Guns N' Encloses: While Figuring Out Gun "Sensitive Places," CA9 Backhandedly Upholds The Right To Exclude

The gunfight at the OK Corral is about all we know about bearing arms in public places.

by Robert Thomas, InverseCondemnation, Sept 16, 2024

There's a lot going on in the U.S. Court of Appeals for the Ninth Circuit's opinion in Wolford v. Lopez, No. 23-4356 (Sep. 6, 2024), and none of it is about takings, at least directly. And the case involves a Second Amendment challenge to Hawaii and California's restrictions on where a bearer of arms can bear those arms, a topic that is beyond our full understanding as mere mortals.

So why are we covering it? Well, glad you asked. This one is peripherally about property rights and because of the posture of the case avoids what we think is the biggest issue from a property rights viewpoint. The bulk of the case analyzes the state's ability to restrict carrying weapons in public places like beaches, parks, and other public venues. But one part of the case delves into whether the state may regulate private property owners' right to say "Keep Out!" or "Gun Owners Welcome!" to those who are strapped up. So count us interested!

The challenge here came only from the arms-bearers (and not property owners), and thus the only issues the court was presented with involved whether the state regulating whether arms-bearers may do so on private property violates the Second Amendment, not the Fifth Amendment rights of the owners. Property owners were not parties to the case, apparently. But depending on how the issue of carrying on private property breaks, these restrictions may also unduly limit the property owner's ability to control who may access their property and under what circumstances. Private property rights are "adjacent" to the actual issues, but that's enough for us.

Here's that part of the story. A Hawaii statute law presumptively bans third parties carrying firearms on private property unless the owner allows it, either by posting a sign or by expressly saying okay. California takes a slightly different approach by also barring non-owners from carrying guns onto private property, but allowing it only if the owner has posted a conspicuous sign consenting to third parties bringing weapons on the premises. 

The plaintiffs -- holders of concealed carry licenses -- sued and sought a preliminary injunction:

In both the Hawaii case and the California cases, the district courts held that Plaintiffs are likely to succeed on their challenges to the respective bans on the carry of firearms on private property held open to the public unless the owner or operator consents. Haw. Rev. Stat § 134-9.5(a); Cal. Penal Code § 26230(a)(26). Although the state statutes are similar, they differ in one key respect. Hawaii’s law allows a property owner to consent orally, in writing, or by posting appropriate signage on site. Haw. Rev. Stat. § 134-9.5(b). California’s law, by contrast, 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.” Cal. Penal Code § 26230(a)(26).

Slip op. at 61 (footnote omitted).

The bulk of the opinion analyzes the rights of the plaintiffs to keep and bear arms in public places such as those, so unless you are a Second Amendment maven, you can safely skip ahead to portion of the opinion where the court considers the Second Amendment validity of regulating the carrying of weapons on private property open to the public:

We conclude, then, that the Nation has an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property.

...

Hawaii’s modern law falls well within the historical tradition. The law prohibits the carrying of firearms onto private property unless the owner has posted signs, otherwise has given written consent, or has given oral consent. We therefore conclude that Plaintiffs in the Hawaii case are unlikely to succeed on the merits.

But we conclude that California’s law falls outside the historical tradition. As noted at the outset of this section, 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. We find no historical support for that stringent limitation. Although two of the laws mentioned above required a person to obtain consent in writing, all of the other laws allowed a person to obtain consent in any manner. None of the laws forbade a person from obtaining permission only by convincing the owner to post signs of a specific size. Nor do modern circumstances appear to justify California’s imposing a much more stringent consent requirement; ordinary signs existed in 1791, in 1868, and today.

Slip op. at 67-68.

We view the issue more from the owner's perspective, and not as one primarily as a Second Amendment question. But also much more simply: the choice of whether to allow carrying a piece on one's property that may otherwise be open to the public should be the owner's. The no shirt, no shoes vibe. Yes, we are definitely down with the notion that Second Amendment rights are not second-class constitutional rights. Nor are Fifth Amendment rights.

We view the Ninth Circuit's decision here as (generally) consistent with that vibe, especially the notion that the owner's consent cannot be limited to only a state-defined category (signs only as in California, and not also oral or written consent as in Hawaii -- as the court put it, "Sure, you may carry your musket on my property, but only this week and only one musket."). Slip op. at 68.

The big property rights issue may arise more readily in other Circuits, where state law and policy go in the other, more pro-gun direction than blue Hawaii and California. What if, for example, a pro-gun state statute mandated that property owners allow arms-bearing on their property, even if the owner would prefer otherwise? That would definitely raise our takings hackles.

PDF: Wolford v. Lopez, No. 23-4356 (9th Cir. Sep. 6, 2024)