George M. Lee

Partner, Seiler Epstein LLP

Business and Strategic Litigation, Civil Rights, Civil Trials and Appeals

Phone: (415) 979-0500

Email: gml@seilerepstein.com

In New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court held that the Second Amendment protects an individual's right to carry a handgun for self-defense outside the home. Bruen invalidated New York State's "proper cause" requirement for carrying arms in public for self-defense. More broadly, Bruen also repudiated the lower courts' methodology in Second Amendment cases. The means-ends scrutiny tests that had almost uniformly been adopted by the circuit courts was abolished, and Bruen reaffirmed that challenges to gun regulations would be decided by the plain text of the Second Amendment, and that courts could uphold such regulations only if they are consistent with the nation's historical tradition of firearms regulation.

This historical test "requires courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." In providing further guidance, the Court specifically used the example of Heller's "'longstanding' laws forbidding the carrying of firearms in sensitive places such as schools and public buildings." Thus, the Court said that even if history revealed relatively few 18th century "sensitive places" where weapons were prohibited, lower courts could "use analogies to those historical regulations of 'sensitive places' to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible." 597 U.S. at 30.

The response of some state governments was a paroxysm of laws designed to restrict the carry of concealed weapons in virtually all public places. While the majority opinion in Bruen specifically called out New York City for trying to effectively declare the entire island of Manhattan a "sensitive place," (597 U.S. at 31), the legislative responses to Bruen were designed to accomplish the same result by designating virtually all public places as "sensitive places." Only one week after Bruen was decided, the New York legislators introduced the Concealed Carry Improvement Act. When asked where licensees could be able to carry if the law were passed, New York Governor Kathy Hochul said, "probably some streets." (N.Y. Democrats to Pass New Gun Laws in Response to Supreme Court Ruling, New York Times June 30, 2022).

Hawaii and California followed suit, in likewise enacting reflexive laws in direct response to Bruen, which were designed to eliminate the carrying of firearms in all public places, and then some. Hawaii enacted Act 52, which prohibited a person with a carry permit from bringing a firearm onto fifteen types of property. And in California, the Legislature enacted Senate Bill 2, California's legislative response to Bruen. State senator Anthony Portantino, the bill's primary author and sponsor, touted it as being "constitutional and consistent" with Bruen," but at the same time, quoted supporting statements from gun control organizations criticizing the Bruen decision as "misguided." In a press conference announcing this legislation, Governor Newsom also called the Bruen decision "an absurdity." A Senate analysis claimed that the bill purported to further conform California concealed carry law to Bruen by designating "several" sensitive places where licensees would be prohibited from carrying their firearms, but then went on to list "26 specific places, as well as any other place prohibited by local, state or federal law." (Sen. Floor Analysis Sept. 11, 2023, p. 9.)

Legal challenges were filed in both states. In Wolford v. Lopez, No. 23-16164, 2024 WL 4097462 (9th Cir. Sept. 6, 2024), the 9th Circuit considered the consolidated appeals, attempting to draw the lines regarding the carrying of concealed firearms in both public and private places under Bruen's historical test.

Methodology

Since the conduct proscribed by the laws fell within the plain text of the Second Amendment, the court in Wolford primarily examined whether the states could show that their laws were consistent with the Nation's historical tradition of firearm regulation. In applying this historical analysis, the court held that for places that have existed since the Founding era, it would look to historical regulations similar in number and timeframe to those cited in Bruen as justification for designating other places as sensitive. For newer locations, the court sought analogous regulations, finding that it would be illogical to expect regulations for places that did not exist in their modern form at the Founding.

For both types of places, the court emphasized, historical regulations need not be a "close match" to the laws at issue, they need only evince a "principle underpinning our Nation's historical tradition" of regulating firearms in places "relevantly similar" to those at issue.

Key Rulings on "Sensitive Places"

Parks and Similar Areas: The court held that bans on firearms in parks are likely constitutional. It found that as soon as modern parks arose in the mid-19th century, municipalities and states began enacting laws prohibiting firearms in parks. The court viewed these widespread, uncontroversial regulations as establishing a historical tradition analogous to other sensitive places recognized by the Supreme Court. Considering them to be a subset of schools and parks, the court also upheld bans on playgrounds and youth centers. The court also rejected the California plaintiffs' arguments that state parks are distinct from parks in urban areas.

Bars and Restaurants Serving Alcohol: The court upheld bans on firearms in establishments serving alcohol. It identified three relevant sets of historical regulations: those separating firearms and intoxication, those prohibiting firearms at social gatherings, and later-enacted laws directly banning firearms in taverns and similar establishments. The court found these regulations, enacted both before and shortly after the Fourteenth Amendment's ratification, sufficiently analogous to modern laws.

Places of Worship: In a close decision, the court found bans on firearms in places of worship likely unconstitutional. The court noted the lack of any regulations banning firearms in places of worship from colonial times through the ratification of the Fourteenth Amendment. While acknowledging some post-1868 laws prohibiting firearms in churches, the court deemed these insufficient to establish a historical tradition comparable to other sensitive places.

Financial Institutions: The court held that bans on firearms in banks are likely unconstitutional. Despite banks existing since the Founding, the court found no evidence of historical regulations prohibiting firearms in banks or analogous places. The court rejected arguments that regulations on fairs, markets, or government buildings were sufficiently analogous to justify bans in modern banks.

Private Property "Default Rules": Probably the most controversial issue was the "default rule" (which some of the plaintiffs took to calling the "vampire rule"), which prohibited the carrying of firearms onto private property without the property owners' consent. The result was a split decision. The court found Hawaii's law, which allows property owners to consent orally, in writing, or by posting signs, consistent with historical tradition. However, it deemed California's more restrictive law, which only allows consent through posted signs, likely unconstitutional. The court based this distinction on historical laws that allowed property owners various means of granting permission for firearms on their property.

The panel acknowledged that upholding Hawaii's default/vampire rule is in conflict with other circuit courts to have considered a similar law. Its holding, if it survives en banc review, likely creates a circuit split that may ultimately be resolved by the Supreme Court.

Places of Worship: The court ruled that the plaintiffs are likely to succeed in their challenge to California's law prohibiting carrying firearms in places of worship. The court reasoned that places of worship have existed since before the Founding, and it did not find a tradition of banning firearms in places of worship comparable to bans in other sensitive places like schools and polling places. The court found no regulations banning firearms in places of worship from colonial times through the ratification of the Second Amendment and continuing through the ratification of the Fourteenth Amendment.

Public Transit: The court found California's categorical ban on firearms in public transit likely unconstitutional. While acknowledging some historical regulations of firearms on trains, the court found that the state's ban effectively eviscerates the right to carry for people who rely on public transportation, noting no exception allowing for the carrying of an unloaded and secured firearm.

Conclusion

The court's mixed decision illustrates the courts' apparent struggles in applying Bruen's historical test. The court acknowledged this apparent arbitrariness of its decision but emphasized that this result stems from "[t]he deep historical analysis required by the Supreme Court," and forewarned that "the seemingly arbitrary nature of Second Amendment rulings undoubtedly will inspire further litigation as state and local jurisdictions attempt to legislate within constitutional bounds."

This decision was a review of the district courts' rulings on preliminary injunctions. Further proceedings at the district court level, en banc review (which the plaintiffs are seeking), or Supreme Court intervention could alter the final outcome as to any "sensitive place." It should also be noted that the panel was considering the plaintiffs' likelihood of prevailing on their facial challenges to Hawaii and California's laws. As-applied challenges, which involve a more particularized set of facts and circumstances, could result in different outcomes.