Ninth Circuit won’t rehear arguments on its decision to uphold gun-free zones in Hawaii and California

Eight Republican-appointed judges dissented, saying that the appellate court did not apply the proper standard for evaluating Second Amendment challenges.

by Michael Gennaro, Court House News, January 15, 2025

(CN) — The Ninth Circuit Court of Appeal issued a pair of decisions Wednesday denying a petition for en banc rehearing of a case that restricts where people can carry firearms in Hawaii and California.

The case centers around laws in Hawaii and California that prohibit the carrying of firearms in most public places. Plaintiffs in both cases sued to stop the application of the laws and won temporary injunctions before the cases were appealed to the Ninth Circuit and consolidated.

In September 2024, a Ninth Circuit panel ruled that California and Hawaii could ban firearms in most places, including beaches, parks, businesses that served alcohol and other sensitive places that have a historical precedent of banning firearms. That was true even when accounting for New York State Rifle & Pistol Association, Inc. v. Bruen, a 2022 Supreme Court decision that found a range of gun regulations across the country did not have historical backing and were unconstitutional.

Under that new historical-tradition standard, that three-judge panel — consisting of Senior U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, and U.S. Circuit Judge Jennifer Sung, a Joe Biden appointee, as well as Senior U.S. Circuit Judge Susan Graber, a Bill Clinton appointee — concluded that some but not all of the places specified by Hawaii and California fell within a tradition of prohibiting firearms at sensitive places.

The panel did block the bans on carrying guns in certain types of places after finding they weren't similarly backed by historical tradition — including schools, hospitals, banks, public transit and places of worship, as well as private property unless the owner of the property gave clear permission that guns are allowed.

The plaintiffs petitioned for a rehearing of the case en banc, but the Ninth Circuit denied the petition Wednesday, with several judges slamming the original panel’s decision as a possible violation of the Second Amendment to carry a firearm.

“The panel in these cases failed to apply the proper standards for evaluating Second Amendment challenges, as set forth in New York State Rifle & Pistol Ass’n v. Bruen, and United States v. Rahimi, and that, in doing so, the panel largely vitiated the ‘the right to bear commonly used arms in public’ that the Supreme Court recognized in Bruen. We therefore should have reheard these important cases en banc,” wrote U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, in his dissent joined by U.S. Circuit Judge Daniel Bress, also a Trump appointee.

Trump appointee U.S. Circuit Judge Lawrence VanDyke also lambasted the decision to not rehear the case.

“The Supreme Court made clear that the Second Amendment includes the right to bear firearms in public. With its decision in these cases our court allows governments in our circuit to practically eliminate most of that right. In response to Bruen, both Hawaii and California declared a broad and unprecedented number of locations to be prohibited ‘sensitive places,’ and on top of that imposed novel criminal sanctions for concealed carry onto private property absent express permission received in advance,” VanDyke wrote.

VanDyke continued: “Apparently, notwithstanding Bruen’s instruction that the Second Amendment protects a right to carry a firearm in public, what it really protects is the right to carry only while taking your dog out for a walk on a city sidewalk. If only New York City had been as creative as California and Hawaii, it too could have avoided Bruen and succeeded in banning firearms throughout most of Manhattan.”

VanDyke's dissent was joined by U.S. Circuit Judges Ryan Nelson, Kenneth Lee and Patrick Bumatay, all Trump-appointed judges. U.S. Circuit Judges Consuelo Callahan and Sandra Ikuta, both appointees of George W. Bush, joined the dissent.

The dissenting judges said that the decision resulted in a split with the Second Circuit Court of Appeals, which ruled that the application of New York’s similar private-property law was unconstitutional, and that hearing the Hawaii and California cases en banc would have allowed the court to apply the proper standard and rectify the split.

“Hawaii’s and California’s creative attempts to declare almost all cities and public locations as either prohibited ‘sensitive places’ or presumptive gun-free zones cannot be squared with Bruen. There, the Supreme Court concluded that designating entire cities ‘sensitive places’ and prohibiting the carrying of firearms in those locations would effectively ‘exempt cities from the Second Amendment’ and ‘eviscerate the general right to publicly carry arms for self-defense.’ Yet California’s and Hawaii’s bans practically accomplish close to the same thing rejected in Bruen,” VanDyke wrote.

The plaintiff attorneys in the Hawaii and California matters did not reply to requests for comment before deadline. Lawyers for California Attorney General Rob Bonta’s office did not reply to requests for comment, nor did counsel for Hawaii Attorney General Anne Lopez’s office.