Federal Appeals Court Blocks California’s New Limitations On Concealed Carry

By Joe Dworetzky –

While the federal courts are not generally celebrated for their speed in resolving cases, in some situations court followers can get whiplash trying to keeping track of developments. May v. Bonta – an important decision on the scope of Second Amendment rights – provides the latest example.

On Saturday, the federal appeals court in San Francisco entered an order leaving in place a controversial decision from Los Angeles that at least temporarily struck down a California law limiting where permit holders may carry concealed weapons.

The complicated and twisting history begins Sept. 26, 2023, when Gov. Gavin Newsom signed into law Senate Bill 2, a bill that among other things designated 26 places in the state as “sensitive locations” where holders of concealed carry permits cannot bring their concealed weapons.

The new locations included establishments that serve alcohol, hospitals, places of worship, playgrounds, stadiums, zoos and banks. These locations joined a much shorter list of places — courthouses, public buildings, and schools — that were in California law.

On the same day the bill was signed, a group of gun rights organizations and 14 individuals who hold permits to carry concealed weapons filed a lawsuit in U.S District Court for the Southern District of California, challenging SB2 and asking that it be put on hold — technically “enjoined” — before it took effect on Jan. 1, 2024. The plaintiffs alleged that their right to bear arms under the Second Amendment was unduly burdened by the law and they would suffer irreparable injury if it took effect.

On Dec. 20, U.S. District Court Judge Corman Carney released a 42-page decision which entered a “preliminary” injunction against including many of the newly designated sensitive locations. The injunction was preliminary because there was not enough time before the law became effective to hold a full trial, so the court order was to apply only during the time for the usual processes of preparing and trying a case in federal court.

California Attorney General Rob Bonta quickly appealed the order and, on Dec. 22, he requested the United States Court of Appeals for the 9th Circuit to suspend the preliminary injunction so SB2 could take effect as scheduled on Jan. 1.

Given the exigencies of the schedule, on Dec. 30, an emergency panel of three judges considered the request and they granted an “administrative stay” that suspended the District Court order. However, the administrative stay was a temporary order only lasting until another panel of judges, the “merits panel” — that is the ones who would ultimately consider the merits of the appeal — had time to consider the request.

In light of the administrative stay, SB2 took effect on Jan. 1 as scheduled and holders of concealed carry permits had to leave their weapons at home when they went to bars or stadiums or hospitals.

But that state of affairs lasted only six days.

On Saturday, two of the three judges on the merits panel — the third member was said to be “unavailable to consider these pending matters” — vacated the administrative stay and reinstated Judge Carney’s order. The effect was to allow concealed carry by permit holders at the sensitive areas the plaintiffs had challenged, subject to further order of the court.

According to Chuck Michel, one of the plaintiffs’ lawyers and president and general counsel of the California Rifle and Pistol Association, the order of the merits panel simply returned the situation to the status quo before SB2, allowing permit holders to carry concealed weapons in the places where they have been allowed to do so in the past.

The procedural skirmish comes in a high stakes case where the parties hold sharply different positions.

Supreme Court cases have recognized an individual right to carry weapons. While that right is not unlimited, the scope of those limitations remains in hot dispute.

In the 2022 decision of New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court said that concealed weapons could be barred in certain sensitive areas but only where there was strong historical evidence that it was consistent with “the Nation’s historical tradition of firearm regulation.” But how that framework should apply to locations and activities that did not exist historically in the same way as they do in modern society was not resolved.

In enacting SB2, the California legislature took a broad view of what met the constitutional standards and the 26 newly designated categories covered a wide swath of locations throughout the state, substantially limiting where a permit holder or licensee could carry a concealed weapon.

Michele characterized the approach as “trying to red tape the Second Amendment.” He said, “this was an attempt by the California legislature to get around the Bruen decision by making these licenses useless.”

Judge Carney agreed with Michel.

He found the law “sweeping” and concluded that not only was it “repugnant to the Second Amendment, it was “openly defiant of the Supreme Court.”

He found that California’s approach “turns nearly every public place in California into a ‘sensitive place,’ effectively abolishing the Second Amendment rights of law-abiding and exceptionally qualified citizens to be armed and to defend themselves in public.”

In Carney’s view, SB2 targeted the wrong gun owners. Instead of focusing on criminals, it targeted permit holders.

He said that in order to get a concealed weapon permit in California, the applicant must go through a rigorous process including background checks, finger printing and “a full-day, hands-on training course in which the person must demonstrate they can safely and proficiently use the handgun they seek to carry in public.”

Carney wrote “We live in dangerous times…. The right to self-defense and to defend one’s family is fundamental and inherent to our very humanity…”

Carney was appointed to the federal bench in 2003 after being appointed by George W. Bush. He served as a judge on the Orange County Superior Court from 2001 to 2003.

Saturday’s ruling is far from the end of the matter. Arguments on the appeal of the preliminary injunction are scheduled before the merits panel in April and a decision will likely follow in the next several months. After that, the losing party may try to convince the full appeals court that the panel was wrong and after that one of the parties may ask the Supreme Court to weigh in.

The Attorney General’s Office did not respond to a request for comment on the ruling, but in previous court filings it said that failure to implement SB2 would be “threatening” to public safety during the pendency of the appeals.