Second Amendment Update  
By Robert Phillips  
Deputy District Attorney (ret.) 

Cal. Penal Code §26230 (SB 2):  

Effective Jan. 1, 2024, the California Legislature added Penal Code §26230 (passed as SB 2), which sought to prohibit the possession of firearms in a host of locations, even when the possessor has a license to carry a concealed weapon. This led to a number of lawsuits in federal court. Some of them have been combined into one that includes a challenge to both California and Hawaii firearms statutes, Wolford v. Lopez 116 F.4th 959. California’s input into this combined lawsuit comes from the federal district court decision of May v. Bonta (C.D. Cal., Dec. 20, 2023, 709 F. Supp. 3rd 940.)  

As is the case in all the Second Amendment lawsuits lately, the debate is whether the statute at issue complies with the U.S. Supreme Court decision New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. 1, [142 S.Ct. 2111; 213 L.Ed.2nd 387].  

As a reminder, Bruen set out the appropriate general methodology for deciding Second Amendment challenges to state laws: “When the Second Amendment’s plain text covers an individual’s conduct, the (U.S.) Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation.” In Bruen, the court provided specific guidance on how to determine what kinds of places qualify as “sensitive places” where firearms may be prohibited despite the Second Amendment’s guarantee of the “right to bear arms.”  

Note, however, that at this stage of the lawsuit, the plaintiffs are merely seeking a preliminary injunction, pending a final decision on the issues they raise. In other words, this is not a final decision on what may be “sensitive areas” and where the relevant statutes may be applied. So, we can expect more to come in the future.  

But while we wait for a decision on a permanent injunction, the decision below tells us which subdivisions of P.C. §26230 are enforceable and which are not.  

The court here notes that to warrant the extraordinary relief of a preliminary injunction, “Plaintiffs must show a likelihood of success on the merits, irreparable harm in the absence of preliminary relief, a favorable balance of the equities, and favorable public interest in an injunction.” Here’s how the Ninth Circuit ruled on the California Legislature’s attempt in P.C. §26230 to outlaw the carrying of firearms even if a person has a CCW permit: 

Those areas where the plaintiffs are likely to succeed, meaning that the cited subdivisions of this statute are unenforceable:  

(a)(7) A building, real property, and parking area under the control of a public or private hospital or hospital affiliate, mental health facility, nursing home, medical office, urgent care facility, or other place at which medical services are customarily provided. (Note: The court emphasized that “nothing prevents an operator of a medical facility — whether privately owned or state-run — from banning firearms under ordinary principles of property law.”) 

(a)(8) A bus, train, or other form of transportation paid for in whole or in part with public funds, and a building, real property, or parking area under the control of a transportation authority supported in whole or in part with public funds.  

(a)(10) A public gathering or special event conducted on property open to the public that requires the issuance of a permit from a federal, state, or local government and sidewalk or street immediately adjacent to the public gathering or special event but is not more than 1,000 feet from the event or gathering, provided this prohibition shall not apply to a licensee who must walk through a public gathering in order to access their residence, place of business, or vehicle. 

(a)(12) A park, athletic area, or athletic facility that is open to the public and a street or sidewalk immediately adjacent to those areas, provided this prohibition shall not apply to a licensee who must walk through such a place in order to access their residence, place of business, or vehicle. 

(a)(22) A church, synagogue, mosque, or other place of worship, including in any parking area immediately adjacent thereto, unless the operator of the place of worship clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that license holders are permitted to carry firearms on the property. Signs shall be of a uniform design as prescribed by the Department of Justice and shall be at least four inches by six inches in size. (Note: The court also cautioned that “nothing in the law and nothing in this opinion prevents the owner or operator of a place of worship from prohibiting the carry of firearms as a matter of ordinary property law, consistent with the requirements of state law.” In other words, the preliminary injunction only applies to places of worship where the owner or operator has not sought to prohibit firearms at the place of worship.) 

(a)(23) A financial institution or parking area under the control of a financial institution. (Note: The court again points out that “nothing in this opinion precludes a financial institution from banning firearms as a matter of property law, consistent with applicable state law. The preliminary injunction only applies to financial institutions where the bank operator has not sought to prohibit firearms.) 

(a)(26) Any other privately owned commercial establishment that is open to the public, unless the operator of the establishment clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that license holders are permitted to carry firearms on the property. Signs shall be of a uniform design as prescribed by the Department of Justice and shall be at least four inches by six inches in size. 

Those areas where the plaintiffs are unlikely to succeed, meaning that the cited subdivisions of this statute are enforceable as written:  

(a)(9) A building, real property, and parking area under the control of a vendor or an establishment where intoxicating liquor is sold for consumption on the premises. 

(a)(11) A playground or public or private youth center, as defined in Section 626.95, and a street or sidewalk immediately adjacent to the playground or youth center. 

(a)(19) Places of amusement (such as amusement parks. casinos, stadiums, zoos, museums, and libraries.) 

(a)(2), (6), (14), (18), (20), (21) and (24) The parking area attached to any “sensitive” area (including, but not limited to, a preschool or childcare facility, an adult or juvenile detention or correctional institution, prison, or jail, a public or private community college, college, or university, including, but not limited to, buildings, classrooms, laboratories, medical clinics, hospitals, artistic venues, athletic fields or venues, entertainment venues, officially recognized university-related organization properties, a building, real property, or parking area under the control of an airport or passenger vessel terminal, as those terms are defined in P.C. §171.5(a), property, building, or facility, owned, leased, controlled, or used by a nuclear energy, storage, weapons, or development site or facility regulated by the federal Nuclear Regulatory Commission, a zoo, museum, police, sheriff, or highway patrol station or parking area under control of a law enforcement agency.) 

Conclusion 

The seven subdivisions of P.C. §26230 (SB 2), as noted in the list above, are unenforceable pending a final ruling of the Ninth Circuit. We can expect that after this occurs, the U.S. Supreme Court may also render its own opinion. Until then, law enforcement and prosecutors are expected to be up to date on these rules and to tailor their arrests and prosecutions accordingly.