; plaintiffs likely to prevail on that aspect |
| Bars and restaurants serving alcohol | Plaintiffs: bans are overbroad and lack historical analogue | States: long tradition separating alcohol/intoxication from firearms; direct 19th c. laws banning arms at drinking establishments | Court: bans on establishments that serve alcohol fall within tradition; plaintiffs unlikely to succeed |
| Playgrounds and youth centers | Plaintiffs: novel modern locations; no founding-era analogue | State: analogous to parks/schools; historically regulated as sensitive places | Court: Plaintiffs unlikely to succeed; playgrounds/youth centers fall within tradition via parks/schools analogy |
| Places of worship | Plaintiffs: no pre- or contemporaneous national tradition banning arms in houses of worship | State: post‑Fourteenth Amendment statutes and public‑safety justifications support regulation | Court: No pre‑1868 tradition found; plaintiffs likely to succeed (state may not categorically ban where owner/operator permits) |
| Financial institutions (banks) | Plaintiffs: banks are sensitive places that may be regulated | State: banks historically not the subject of a national ban; but private owners and state proprietors can exclude | Court: Plaintiffs likely to prevail (no historical tradition supporting a state ban), though private owners may still exclude by property law; injunction affirmed re banks |
| Hospitals and similar medical facilities (CA) | Plaintiffs: no historical tradition banning arms in medical facilities | State: modern hospitals are vulnerable places; analogous 19th c. bans on assemblies justify regulation | Court: No historical tradition of bans found; plaintiffs likely to succeed in CA (injunction affirmed) |
| Public transit (CA) | Plaintiffs: modern transit ban is overbroad (no close analogue) | State: 19th c. railroad rules and authority over public transit justify regulation | Court: Historical analogues limited to checked/unloaded firearms; CA’s categorical ban lacks analogous exceptions (e.g., secured/unloaded); plaintiffs likely to succeed |
| Parking areas connected to sensitive places | Plaintiffs: many parking areas are insufficiently connected and law is overbroad on its face | State: parking lots can be integral to sensitive places and buffer zones have historical precedent | Court: Some parking areas (e.g., those integral to courthouses, fenced or exclusive lots) may be regulated; facial challenge fails in CA but in HI plaintiffs prevailed as to shared government/non‑government lots (standing issues addressed) |
| Gatherings requiring a permit | Plaintiffs: permits-based category is too broad and lacks founding-era tradition | State: bans on public gatherings long recognized; permit gatherings are a subset | Court: No founding-era tradition; plaintiffs likely to succeed as to CA’s permits-based blanket ban |
Key Cases Cited
- New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) (sets historical‑tradition test and outlines “sensitive places” methodology)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (establishes individual right to possess firearms for self‑defense and recognizes longstanding sensitive‑places exceptions)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates the Second Amendment against the States)
- United States v. Rahimi, 144 S. Ct. 1889 (2024) (clarifies Bruen; permits analogical, principle‑based inquiry where direct historical twins are lacking)
- Building & Construction Trades Council v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218 (1993) (States may act in proprietary capacity to manage state‑owned property)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) (standing principles cited regarding prosecutorial threat and preenforcement challenges)
- United States v. Salerno, 481 U.S. 739 (1987) (facial‑challenge standard cited)