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

Case: Wolford v. Lopez 

On Sept. 6, the Ninth Circuit Court of Appeal issued a long and comprehensive decision related to California’s and Hawaii’s efforts to regulate where private citizens with concealed weapons permits may, and may not, carry firearms – concealed or not. The statute in issue in California is Penal Code § 26230, enacted in 2023 (SB 2) and effective January 1, 2024.  

At issue in the Hawaii case, Wolford v. Lopez (9th Cir. Sep. 6, 2024) F.4th, 2024 U.S.App. LEXIS 22698, is merely whether a preliminary injunction should issue pending a final decision on the merits of the plaintiffs’ lawsuit.  

Whether a preliminary injunction should issue depends upon the “likelihood of success on the merits” when the case is finally decided. So while remembering that this decision here in Wolford v. Lopez is not necessarily how it will be decided when finally considered on the merits, it certainly gives us a window into how this lawsuit will likely be decided absent something unusual happening between now and then – like a new U.S. Supreme Court decision redefining the test for evaluating the Second Amendment.  

In the meantime, law enforcement officers need to know which subdivisions of section 26230 are enforceable, and which are not.  

With that limitation in mind, it must first be noted that the current rule for when we can apply the protections of the Second Amendment right to bear arms was established by the U.S. Supreme Court’s decision New York State Rifle & Pistol Assn, Inc. v. Bruen (2022) 597 U.S. 1 [142 S.Ct. 2111; 213 L.Ed.2nd 387]. The rule of Bruen, in a nutshell, is that in determining the constitutionality of a statute under the Second Amendment where that statute seeks to regulate the carrying of firearms, a state is required to show that the proposed regulation in issue “is consistent with the nation’s historical tradition of firearm regulation.” (Id., at page 24.) If it is not, the statute violates the Second Amendment.  

Using this rule, the Ninth Circuit in Wolford v. Lopez evaluated California’s attempt under section 26230 to regulate where citizens may and may not carry firearms, making the following determinations as to the constitutionality under the Second Amendment of section 26230.  

Remembering again that the issue here is whether a preliminary injunction should issue in the plaintiffs’ favor pending a final resolution of the filed lawsuit, the Ninth Circuit made the following rulings. 

Those subdivisions where the court held that a preliminary injunction is not issued: 

Bars and Restaurants that Serve Liquor (per subparagraph (9) of P.C. § 26230(a)): Recognizing that alcohol and intoxicants are a dangerous combination, and while referring to such establishments as “sensitive places,” as are some of the following. 

Playgrounds and Youth Centers (per subparagraph (11) of P.C. § 26230(a)).  

Parks and Similar Areas (per subparagraph (12) of P.C. § 26230(a)): This includes at least three separate park-like areas: “athletic areas,” “athletic facilities” and most real property “under the control of the Department of Parks and Recreation or Department of Fish and Wildlife.” 

Places of Amusement (per subparagraphs (15), (16), (17), (19) & (20) of P.C. § 26230(a)): This includes casinos, stadiums, amusement parks, zoos, museums and libraries.  

Parking Areas Connected to Sensitive Places (per subparagraphs (2) through (6), (14), (18), (20), (21), & (24) of P.C. § 26230(a)): This applies to parking areas at preschools, childcare facilities, government buildings, courthouses, jails, prisons, juvenile detention centers, schools, airports, nuclear power plants, and police stations, student-only parking areas at a school or a fenced, gated, parking lot at a jail or nuclear power plant.  

Those subdivisions where the court held that a preliminary injunction is issued, thus preventing the enforcement of the subdivision:  

Hospitals and Other Medical Facilities (per Subparagraph (7) of Cal. Penal Code § 26230(a)).  

Public Transit (per Subparagraph (8) of Cal. Penal Code § 26230(a)): This subdivision sought to prohibit the carrying of firearms in “[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.”  

Public Gatherings that Require a Permit (per Subparagraph (10) of Cal. Penal Code § 26230(a)): This subdivision sought to prohibit the carrying of firearms at: “(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.”  

Places of Worship (per Subparagraph (22) of Cal. Penal Code § 26230(a)). 

Financial Institutions (per Subdivision (23) of Cal. Penal Code § 26230(a): e.g., banks and credit unions. 

The Private-Property Default Rule (per Subparagraph (26) of Cal. Penal Code § 26230(a)): This section, as written, allowed a property owner to consent to the carrying of a firearm on his or her property otherwise open to the public only by “clearly and conspicuously post[ing] a sign at the entrance of the building or on the premises indicating that license holders are permitted to carry firearms on the property.” To carry a firearm, even with a permit, onto private property open to the public was, prior to the issuance of this preliminary injunction, illegal without such a sign expressly giving consent to carry a firearm onto the property, posted on the premises.  

Conclusion: Again, this decision merely calls for the issuance of a preliminary injunction, prohibiting California law enforcement officers from enforcing certain statutory prohibitions, as noted above. So, pending a final decision, they are unenforceable while the rest are enforceable. When the final decision in Wolford v. Lopez will be filed is anybody’s guess. But when it does, we can expect it to be consistent with the preliminary decision as described here.