District Judge: California Carry Restrictions Violate Constitution

On December 20, 2023, United States District Judge Cormac J. Carney issued an order granting the plaintiffs motions for Preliminary injunction in the case of Reno v Bonta.

The case involves the multitudinous restrictions placed on where people are allowed to bear arms in California. Judge Carney ruled the challenged provisions of the law deprive people, who have already been vetted by the state, of their right to bear arms, and are therefore prevented from taking effect. Following are excerpts from the order with commentary.

At the beginning, Judge Carney notes we live in dangerous times, and the right to self defense is a fundamental, inherent right. From the Introduction:

The right to self-defense and to defend one’s family is fundamental and inherent to our very humanity irrespective of any formal codification. In their wisdom, the Founders recognized the need for individual citizens to protect themselves and their loved ones from those that would do them harm—and they knew that such a right could not be vindicated without the right to bear arms. The Second Amendment to the United States Constitution guarantees law-abiding, responsible citizens the right to keep and bear arms for self-defense in case of confrontation.

On page 2, Judge Carney goes on to explain how the right to bear arms has been disrespected for decades. From courtlistener.com p.2:

For many years, the right to bear arms, and so necessarily the right to self-defense, was relegated to second-class status. But the United States Supreme Court made clear in its landmark decisions District of Columbia v. Heller, McDonald v. City of Chicago, and New York State Rifle & Pistol Association, Incorporated v. Bruen that relegation could no longer be permitted—individuals must be able to effectuate their right to self-defense by, if they so choose, responsibly bearing arms.

On page 4, Judge Carney explains the plaintiffs in this case are permit holders, and the restrictions placed on where they can carry are a violation of their Second Amendment rights.

Plaintiffs, who are concealed carry permit holders and related organizations, brought these two lawsuits against California to challenge the constitutionality of many of SB2’s “sensitive place” provisions. They now seek a preliminary injunction enjoining California from enforcing the challenged sensitive-place provisions, asserting that many of those restrictions violate their Second Amendment rights and deprive them of their ability to defend themselves and their loved ones in public. Plaintiffs are right. Their motions for a preliminary injunction are GRANTED.

There is a minor error on page 12. Judge Carney writes that historically, sensitive places include schools and government buildings. This is not correct. Here are Judge Carney's words:

These locations include schools, government buildings, “legislative assemblies, polling places, and courthouses.”

In the binding Second Amendment decision in Bruen, only three locations were found to be "sensitive places" with historical roots at the founding. From the Bruen decision:

 Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions.

It is a minor flaw in an otherwise well reasoned and argued order. On pages 40 and 41, Judge Carney shows how the Plaintiffs would suffer irreparable harm if their Constitutional rights are violated, and the government cannot suffer harm from an injunction which ends an unlawful practice. P. 40:

Because Plaintiffs have shown it is likely that the challenged SB2 provisions violate their Second Amendment rights, they have demonstrated that irreparable harm is likely without a preliminary in junction enjoining the government from enforcing those provisions.

P.41

 Moreover, the government “cannot suffer harm from an injunction that merely ends an unlawful practice” such as denying Californians’ Second Amendment rights.

The conclusion does a masterful job of summing up the need for the preliminary injunction on page 43:

The Second Amendment preserves a fundamental constitutional right for law-abiding citizens to keep and bear arms for self-defense. Increasingly in modern times, with “the ubiquity of guns and our country’s high level of gun violence,” ordinary law-abiding people feel a need to carry handguns in public to protect themselves and their families against violence. Bruen, 597 U.S. at 73 (Alito, J., concurring). This may be because they “live in high-crime neighborhoods,” or because they “must traverse dark and dangerous streets in order to reach their homes after work or other evening activities,” or because they “reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.” Id. CCW permitholders are among the most responsible, reliable law-abiding citizens. They have been through a vigorous vetting and training process following their application to carry a concealed handgun. The challenged SB2 provisions unconstitutionally deprive this group of their constitutional right to carry a handgun in public for self-defense. Therefore, those provisions must be preliminarily enjoined. 

Analysis. This preliminary injunction will be appealed to the Ninth Circuit by the government of California. It is unclear if any particular three judge panel of the Ninth Circuit will agree or disagree with Judge Carney. If the three judge panel agrees, the historical record shows the Ninth Circuit will then hear the case en banc. Even so, the blatant disregard of the Supreme Court Bruen decision may be sufficient for an en banc Ninth Circuit to uphold Judge Carney. It could happen. If it does, it seems unlikely the State of California would appeal the decision to the Supreme Court. If, as expected, an en banc panel strikes down Judge Carney's order, expect the Plaintiffs to appeal to the Supreme Court.

This is part of the delay, delay, delay game several circuits are playing, hoping somehow, the structure of the Supreme Court will be changed before they are forced to uphold the Second Amendment. Historically, it is similar to the games played by the Southern states to delay and prevent integration of public schools in the 1950s.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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