Editorial: Ninth Circuit Court of Appeal Issues Order on Where Citizens with CCWs May Carry Firearms

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 ....

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