The CRPA on September 19, 2024, petitioned for en banc review of the Ninth Circuit panel’s decision regarding preliminary injunctive relief in May v Bonta (written by Judge Graber aka Grabber) oppressively curtailing the right to bear arms in California. En banc review is typically not fruitful for gun rights in California and the expectation was that CRPA would simply pursue final judgment as the quickest route to SCOTUS, but CRPA probably had no choice after counsel for plaintiff in the consolidated Hawaii case quickly petitioned for en banc rehearing.
Here is a quick summary of points raised:
- “Vampire rule” is not a new default rule because it applies only to CCW holders and not to others exempt from CCW laws; historical laws requiring consent to enter armed applied to enclosed private lands, not businesses open to the public; violating Bruen’s standard of looking at both “how” and “why” in comparings regs (comparable burden, comparably justified) panel improperly relied on a colonial New Jersey reg aimed at preventing poaching of game on private lands, and a “Black Code” from Louisiana enacted in 1865 to disarm blacks. [The panel upheld Hawaii’s vampire rule and allowed the injunction to stay in place against California’s based on a mere technicality, which as i explain here could be easily and quickly corrected by our legislature, resulting in the virtual elimination of the right to bear arms in California.]
- Taverns existed widely at the Founding and not a single Founding era law prohibited carry by sober citizens at such places. Panel relied instead on Founding era laws prohibiting sale of liquor to militiamen while on duty, and a few 19th-century outlier laws applying to select establishments primarily in the business of serving alcohol, which were NOT widely applicable to all places selling alcohol.
- Panel ignored plaintiff’s briefing that laws regulating carry in specific urban parks were generally not concerned with regulating carry of firearms for self-defense, and were intended to prevent hunting and other discharges not involving self-defense; regardless of these regulations concerning specific urban parks, broad ban of carry in all parks throughout the state clearly affects areas which cannot be considered “sensitive places” and includes wilderness areas.
- Panel ignored Bruen in deciding that if a place is a “sensitive place” where guns can be banned, the guns can be banned for everyone, because while in the 19th century pretty much everyone could carry openly pretty much anywhere they wanted, without licensing or vetting by the government, the reality is that modern CCW holders are highly vetted and highly trained, and thus prohibiting carry by CCW holders is not “comparably justified”.
- Panel inappropriately based much of its analysis on an 1824 prohibition on student carry, which was not a location restriction but a restriction on carry by certain persons; schools were not even at issue, but the panel extended to other areas, for example libraries, simply because some were associated with schools; that same faulty analysis could have been applied to all of the areas which the panel did not hold to be sensitive, leading to the opposite conclusion.
