Litigation Highlight: Ninth Circuit Weighs in on Sensitive Places
On September 6, a Ninth Circuit panel issued a major Second Amendment decision in Wolford v. Lopez regarding state laws in California and Hawaii that prohibit gun carrying in sensitive locations. Wolford is the second federal appellate ruling to address the question since Bruen and the wave of sensitive-places laws that were enacted following that decision (the Second Circuit’s decision in Antonyuk v. Chiumento in January, which we covered here, was the first). Wolford generally approaches the analysis in a similar manner to Antonyuk, but the ruling also highlights areas where future Supreme Court guidance may be needed.
In Wolford, the Ninth Circuit addressed Second Amendment challenges to California and Hawaii laws banning guns from being carried in certain public areas. As in Antonyuk, the panel was presented with district court decisions that had invalidated large swathes of this regulatory framework on Second Amendment grounds. Wolford affirmed in part and reversed in part. The panel first summarized Bruen and Rahimi and outlined the following approach to evaluating sensitive-place laws:
For places that have existed since the Founding, it suffices for [the state] 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, [the state] must point to regulations that are analogous to the regulations cited by the Court, taking into account that it is illogical to expect a government to regulate a place before it existed in its modern form. . . .
For both types of places, 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. A key factor is whether the constitutionality of the historical regulations was disputed.
Wolford first addressed parks and related recreation areas. Noting that modern parks as such did not exist at the Founding, the panel found that, “[a]s soon as green spaces began to take the shape of a modern park, in the middle of the 19th century, municipalities and other governments imposed bans on carrying firearms into the parks.” The panel found this later history determinative, noting that the “ordinances were fully consistent with preratification practice, they emerged shortly following ratification, and Plaintiffs have not offered any evidence that anyone anywhere viewed the laws as unconstitutional or even questionably constitutional.” Thus, the panel upheld the state bans on carrying in parks and related areas such as beaches, athletic facilities, and wilderness areas.
As to playgrounds and youth centers, the panel had little trouble concluding that bans in these locations were appropriate because they are found primarily at, or in close proximity to, schools and parks—both of which qualify as sensitive places. Moving to bars and establishments serving alcohol, the panel relied on three separate categories of historical laws to conclude that “places that serve alcohol fall within the national historical tradition of prohibiting firearms at sensitive places”: (1) colonial laws that prevented the militia from meeting in locations where alcohol was readily available or that banned the sale of alcohol to militia members; (2) law restricting the carrying of guns at balls and similar events; and (3) late-1800s laws restricting guns at or near locations selling alcohol.
Next, the panel evaluated the state bans on carrying in “casinos, stadiums, amusement parks, zoos, museums, and libraries.” Finding that these specific locations did not exist in their modern form in the Founding era, the panel instead determined that they were the modern incarnations of places such as “balls, fandangos, and other social gatherings.” The court catalogued historical regulations covering these locations and early state court decisions upholding such laws—including decisions that harshly denounced the practice of carrying firearms into places where the public gathers for amusement or relaxation. The panel further noted that zoos and libraries are both intimately associated with established sensitive places: parks and schools, respectively. Therefore, the panel upheld these laws and reversed contrary district court decisions.
Wolford next examined whether the states could ban firearms in parking lots connected to sensitive locations. The panel found that gun bans in some parking areas are permissible: for example, “a parking garage located in the basement of a courthouse or jail [that is] likely so intertwined with the main structure as to be considered part of the sensitive area itself,” or a parking lot that “fall[s] within a reasonable buffer zone” geographically. Thus, the panel reversed the California district court that had granted a facial challenge and invalidated the state’s parking lot ban for all sensitive locations. In the Hawaii case, by contrast, the district court had enjoined the ban only as applied to parking lots that are shared between public and private entities—and the panel affirmed that ruling.
The panel then moved on to consider the state-law provisions that institute a default ban on carrying guns on private property unless the owner affirmatively provides consent. The Hawaii law, the court noted, is more permissive in how a property owner may express the desire to permit guns. A property owner in Hawaii can do so orally, in writing, or with signage, while California allows consent only by posting a conspicuous sign at the entrance to the building. The panel found the relevant conduct within the scope of the Second Amendment and identified two major strands of relevant historical legislation: (1) laws that banned carrying guns on “subsets of private land,” such as plantations, and (2) laws that generally barred carrying on any private land without the owner’s consent. Finding “an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property,” the panel upheld Hawaii’s law but found that California’s signage requirement deviated too far from historical analogues and was unconstitutional due to the failure to allow on-the-spot verbal permission to carry.
As to places of worship, the panel noted that district courts were divided on the issue and ultimately determined 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.” California further banned gun carrying at all “public gatherings,” which the panel found to be inconsistent due to the lack of Founding-era historical precedent and the fact that this provision would stretch the concept of sensitive places too far especially in crowded urban areas.
Both states banned carrying at banks and financial institutions, but the panel determined that these institutions have existed since the Founding without regulation. And, the panel said, “[a] dynamic, congested gathering of persons with commercial, political, and social elements is not particularly analogous to a trip to a bank to deposit a check.” Thus, the historical analogues that supported banning guns in places of amusement, for example, were inapposite and the ban was unconstitutional. The panel further affirmed the California district court’s ruling that plaintiffs were likely to succeed on their challenge to that state’s ban on gun carrying in hospitals and medical facilities. Those places existed at the Founding, the court said, but the state identified no evidence of firearm restrictions. And it was a stretch, the panel determined, to analogize to public assemblies for educational purposes or to argue that anywhere that vulnerable populations exist is properly deemed sensitive.
Finally the panel determined that, when assessing a gun ban on public transit, historical evidence of rules and regulations by private entities may inform the analysis. But, even accounting for historical regulation by private railroad companies, the court found that the relevant tradition encompassed only “prohibiting the carry of loaded firearms or the carry of firearms not properly stored.” Because California enacted a blanket ban without regard to whether guns are loaded or stored securely, the court affirmed the district court’s assessment that plaintiffs were likely to succeed on this claim.
The panel closed by noting that, under its analysis, “the lists of places where a State likely may ban, or may not ban, the carry of firearms appear arbitrary” and “the lack of an apparent logical connection among the sensitive places is hard to explain in ordinary terms.” This is a recurrent theme throughout much of the post-Bruen sensitive places litigation that speaks to the institution of a historical-analogical test without explanation of the relevant thematic principles that allow governments to enact locational bans. While Wolford discussed the idea that the presence of vulnerable populations, such as children, might be relevant, it’s not entirely clear what work this or other theories are doing. And the historical framing makes the search for underlying reasons all the more obscure, no less because it is often difficult or impossible to identify a single legislative motivation behind a law enacted hundreds of years ago.
The panel cites Antonyuk throughout for its persuasive value, observing in a footnote that it has “conclude[d] that the reasoning of Antonyuk is consistent with the Supreme Court’s decision in Rahimi and therefore retains its persuasive worth.” But Wolford also deviates from Antonyuk in some key respects—for example, the Ninth Circuit finds a historical tradition of banning carry on private property without the owner’s consent (the Second Circuit struck down this piece of New York’s law). And, as the court notes, the Antonyuk panel was presented with different historical evidence as to some challenges and found in some instances that the plaintiffs in that case lacked standing. That said, Wolford does tee up a number of major questions that will likely require Supreme Court guidance down the road: for example, the relevance of Reconstruction-era history, how private-entity regulation in areas like transportation factors into the analysis, and the import of signage and other notice requirements with regard to private-property default bans.