In Wolford v. Lopez,[1] the Ninth Circuit Court of Appeals affirmed in part and reversed in part a District Court’s grant of a preliminary injunction sought by plaintiffs seeking to enjoin many portions of California Penal Code section 26230, which generally prohibits a person with a concealed-carry permit from carrying a firearm onto more than two dozen types of property.
Background
In its modern decisions concerning the Second Amendment, the Supreme Court of the United States has emphasized that its rulings do not call into question longstanding laws prohibiting the carry of firearms at sensitive places such as schools and government buildings. In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022), the Court provided specific guidance on how to determine what kinds of places qualify as “sensitive places” such that firearms may be prohibited. Id. at 30-31.
In 2023, the California legislature enacted Senate Bill 2, codifying, as relevant here, Penal Code section 26230. The law generally prohibits a person with a concealed-carry permit from carrying a firearm onto more than two dozen types of property. Section 26230(a).[2] California also generally prohibits the carry of firearms onto private property that is open to the public unless the owner allows it by clearly posting a sign at the entrance to the premises indicating that licenseholders are permitted to carry firearms onto the property. Section 26230(a)(26). Other forms of permission, such as oral or written consent, do not suffice under this private property default rule.
Plaintiffs, individuals with concealed-carry permits who live in California and various gun-related organizations whose members hold concealed-carry permits, brought two separate actions under 42 U.S.C. section 1983 against Defendant Rob Bonta, in his official capacity as Attorney General of the State of California, alleging that many provisions of the new law violated their Second Amendment right to keep and bear arms.[3]
Plaintiffs moved for a preliminary injunction, seeking to enjoin many portions of Section 26230. The District Court issued an opinion addressing the motions in both cases, and granted in full the requested injunctive relief.[4] Specifically, the District Court enjoined Defendant from implementing the law concerning California’s ban on concealed carry in hospitals; playgrounds; public transit; parks and athletic facilities; property controlled by the Parks and Recreation Department; bars and restaurants that serve alcohol; gatherings that require a permit; libraries; casinos; zoos; stadiums and arenas; amusement parks; museums; places of worship; banks; and all parking lots adjacent to sensitive places, including sensitive places unchallenged by Plaintiffs. The District Court also enjoined the new default rule for private property held open to the public in Section 26230(a)(26).
Defendant appealed in both cases, and the appeals were consolidated by the Ninth Circuit Court of Appeals.
Discussion
The Ninth Circuit Court of Appeals initially noted that to warrant the extraordinary relief of a preliminary injunction, Plaintiffs must show a likelihood of success on the merits, irreparable harm in the absence of preliminary relief, a favorable balance of the equities, and favorable public interest in an injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because the government was a party, the “last two factors merge[d].” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The Court’s opinion focused largely on the first element, the likelihood of success on the merits.
The Court of Appeals noted that in Bruen, the Supreme Court announced the appropriate general methodology for deciding Second Amendment challenges to state laws: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” 597 U.S. at 24. Bruen observed that when confronting cases implicating unprecedented societal concerns or dramatic technological changes involving present-day firearm regulations, “this historical inquiry that courts must conduct will often involve reasoning by analogy . . . . [D]etermining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar.’” See Id. at 27-29 (citation omitted). Analogical reasoning “is neither a regulatory straightjacket nor a regulatory blank check.” Id. at 30. The government must “identify a well-established and representative historical analogue, not a historical twin” or a “dead ringer.” Id.
In United States v. Rahimi, 144 S. Ct. 1898 (2024), the Supreme Court clarified that Bruen did not require stringent adherence to Founding-era laws, emphasizing that its “precedents were not meant to suggest a law trapped in amber.” Id. at 1897. Instead of looking for a precise historical match, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Id. at 1898. The Court emphasized that a challenged law “must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” Id. (quoting Bruen, 597 U.S. at 30). Rahimi instructed that, even where historical analogues are not close matches to the challenged law, they may evince principles underpinning our Nation’s regulatory tradition, and it is sufficient for the government to show that its law is consistent with those principles.
The Ninth Circuit stated, “Our Nation has a clear historical tradition of banning firearms at sensitive places. Bruen, 597 U.S. at 30; McDonald, 561 U.S. at 786 (plurality opinion); Heller, 554 U.S. at 626.” Heller stated that “…nothing in our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” 554 U.S. at 626. The Ninth Circuit added that when considering the “sensitive places” doctrine, courts look to the understanding of the right to bear arms both at the time of the ratification of the Second Amendment in 1791 and at the time of the ratification of the Fourteenth Amendment in 1868.[5] The Bruen Court remarked that it was not aware of any disputes regarding the lawfulness of prohibitions in the relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, schools, and courthouses. The Bruen Court stated that it therefore could “assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment. And courts can 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 (one citation omitted).
The Ninth Circuit concluded that the proper approach for determining whether a place is sensitive is as follows: For places that have existed since the Founding, it suffices for government defendants 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, government defendants must point to regulations that are analogous to the regulations cited by the Supreme Court, taking into account that it is illogical to expect a government to regulate a place before it existed in its modern form. 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 Court added that a key factor in this determination is whether the constitutionality of the historical regulations was disputed. A dispute as to constitutionality could tip the scales in favor of Plaintiffs here, particularly if the evidence in favor of the defendants was weak. Bruen, 597 U.S. at 27. If the constitutionality of historical laws went undisputed in the courts in the Nation’s early years, that evidence would suggest that the laws were constitutional. Id. at 30. The Court stated that one way that State defendants could show a historical tradition is by establishing that, when a type of place first arose, or first arose in modern form, states and municipalities began to regulate the possession of firearms at that type of place, the regulations were considered constitutional at the time, and the regulations were comparable to a tradition of regulating a similar place or places in the earlier years of the Nation.
The Court of Appeals then applied these principles to the specific challenges here. the Court addressed the injunctions with respect to: (1) parks and similar areas; (2) playgrounds and youth centers; (3) bars and restaurants that serve alcohol; (4) places of amusement; (5) parking areas connected to sensitive places; (6) the default rule on private property; (7) places of worship; (8) gatherings that require a permit; (9) financial institutions; (10) hospitals and other medical facilities; and (11) public transit.
1. Parks and Similar Areas
Section 26230(a)(12) prohibits the carry of firearms in a “park.” The Court of Appeals found the record easily supported a determination that the public green spaces that existed in 1791 were not comparable to modern parks. The Court observed that as soon as modern parks arose in the middle of the 19th century, municipalities and states enacted laws prohibiting the carrying of firearms into parks. Those laws both pre-dated and post-dated 1868, and nothing in the record suggested that courts considered the laws unconstitutional. The Court found the laws were analogous to other historical laws establishing a national historical tradition of banning firearms at sensitive places. The Court thus concluded that plaintiffs were unlikely to succeed on their facial challenge as to parks. Because of the national historical tradition of banning firearms at a wide array of parks, the Court found that the state laws here are constitutionally valid with respect to many, if not all, of the parks in California. Accordingly, Plaintiffs’ facial challenges failed. The Court thus held that Plaintiffs were unlikely to succeed with respect to the challenged state laws’ provisions concerning parks. Moreover, this conclusion with respect to parks applied equally to other, related places, such as beaches, athletic areas, athletic facilities, and most real property under the control of the Department of Parks and Recreation or Department of Fish and Wildlife.[6] The Court found no reason why the analysis with respect to parks did not apply equally to those places as well, and Plaintiffs had not argued on appeal that those places differed meaningfully from parks.
2. Playgrounds and Youth Centers
The Ninth Circuit stated that playgrounds did not exist in modern form at the time of the Founding (or even at Reconstruction); playgrounds are found primarily at schools and parks; both categories of places qualify as “sensitive places” that have a historical tradition of firearm bans; by extension, there is a historical tradition of banning firearms at playgrounds. Plaintiffs do not present any separate argument concerning youth centers, which are akin to schools. The Court of Appeals noted that except for the District Court in this case, every court had rejected the argument that firearms must be allowed on playgrounds. The Court of Appeals concluded that Plaintiffs were unlikely to succeed in their challenge to Penal Code section 26230(a)(11), which prohibits carry in “[a] playground or public or private youth center, as defined in Section 626.95, and a street or sidewalk immediately adjacent to the playground or youth center.”
3. Bars and Restaurants that Serve Liquor
Penal Code section 26230(a)(9) prohibits carry in establishments “where intoxicating liquor is sold for consumption on the premises.” The Court observed that establishments serving alcohol have existed since the Founding, and Defendants pointed to four laws between 1853 and 1890 that were directly on point in that they prohibited firearms at such establishments.[7] The four on-point laws were enacted both before and soon after the ratification of the Fourteenth Amendment and are similar in all material respects to California’s modern laws; the historical laws were consistent with and related to the similar traditions of separating firearms and the intoxicated and of separating firearms and crowds; and no evidence suggested to the Court that any of the laws were viewed as unconstitutional. The Court concluded that these on-point laws together with other laws that were not directly on point established that bars and restaurants that sell alcohol are among the Nation’s “sensitive places” where firearms may be prohibited. The Court found that California’s modern laws were consistent with the principles that underpin our regulatory tradition of prohibiting the carry of firearms at sensitive places. Thus, the Court held that Plaintiffs were unlikely to succeed on their claims with respect to places that serve alcohol.
4. Places of Amusement
The Ninth Circuit next considered Section 26230(a) with respect to places of amusement: casinos, stadiums, amusement parks, zoos, museums, and libraries.[8] The Court analyzed these social gathering places for amusement as a group, remarking that the latter three places are places visited not only for amusement but also for educational purposes.[9] The Court noted that both before and shortly after the ratification of the Fourteenth Amendment, cities, states, and territories prohibited firearms at a wide range of places for social gathering and amusement that were analogous to these modern counterparts. The evidence indicated that courts were in agreement that those historical laws were constitutional. Moreover, some state court decisions at the time expressly rejected arguments that the provisions conflicted with the Second Amendment. The Court determined that the extensive set of historical regulations banning firearms at places of amusement and social gathering, consistently upheld and accepted as constitutional, justified the conclusion that modern-day places of amusement such as casinos, stadiums, amusement parks, zoos, museums, and libraries fall within the national historical tradition of prohibiting firearms at sensitive places. The Ninth Circuit held that Plaintiffs were unlikely to prevail in challenging Section 26230 with respect to casinos, stadiums, amusement parks, zoos, museums, and libraries.
5. Parking Areas Connected to Sensitive Places
Penal Code section 26230(a) prohibits concealed carry in many parking areas associated with the sensitive places listed in that section.[10] The District Court held that Plaintiffs were likely to succeed in challenging Penal Code section 26230 as it pertains to all parking areas listed in that section. The preliminary injunction therefore allowed concealed carry in the parking areas at most listed places, even those not challenged by Plaintiffs. Thus, in addition to parking areas at most of the sensitive places at issue here, the injunction applied to parking areas at preschools, childcare facilities, government buildings, courthouses, jails, prisons, juvenile detention centers, schools, airports, nuclear power plants, and police stations.[11] The Court of Appeals, however, rejected the lower court’s sweeping conclusion, and instead held that Plaintiffs were unlikely to succeed on this claim.
The Ninth Circuit explained that some parking areas are so structurally intertwined with the main structure of a sensitive area that they would be considered part of that area,[12] while others likely fall within a reasonable buffer zone such that firearms may be prohibited there.[13] The Court agreed with those courts that had held that, depending on the factual circumstances, firearms may be prohibited at some parking areas connected to sensitive places. Thus, to the extent that Plaintiffs suggested that firearms may never be prohibited in parking areas, no matter the circumstances, the Court rejected that position. Plaintiffs primarily argued that because some parking areas are insufficiently connected to a sensitive place such that the parking area is not reasonably covered by the ban on firearms at the sensitive place, and it would be unconstitutional to ban concealed carry in those parking areas, California’s ban must fail on its face. The Court disagreed, explaining that because the law’s reach is constitutional in many legitimate instances, the facial challenge must fail. Plaintiffs could have asked for more tailored relief with respect to parking areas, but they did not do so here. The Ninth Circuit accordingly held that Plaintiffs were unlikely to prevail on their facial challenge with respect to parking areas at all sensitive places.
6. Private-Property Default Rule
The District Court held that Plaintiffs were likely to succeed on their challenge to the ban on the carry of firearms on private property held open to the public unless the owner or operator consents. Penal Code section 26230(a)(26) allows a property owner to consent only by “clearly and conspicuously post[ing] a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.” A property owner’s oral or written consent does not suffice under this provision.
The Ninth Circuit affirmed the preliminary injunction with respect to this default rule as to private property. The Court first concluded that the conduct proscribed by the California law falls within the text of the Second Amendment at the first step of the Bruen analysis. The Ninth Circuit agreed with the Second Circuit that the Second Amendment encompasses the right to bear arms not only in publicly owned spaces, but also on private property that is generally open to the public. Antonyuk, 89 F.4th at 383-84.[14] The Court decided that Plaintiffs were likely to succeed at the first step of the Bruen analysis and considered whether Defendants had shown a relevant national historical tradition.
After reviewing colonial and State laws enacted shortly before the ratification of the Second Amendment and very shortly before the ratification of the Fourteenth Amendment, the Court of Appeals determined that the Nation has an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property. These historical laws were uncontroversial and the Ninth Circuit deemed them easily analogous to the “sensitive places” laws mentioned by the Supreme Court.
However, the Ninth Circuit concluded that California’s law fell outside the historical tradition. California prohibits the carry of firearms on private property only if the owner has consented in one specific way: posting signs of a particular size. The Court found no historical support for this stringent limitation. Nor did modern circumstances appear to justify California’s imposing a much more stringent consent requirement; ordinary signs existed in 1791, in 1868, and today.
7. Places of Worship
Penal Code section 26230(a)(22) prohibits the carry of firearms at places of worship. The Court observed that places of worship have been prevalent throughout our Nation’s history, but no colony, state, or territory banned firearms at places of worship until after the ratification of the Fourteenth Amendment. At this preliminary stage, therefore, the Court concluded that Plaintiffs were likely to succeed on their Second Amendment challenge with respect to Section 26230(a)(22).
However, the Court emphasized that nothing in the law nor this opinion prohibits the owner or operator of a place of worship from prohibiting the carry of firearms as a matter of ordinary property law, consistent with the requirements of state law. The preliminary injunction meant only that the State cannot ban firearms from places of worship where the owner or operator wishes to allow firearms there. The Court added that it expressed no view on the constitutional analysis once the parties had a full opportunity to present and brief the issue.
8. Gatherings that Require a Permit
Penal Code section 26230(a)(10) prohibits carry in “[a] public gathering or special event conducted on property open to the public that requires the issuance of a permit from a federal, state, or local government and sidewalk or street immediately adjacent to the public gathering or special event but is not more than 1,000 feet from the event or gathering, provided this prohibition shall not apply to a licensee who must walk through a public gathering in order to access their residence, place of business, or vehicle.” Because no jurisdiction had prohibited the carry of firearms at public gatherings until after the ratification of the Fourteenth Amendment, the Ninth Circuit held that Plaintiffs were likely to succeed on their challenge to Section 26230(a)(10).
9. Financial Institutions
Penal Code section 26230(a)(23) prohibits the carry of firearms in financial institutions such as banks. The Ninth Circuit stated that modern banks are roughly the same as banks in 1791. The California Attorney General did not argue to the contrary nor point to any historical regulation prohibiting carry in another type of place analogous to a bank or financial institution. The Court concluded that Plaintiffs were likely to succeed on the challenge to the prohibition on carrying firearms in financial institutions. The Court noted that, as with places of worship, nothing in its opinion precludes a financial institution from banning firearms as a matter of property law, consistent with applicable state law. The preliminary injunction means merely that any bank operator who wishes to allow firearms on site may do so.
10. Hospitals and Other Medical Facilities
Penal Code section 26230(a)(7) prohibits carry in “[a] building, real property, and parking area under the control of a public or private hospital or hospital affiliate, mental health facility, nursing home, medical office, urgent care facility, or other place at which medical services are customarily provided.” Although modern hospitals and medical facilities do not resemble the hospitals at the Founding, the Court noted that medical facilities of some sort have existed since colonial times. Moreover, the California Defendant had not introduced any evidence of a historical ban on firearms in medical facilities of any type. The Ninth Circuit held that Plaintiffs were likely to succeed on their challenge to California’s prohibition of firearms at hospitals and other medical facilities, again emphasizing that nothing prevented an operator of a medical facility—whether privately owned or State-run—from banning firearms under ordinary principles of property law. See Bldg. & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U.S. 218, 231 (1993) (explaining that a State generally may “manage its own property when it pursues its purely proprietary interests . . . where analogous private conduct would be permitted”).
11. Public Transit
Penal Code section 26230(a)(8) prohibits carry in “[a] bus, train, or other form of transportation paid for in whole or in part with public funds, and a building, real property, or parking area under the control of a transportation authority supported in whole or in part with public funds.” The Ninth Circuit noted that unlike other parts of the law, Section 26230(a)(8) contains no exceptions for carrying an unloaded and secured firearm.
From its examination of the 19th century railroad rules, the Court concluded that Defendant likely had proved a historical tradition of prohibiting the carry of loaded firearms or the carry of firearms not properly stored. However, the Court found that California’s broad law did not fit that more limited tradition. The Court explained that Section 26230 provides exceptions applicable to the carry of firearms in private vehicles. First, the law allows a person to transport a firearm in a private vehicle if the firearm is locked in an appropriate lock box. Section 26230(b). Second, the law allows a person to store a firearm in a private vehicle in most parking areas where carriage of a firearm is otherwise prohibited, provided that certain requirements are met. Section 26230(c). However, Section 26230 did not appear to have—and Defendant did not argue that California’s law has—a similar exception on public transit, allowing (for example) the carry of an unloaded and secured firearm on a bus. Because the ban was categorical, the Court of Appeals decided that Plaintiffs were likely to succeed on the challenge the broad prohibition on the carry of firearms on public transit. However, the Court stressed that its holding “hinges on the law’s categorical nature. A ban on the carry of firearms on public transit almost certainly would be constitutionally permissible if the law allowed the carry of unloaded and secured firearms.”
For the challenges as to which Plaintiffs failed to show a likelihood of success, the Court of Appeals reversed the preliminary injunction. For the challenges as to which Plaintiffs had shown a likelihood of success, the Ninth Circuit turned to the remaining two Winter factors: In addition to showing a likelihood of success, Plaintiffs had to demonstrate that they would suffer irreparable harm in the absence of preliminary relief and that injunctive relief was consistent with the equities and the public interest. Winter, 555 U.S. at 20.
For the challenges as to which Plaintiffs had shown a likelihood of success, the Court affirmed the preliminary injunction. The Court explained that it reviewed for abuse of discretion the grant of a preliminary injunction; each claim alleged a violation of a constitutional right, which strongly suggested that the remaining Winter factors were met. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); and finally, the injunction here merely preserved the status quo before each law was set to go into effect. City & County of San Francisco v. USCIS, 944 F.3d 773, 789 (9th Cir. 2019). The Court did not find the District Court abused its discretion in granting preliminary relief for the challenges as to which Plaintiffs had shown a likelihood of success.
In sum, the Ninth Circuit Court of Appeals affirmed the injunction with respect to 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, and the new default rule as to private property. The Court otherwise reversed the preliminary injunction, thereby reversing the injunction with respect to bars and restaurants that serve alcohol, playgrounds, youth centers, parks, athletic areas, athletic facilities, most real property under the control of the Department of Parks and Recreation or Department of Fish and Wildlife, casinos and similar gambling establishments, stadiums, 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. More specifically, the Ninth Circuit affirmed the injunction insofar as it enjoined the Attorney General from implementing or enforcing Penal Code sections 26230(a)(7), (8), (10), (22), (23), and (26). The Court reversed the injunction insofar as it enjoined Defendant from implementing or enforcing Penal Code sections 26230(a)(9), (11), (12), (13), (15), (16), (17), (19), and (20) and insofar as it enjoins Defendant from implementing or enforcing Penal Code section 26230(a) with respect to parking areas connected to sensitive places.
HOW THIS AFFECTS YOUR AGENCY
Agencies will observe that Ninth Circuit predicts 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.”
Agencies may also note that in its concluding remarks, the Court emphasized that “owners of private property remain free to ban the carry of firearms on their private property. Nothing in the Second Amendment disturbs that basic background principle of property law. For the places where we hold that the States likely may not prohibit the carry of firearms, the practical effect of our ruling is merely that private-property owners may choose to allow the carry of firearms. Owners of hospitals, banks, and churches, for example, remain free to ban firearms at those locations.”
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at (jrt@jones-mayer.com).
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 2024 U.S. App. LEXIS 22698 (9th Cir. Sep. 6, 2024).
[2] As relevant here, Section 26230(a) provides: “A person granted a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person pursuant to Section 26150, 26155, or 26170 shall not carry a firearm on or into any of the following:
(1) A place prohibited by Section 626.9.
(2) A building, real property, or parking area under the control of a preschool or childcare facility, including a room or portion of a building under the control of a preschool or childcare facility. Nothing in this paragraph shall prevent the operator of a childcare facility in a family home from owning or possessing a firearm in the home if no child under child care at the home is present in the home or the firearm in the home is unloaded, stored in a locked container, and stored separately from ammunition when a child under child care at the home is present in the home so long as the childcare provider notifies clients that there is a firearm in the home.
(3) A building, parking area, or portion of a building under the control of an officer of the executive [*22] or legislative branch of the state government, except as allowed pursuant to paragraph (2) of subdivision (b) of Section 171c.
(4) A building designated for a court proceeding, including matters before a superior court, district court of appeal, or the California Supreme Court, parking area under the control of the owner or operator of that building, or a building or portion of a building under the control of the Supreme Court, unless the person is a justice, judge, or commissioner of that court.
(5) A building, parking area, or portion of a building under the control of a unit of local government, unless the firearm is being carried for purposes of training pursuant to Section 26165.
(6) A building, real property, and parking area under the control of an adult or juvenile detention or correctional institution, prison, or jail.
(7) A building, real property, and parking area under the control of a public or private hospital or hospital affiliate, mental health facility, nursing home, medical office, urgent care facility, or other place at which medical services are customarily provided.
(8) A bus, train, or other form of transportation paid for in whole or in part with public funds, and a building, real property, or parking area under the control [*23] of a transportation authority supported in whole or in part with public funds.
(9) A building, real property, and parking area under the control of a vendor or an establishment where intoxicating liquor is sold for consumption on the premises.
(10) A public gathering or special event conducted on property open to the public that requires the issuance of a permit from a federal, state, or local government and sidewalk or street immediately adjacent to the public gathering or special event but is not more than 1,000 feet from the event or gathering, provided this prohibition shall not apply to a licensee who must walk through a public gathering in order to access their residence, place of business, or vehicle.
(11) A playground or public or private youth center, as defined in Section 626.95, and a street or sidewalk immediately adjacent to the playground or youth center.
(12) A park, athletic area, or athletic facility that is open to the public and a street or sidewalk immediately adjacent to those areas, provided this prohibition shall not apply to a licensee who must walk through such a place in order to access their residence, place of business, or vehicle.
(13) Real property under the control of the [*24] Department of Parks and Recreation or Department of Fish and Wildlife, except those areas designated for hunting pursuant to Section 5003.1 of the Public Resources Code, Section 4501 of Title 14 of the California Code of Regulations, or any other designated public hunting area, public shooting ground, or building where firearm possession is permitted by applicable law.
(14) Any area under the control of a public or private community college, college, or university, including, but not limited to, buildings, classrooms, laboratories, medical clinics, hospitals, artistic venues, athletic fields or venues, entertainment venues, officially recognized university-related organization properties, whether owned or leased, and any real property, including parking areas, sidewalks, and common areas.
(15) A building, real property, or parking area that is or would be used for gambling or gaming of any kind whatsoever, including, but not limited to, casinos, gambling establishments, gaming clubs, bingo operations, facilities licensed by the California Horse Racing Board, or a facility wherein banked or percentage games, any form of gambling device, or lotteries, other than the California State Lottery, are or will be played.
(16) A stadium, arena, or the real property or parking area under the control [*25] of a stadium, arena, or a collegiate or professional sporting or eSporting event.
(17) A building, real property, or parking area under the control of a public library.
(18) A building, real property, or parking area under the control of an airport or passenger vessel terminal, as those terms are defined in subdivision (a) of Section 171.5.
(19) A building, real property, or parking area under the control of an amusement park.
(20) A building, real property, or parking area under the control of a zoo or museum.
(21) A street, driveway, parking area, property, building, or facility, owned, leased, controlled, or used by a nuclear energy, storage, weapons, or development site or facility regulated by the federal Nuclear Regulatory Commission.
(22) A church, synagogue, mosque, or other place of worship, including in any parking area immediately adjacent thereto, unless the operator of the place of worship clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property. Signs shall be of a uniform design as prescribed by the Department of Justice and shall be at least four inches by six inches in size.
(23) A financial institution [*26] or parking area under the control of a financial institution.
(24) A police, sheriff, or highway patrol station or parking area under control of a law enforcement agency.
(25) A polling place, voting center, precinct, or other area or location where votes are being cast or cast ballots are being returned or counted, or the streets or sidewalks immediately adjacent to any of these places.
(26) Any other privately owned commercial establishment that is open to the public, unless the operator of the establishment clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property. Signs shall be of a uniform design as prescribed by the Department of Justice and shall be at least four inches by six inches in size.
(27) Any other place or area prohibited by other provisions of state law.
(28) Any other place or area prohibited by federal law.
(29) Any other place or area prohibited by local law.”
[3] The Ninth Circuit also addressed similar provisions of a Hawaii law that prohibit the carry of firearms at sensitive places and a similar action brought by Hawaii plaintiffs against the Attorney General of the State of Hawaii alleging the Hawaii provisions violated their Second Amendment rights. Although the Court “address[ed] together the issues from the Hawaii case and the California cases, differentiating where appropriate,” this Alert does not discuss the Hawaii law or the Court’s discussion of aspects specific to the Hawaii law or case.
[4] May v. Bonta, Nos. SACV 23-01696-CJC (ADSx) & SACV 23-01798-CJC (ADSx), 2023 U.S. Dist. LEXIS 231208, 2023 WL 8946212 (S.D. Cal. Dec. 20, 2023).
[5] See McDonald, 561 U.S. at 778 (plurality opinion) (“[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” (emphasis added)).
[6] See Penal Code section 26230(a)(12),(13).
[7] In 1853, New Mexico prohibited firearms at a “Ball or Fandango”5 and at any “room adjoining said ball where Liquors are sold.” In 1870, San Antonio, Texas, banned firearms at any “bar-room” or “drinking saloon.” In 1879, New Orleans banned firearms at any “public hall” or “tavern.” In 1890, Oklahoma banned firearms at “any place where intoxicating liquors are sold.” The Court stated that no evidence in the record suggested that anyone disputed the constitutionality of those laws.
[8] See Section 26230(a)(15)-(17), (19), (20).
[9] The Court added that historical laws banning firearms frequently classified those categories of places together.
[10] See, e.g., Section 26230(a)(20) (prohibiting carry at any “building, real property, or parking area under the control of a zoo or museum”); Section 26230(a)(24) (prohibiting carry at any “parking area under control of a law enforcement agency”).
[11] See Penal Code Section 26230(a)(2)-(6), (14), (18), (21), (24).
[12] For example, a parking garage located in the basement of a courthouse or jail.
[13] For example, a student-only parking area at a school or a fenced, gated, parking lot at a jail or nuclear power plant.
[14] See also Antonyuk v. Hochul, 639 F. Supp. 3d 232, 324 (N.D.N.Y. 2022) (unchallenged on appeal), aff’d in part, vacated in part, and remanded sub nom. Antonyuk v. Chiumento, 89 F.4th 271, 316-17 (concluding that the right extends to private property open to the public).