(CN) — A Ninth Circuit panel heard oral arguments Thursday in a challenge of an injunction on most provisions in a state law banning the concealed carrying of firearms in "sensitive places."
Signed into law by Governor Gavin Newsom this past September, Senate Bill 2 removed an earlier requirement that people applying for a permit to carry concealed firearms show a compelling need to do so, but set limits on who can hold a permit, setting a minimum age of 21 and requiring firearms training. It also designated 26 different "sensitive places" where concealed firearms are not allowed, including churches, schools, child care facilities, playgrounds, parks, stadiums and banks, as well as their respective parking lots.
The law was written to bring state law in line with the 2022 Supreme Court decision New York State Rifle & Pistol Association, Inc. v. Bruen, which struck down New York's restrictions on concealed carry. The ruling, penned by Justice Clarence Thomas, said that gun laws must be in line with the "historical tradition of firearm regulation," which has come to be the standard by which gun laws in the U.S. are now judged.
Gun rights groups and concealed-carry permit holders filed two lawsuits against California, challenging most of the no gun zones set up by SB 2. In December, U.S. District Judge Cormac Carney preliminarily blocked the challenged provisions of the new law, writing, "SB 2’s coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court... [it] 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."
On Thursday, Deputy Attorney General Robert Meyerhoff told the three-judge panel, "This injunction is not in line with Bruen. It is a sweeping injunction that goes far beyond any injunction issued by any other court."
Meyerhoff cited numerous historical analogs and examples of 18th and 19th century courts banning firearms from certain places, including parks and schools, and pointed out that the Supreme Court has already upheld bans in polling places.
"The plaintiffs take the position that schools and government buildings are not sensitive places," Meyerhoff said.
That's incompatible with clear Supreme Court precedent."
He argued that Judge Carney had set the bar for what constitutes a historical analog too high, and that in certain cases courts can take a "more nuanced approach." For example, he argued, casinos did not exist in the 1800s, but banning guns from casinos was the "type of restriction the founders would have tolerated."
In December, the Second Circuit Court of Appeals upheld most of the provisions of New York's newest concealed carry law.
"The Second Circuit just issued an exhaustive explanation of what is and isn't a sensitive place," U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, noted to the plaintiffs' attorney Alexander Frank. "Why should we part company with the Second Circuit? Why create a circuit split?"
Frank said the Second Circuit had made a number of "serious errors," and argued California's lawyers "had failed to show that any of these locations are genuine sensitive places."
In their answering brief, the plaintiffs in the case argued that "while there may be a few truly '“sensitive places' where that right to carry may be restricted, a broad notion of 'sensitivity' is unconstitutional because gun-free zones were generally unknown to the Founders, and declaring lots of 'sensitive places' would eviscerate the general right to publicly carry arms for self-defense.”
Pete Patterson, the plaintiffs' lawyer in the second lawsuit, argued that the number of people, or even who the people were, wasn't enough to qualify a place as sensitive. "If you have vulnerable people in a location and say that nobody can be armed, that only makes them more vulnerable," he said.
Though the plaintiffs in the case did not challenge SB 2's provision that bans guns in schools, Frank suggested it might be unconstitutional as well.
"Heller said that these places were presumptively sensitive, not conclusively," said Frank, referring to the 2008 U.S. Supreme Court case District of Columbia v. Heller.
A skeptical Graber asked: "So is it your position that schools — that that is not a sensitive place?" Frank replied, "We’re not challenging the school’s provision here."
Graber pressed: "Because?"
"Because there's plenty of SB2 that is, I think, more appropriate to challenge than schools," said Frank.
All three of the judges on panel were appointed by Democratic presidents. U.S. Circuit Judge Mary Schroeder was appointed by Jimmy Carter, and U.S. Circuit Judge Jennifer Sung was appointed by Joseph Biden.
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