What a week it has been!
By now you are probably aware the injunction against SB2’s “sensitive locations” is back in place. Those of us who have concealed carry permits can now go about freely, exercising our Constitutional rights to bear arms just as we have for the last few decades in California.
I want to use this blog format to explain what has happened… and for that matter, what is continuing to happen, and what we should expect in the future.
First off, where does this whole “sensitive locations” thing come from?
In NYSRPA v Bruen, both Justice Thomas, as well as Justice Kavanaugh in his concurring opinion, talked about “sensitive locations” where the carriage of weapons could be regulated. They both stated that in 1791 during the ratification of the Constitution there were certain specific, narrowly-tailored regulations regarding very, very specific places where weapons could be banned. Specifically, they referenced courthouses and polling places. These were areas where the ratifiers of the Constitution recognized there was a higher probability of people exhibiting “inflamed passions”. In a way, this makes sense. These are places where it is entirely predictable that people might do stupid things, and ensuring they are unarmed in these places seemed to make sense. (We can debate the merits of that belief, but they made that decision nonetheless).
The State of California, as well as the State of New Jersey, New York, Hawaii, and a handful of others, were mortified by the Bruen decision. They were appalled they were now mandated to follow the Constitution and issue permits to people. They immediately looked to see how they could push back legislatively.
One theory was to claim the entirety of the State was a “sensitive location”.
Sadly for them, the Supreme Court had already cut them off at the pass when it came to that theory. In Bruen they proactively admonished the States that they could not pull that kind of chicanery. Sensitive locations had to be narrowly tailored and follow the Bruen standard.
The California legislature ignored that commandment.
They created a bill called SB2 that has a host of Constitutionally problematic things…but the most glaring, and immediately abusive to the majority of CCW holders, was a specifically enumerated list of places that were now deemed “sensitive”, places you could not bear arms even if you had a CCW.
The list taken in its totality would have been the functional equivalent of a statewide ban.
The California Rifle and Pistol Association sued the state in a case called May et al. v Bonta.
The first priority was getting a preliminary injunction in place that would keep the “sensitive locations” doctrine from going into effect on January 1, 2024.
The case is in front of US District Judge Carney in Orange County, and in late December he issued a preliminary injunction preventing the State from enforcing SB2’s “sensitive locations” while the case is being litigated. (This, by the way, could take years.)
The State appealed to the 9th Circuit and asked for an emergency stay of the injunction so the law could, in fact, go into effect.
A special motions panel of three judges issued a stay on the injunction two days before the new year. They offered no reasoning or guidance. These judges would not be ruling on the appeal of the preliminary injunction… that will be handled by another three-judge panel. They were just focused on the emergency stay.
With the stroke of a pen, thousands of individuals lost their Constitutional rights.
And we found ourselves in a Constitutional crisis.
The Supreme Court had spoken, and now both the State and the Judiciary were purposely ignoring the Supremes.
Sheriffs and DAs came out and publicly stated they would not enforce or prosecute people for violating the law.
Suddenly, on Saturday, the 6th, the 9th Circuit reversed itself.
The stay was overturned and Justice Carney’s injunction was back in full effect. Again… this order was issued without any reasoning attached to it. One is left to wonder what type of backchannel discussions were held that led to this. Regardless… an opinion that comports to our Constitutional principles (however it was come by) is, by definition, a victory for the People.
So… for the foreseeable future the ability to carry has not been affected. The appeal on the injunction will be heard in April with a decision sometime after that. The standard of review by that appellate panel is an “abuse of discretion”… meaning that to overturn Judge Carney they have to show no reasonable judge would come to the conclusion he did. Empirically, they have no grounds to make that decision.
We are not done yet though.
SB2 still has a slew of problems associated with it, and as of this writing, all of SB2 (save the “sensitive locations”) is now the law of the land.
For instance… anyone who has been given a restraining order (for any reason) is prohibited from getting a CCW, either initial or renewal for five years. In California most contested divorces come with restraining orders, and many of the restraining orders are quashed within the first few days. That said… there is no language in SB2 that recognizes the difference between a permanent restraining order and a temporary restraining order. As such, there is a boatload of current CCW holders who will not be able to renew as a result of this law.
This means more lawsuits, more challenges, and more tax money wasted defending this piece of garbage legislation.
Regardless, a victory is a victory… and we raise our glasses and tip our hats to the tireless attorneys at Michel and Associates and the CRPA!