May v. Bonta

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON WOLFORD; ALISON No. 23-16164

WOLFORD; ATOM KASPRZYCKI;

HAWAII FIREARMS COALITION, D.C. No.

1:23-cv-00265-

Plaintiffs-Appellees, LEK-WRP

v.

OPINION

ANNE E. LOPEZ, in her official

capacity as the Attorney General of the

State of Hawaii,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

MARCO ANTONIO No. 23-4354

CARRALERO; GARRISON

HAM; MICHAEL D.C. No.

SCHWARTZ; ORANGE COUNTY 8:23-cv-01798-

GUN OWNERS PAC; SAN DIEGO CJC-ADS

COUNTY GUN OWNERS

PAC; CALIFORNIA GUN RIGHTS

FOUNDATION; FIREARMS

2 WOLFORD V. LOPEZ

POLICY COALITION, INC.,

Plaintiffs - Appellees,

v.

ROB BONTA, in his official capacity

as Attorney General of California,

Defendant – Appellant.

RENO MAY, an No. 23-4356

individual; ANTHONY MIRANDA,

an individual; ERIC HANS, an D.C. No.

individual; GARY BRENNAN, an 8:23-cv-01696-

individual; OSCAR A. BARRETTO, CJC-ADS

Jr., an individual; ISABELLE R.

BARRETTO, an individual; BARRY

BAHRAMI, an individual; PETE

STEPHENSON, an

individual; ANDREW HARMS, an

individual; JOSE FLORES, an

individual; Dr. SHELDON HOUGH,

DDS, an individual; SECOND

AMENDMENT

FOUNDATION; GUN OWNERS

OF AMERICA, INC.; GUN

OWNERS FOUNDATION; GUN

OWNERS OF CALIFORNIA,

INC.; LIBERAL GUN OWNERS

ASSOCIATION; CALIFORNIA

RIFLE & PISTOL ASSOCIATION,

WOLFORD V. LOPEZ 3

Plaintiffs - Appellees,

v.

ROBERT BONTA, in his official

capacity as Attorney General of the

State of California,

Defendant - Appellant,

DOES, 1-10,

Defendant.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted April 11, 2024

San Francisco, California

Filed September 6, 2024

Before: Mary M. Schroeder, Susan P. Graber, and Jennifer

Sung, Circuit Judges.

Opinion by Judge Graber

4 WOLFORD V. LOPEZ

SUMMARY *

Second Amendment

The panel affirmed in part and reversed in large part

district court orders preliminarily enjoining the

implementation or enforcement of several provisions of

Hawaii and California laws that prohibit the carry of

firearms at sensitive places.

Hawaii generally prohibits a person with a carry permit

from bringing a firearm onto fifteen types of property, and

generally prohibits the carry of firearms onto private

property unless the owner allows it.

California generally prohibits a person with a concealed-

carry permit from carrying a firearm onto more than two

dozen types of property. California also generally prohibits

the carry of firearms onto private property that is open to the

public unless the owner allows it by clearly posting a sign at

the entrance to the premises indicating that licenseholders

are permitted to carry firearms onto the property.

Plaintiffs, individuals with concealed-carry permits and

various organizations whose members hold concealed-carry

permits, brought actions against the Attorney General of the

State of Hawaii and the Attorney General of the State of

California, alleging that the laws violate their Second

Amendment right to keep and bear arms.

Applying the guidance in New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), on how to determine

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WOLFORD V. LOPEZ 5

what kinds of places qualify as sensitive places such that

firearms may be prohibited, the panel held that some—but

not all—of the places specified by the Hawaii and California

laws likely fall within the national tradition of prohibiting

firearms at sensitive places.

The panel concluded that the proper approach for

determining whether a place is sensitive is as follows: For

places that have existed since the Founding, it suffices for

Defendants to identify historical regulations similar in

number and timeframe to the regulations that the Supreme

Court cited as justification for designating other places as

sensitive. For places that are newer, Defendants must point

to regulations that are analogous to the regulations cited by

the Supreme Court, taking into account that it is illogical to

expect a government to regulate a place before it existed in

its modern form. Historical regulations need not be a close

match to the challenged law; they need only evince a

principle underpinning our Nation’s historical tradition of

regulating firearms in places relevantly similar to those

covered by the challenged law.

Applying these principles to the Hawaii statute, the panel

affirmed the district court’s preliminary injunction to the

extent that it enjoins restrictions on firearms at financial

institutions, parking lots adjacent to financial institutions,

and parking lots shared by government buildings and non-

governmental buildings. The panel reversed the preliminary

injunction to the extent that it enjoins restrictions on firearms

at bars and restaurants that serve alcohol; at beaches, parks,

and similar areas; and in parking areas adjacent to all of those

places. The panel also reversed the preliminary injunction

with respect to the new default rule prohibiting the carry of

firearms onto private property without consent.

6 WOLFORD V. LOPEZ

Applying these principles to the California statute, the

panel affirmed the district court’s preliminary injunction to

the extent that it enjoins restrictions on firearms at hospitals

and similar medical facilities, public transit, gatherings that

require a permit, places of worship, financial institutions,

parking areas and similar areas connected to those places.

The panel also affirmed the district court’s preliminary

injunction with respect to the new default rule as to private

property. The panel reversed the preliminary injunction to

the extent it enjoins restrictions prohibiting firearms at bars

and restaurants that serve alcohol, playgrounds, youth

centers, parks, athletic areas, athletic facilities, most real

property under the control of the Department of Parks and

Recreation or the Department of Fish and Wildlife, casinos

and similar gambling establishments, stadiums, arenas,

public libraries, amusement parks, zoos, and museums;

parking areas and similar areas connected to those places;

and all parking areas connected to other sensitive places

listed in the statute.

COUNSEL

Alan A. Beck (argued), Law Offices of Alan Beck, San

Diego, California; Kevin G. O'Grady, Law Office of Kevin

O'Grady LLC, Honolulu, Hawaii; for Plaintiffs-Appellees.

Neal K. Katyal (argued) and Dana A. Raphael, Hogan

Lovells US LLP, Washington, D.C.; Benjamin A. Gifford,

Alexandra Lichtenstein, Mary McCord, and Shelby

Calambokidis, Georgetown University Law Center, Institute

for Constitutional Advocacy and Protection, Washington,

D.C.; Nicholas M. McLean, First Deputy Solicitor General;

Kalikoʻonālani D. Fernandes, Deputy Solicitor General;

WOLFORD V. LOPEZ 7

Anne E. Lopez, Hawaii Attorney General, Office of the

Attorney General Hawaii, Honolulu, Hawaii; for Defendant-

Appellant.

Thomas M. Bondy, Orrick Herrington & Sutcliffe LLP,

Washington, D.C.; Melanie Hallums, Orrick Herrington &

Sutcliffe LLP, New York, New York; Esther Sanchez-

Gomez, Giffords Law Center to Prevent Gun Violence, San

Francisco, California; Douglas N. Letter and Shira Lauren

Feldman, Brady Center to Prevent Gun Violence,

Washington, D.C.; for Amici Curiae Brady Center to

Prevent Gun Violence and Giffords Law Center to Prevent

Gun Violence.

Ashwin P. Phatak, Principal Deputy Solicitor General;

Caroline S. Van Zile, Deputy Attorney General; Brian L.

Schwalb, Attorney General for the District of Columbia;

Office of the District of Columbia Attorney General,

Washington, D.C.; Sarah A. Hunger, Deputy Solicitor

General; Jane E. Notz, Solicitor General; Kwame Raoul,

Attorney General for the State of Illinois; Office of the

Illinois Attorney General, Chicago, Illinois; Rob Bonta,

California Attorney General, Office of the California

Attorney General, Sacramento, California; Philip J. Weiser,

Attorney General of Colorado, Office of the Colorado

Attorney General, Denver, Colorado; William Tong,

Attorney General of Connecticut, Office of the Connecticut

Attorney General, Hartford, Connecticut; Kathleen

Jennings, Attorney General of Delaware, Office of the

Delaware Attorney General, Wilmington, Delaware; Aaron

M. Frey, Maine Attorney General, Office of the Maine

Attorney General, Augusta, Maine; Anthony G. Brown,

Attorney General of Maryland, Office of the Maryland

Attorney General, Baltimore, Maryland; Andrea J.

Campbell, Attorney General of Massachusetts, Office of the

8 WOLFORD V. LOPEZ

Massachusetts Attorney General, Boston, Massachusetts;

Dana Nessel, Attorney General of Michigan, Office of the

Michigan Attorney General, Lansing, Michigan; Keith

Ellison, Attorney General of Minnesota, Office of the

Minnesota Attorney General, St. Paul, Minnesota; Matthew

J. Platkin, New Jersey Attorney General, Office of the New

Jersey Attorney General, Trenton, New Jersey; Letitia

James, Attorney General of New York, Office of the New

York Attorney General, New York, New York; Ellen F.

Rosenblum, Attorney General of Oregon, Office of the

Oregon Attorney General, Salem, Oregon; Michelle A.

Henry, Attorney General of Pennsylvania, Office of

Harrisburg, Pennsylvania; Peter F. Neronha, Rhode Island

Attorney General, Office of the Rhode Island Attorney

General; Charity R. Clark, Attorney General of Vermont,

Office of the Vermont Attorney General, Montpelier,

Vermont; Robert M. Ferguson, Attorney General of

Washington, Office of the Washington Attorney General,

Olympia, Washington; Edward E. Manibusan, Northern

Mariana Islands Attorney General, Office of the Northern

Mariana Islands Attorney General, Saipan, Northern

Mariana Islands; for Amici Curiae The District of Columbia

and Illinois, California, Colorado, Connecticut, Delaware,

Maine, Maryland, Massachusetts, Michigan, Minnesota,

New Jersey, New York, Oregon, Pennsylvania, Rhode

Island, Vermont, Washington, and the Northern Mariana

Islands.

Alan E. Schoenfeld and Joshua M. Feinzig, Wilmer Cutler

Pickering Hale and Dorr LLP, New York, New York; Simon

B. Kress, Wilmer Cutler Pickering Hale and Dorr LLP,

Boston, Massachusetts; for Amici Curiae Professors of

Property Law.

WOLFORD V. LOPEZ 9

Priyanka G. Sen, Kari L. Still, William J. Taylor Jr., and

Janet Carter, Everytown Law, New York, New York; for

Amicus Curiae Everytown for Gun Safety.

Jeremy S. Smith, Patrick J. Fuster, Adrienne M. Liu, and

Eitan Arom, Gibson Dunn & Crutcher LLP, Los Angeles,

California; for Amicus Curiae Patrick J. Charles.

Peter M. Torstensen Jr., Deputy Solicitor General; Christian

B. Corrigan, Solicitor General; Austin Knudsen, Montana

Attorney General; Office of the Montana Attorney General,

Helena, Montana; Joshua N. Turner, Acting Solicitor

General; Raul R. Labrador, Idaho Attorney General; Idaho

Office of the Attorney General, Boise, Idaho; for Amicus

Curiae State of Montana, Idaho and 15 other States.

Erin M. Erhardt and Michael T. Jean, NRA Office of the

General Counsel, Fairfax, Virginia; for Amicus Curiae

National Rifle Association of America Inc..

Edward A. Paltzik, Meredith Lloyd, and Serge Krimnus,

Bochner PLLC, New York, New York, for Amicus Curiae

The Second Amendment Foundation.

Sebastian D. Torres, Gatlin Voelker PLLC, Covington,

Kentucky; for Amicus Curiae National Association for Gun

Rights.

Carl D. Michel, Anna M. Barvir, and Konstadinos T. Moros,

Michel & Associates PC, Long Beach, California; for

Amicus Curiae Gun Owners of America Inc., Second

Amendment Law Center, Hawaii Rifle Association,

California Rifle & Pistol Association, Gun Owners of

California; and Gun Owners Foundation.

Bradley A. Benbrook and Stephen M. Duvernay, Benbrook

Law Group PC, Sacramento, California; for Amici Curiae

10 WOLFORD V. LOPEZ

Angus Kirk McClellan, FPC Action Foundation, Firearms

Policy Coalition, California Gun Rights Foundation, The

Center for Human Liberty, and Citizens Committee for the

Right to Keep and Bear Arms.

Alexander A. Frank (argued), C.D. Michel, Joshua R. Dale,

and Konstadinos T. Moros, Michel & Associates PC, Long

Beach, California; Donald Kilmer, Law Offices of Donald

Kilmer APC, Caldwell, Idaho; for Appellees.

Peter A. Patterson (argued), David H. Thompson, and Kate

Hardiman, Cooper & Kirk PLLC, Washington, D.C.;

Bradley A. Benbrook and Stephen M. Duvernay, Benbrook

Law Group PC, Sacramento, California; for Plaintiffs-

Appellees.

Robert L. Meyerhoff (argued), Todd Grabarsky, Jane

Reilley, Lisa J. Plank, and Carolyn Downs, Deputy

Attorneys General; Mark R. Beckington and R. Matthew

Wise, Supervising Deputy Attorneys General; Thomas S.

Patterson, Senior Assistant Attorney General; Rob Bonta,

California Attorney General; United States Department of

Justice, Office of the California Attorney General, Los

Angeles, California; for Defendant-Appellant.

Sarah A. Hunger, Deputy Solicitor General; Jane E. Notz,

Solicitor General; Kwame Raoul, Illinois Attorney General;

Office of the Illinois Attorney General, Chicago, Illinois;

Russell C. Bogue, Assistant Attorney General; Ashwin P.

Phatak, Principal Deputy Solicitor General; Caroline S. Van

Zile, Solicitor General; Brian L. Schwalb, Attorney General

for the District of Columbia; Office of the District of

Columbia Attorney General, Washington, D.C.; William

Tong, Connecticut Attorney General, Office of the

Connecticut Attorney General, Hartford, Connecticut;

Kathleen Jennings, Delaware Attorney General, Office of

WOLFORD V. LOPEZ 11

the Delaware Attorney General, Wilmington, Delaware;

Anne E. Lopez, Hawaii Attorney General, Office of the

Hawaii Attorney General, Honolulu, Hawaii; Anthony G.

Brown, Maryland Attorney General, Office of the Maryland

Attorney General, Baltimore, Maryland; Andrea Joy

Campell, Commonwealth of Massachusetts Attorney

General, Office of the Commonwealth of Massachusetts

Attorney General, Boston, Massachusetts; Dana Nessel,

Michigan Attorney General, Office of the Michigan

Attorney General, Lansing, Michigan; Keith Ellison,

Minnesota Attorney General, Office of the Minnesota

Attorney General, St. Paul, Minnesota; Aaron D. Ford,

Nevada Attorney General, Office of the Nevada Attorney

General, Carson City, Nevada; Matthew J. Platkin, New

Jersey Attorney General, Office of the New Jersey Attorney

General, Trenton, New Jersey; Letitia James, New York

Attorney General, Office of the New York Attorney General,

New York, New York; Ellen F. Rosenblum, Oregon

Attorney General, Office of the Oregon Attorney General,

Salem, Oregon; Michelle A. Henry, Commonwealth of

Pennsylvania Attorney General, Office of the

Commonwealth of Pennsylvania Attorney General,

Harrisburg, Pennsylvania; Peter F. Neronha, Rhode Island

Attorney General, Office of the Rhode Island Attorney

General, Providence, Rhode Island; Charity R. Clark,

Vermont Attorney General, Office of the Vermont Attorney

General, Montpelier, Vermont; Robert W. Ferguson,

Washington Attorney General, Office of the Washington

Attorney General, Olympia, Washington; Edward E.

Manibusan, Commonwealth of the Northern Mariana

Islands Attorney General, Office of the Commonwealth of

the Northern Mariana Islands Attorney General, Saipan,

Northern Mariana Islands; for Amici Curiae District of

12 WOLFORD V. LOPEZ

Columbia, Illinois, Connecticut, Delaware, Hawaii,

Maryland, Massachusetts, Michigan, Minnesota, Nevada,

New Jersey, New York, Oregon, Pennsylvania, Rhode

Island, Vermont, and the Northern Mariana Islands.

Janet Carter, William J. Taylor, Jr., and Priyanka G. Sen,

Everytown Law, New York, New York, for Amicus Curiae

Everytown for Gun Safety.

Stephanie Yonekura, Hogan Lovells US LLP, Los Angeles,

California; Rachel M. Bayer and Diala Alqadi, Hogan

Lovells US LLP, New York, New York; Joshua Schulster,

Hogan Lovells US LLP, Miami, Florida; Jonathan L.

Diesenhaus, Hannah M. Graae, and Allisa Newman, Hogan

Lovells US LLP, Washington, D.C.; Elizabeth A. Och,

Hogan Lovells US LLP, Denver, Colorado; Alex Ervin,

Hogan Lovells US LLP, Philadelphia, Pennsylvania; for

Amici Curiae March for Our Lives.

David E. Mastagni, Mastagni Holstedt APC, Sacramento,

California; Timothy K. Talbot, Rains Lucia Stern St. Phalle

& Silver PC, Pleasant Hill, California; for Amici Curiae

Peace Officers Research Association of California,

California State Sheriff’s Association, California

Association of Highway Patrolmen, and Crime Prevention

Research Center.

WOLFORD V. LOPEZ 13

OPINION

GRABER, Circuit Judge:

In its modern decisions concerning the Second

Amendment, the Supreme Court has emphasized that its

rulings do not call into question longstanding laws

prohibiting the carry of firearms at sensitive places such as

schools and government buildings. New York State Rifle &

Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022); McDonald

v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality

opinion); District of Columbia v. Heller, 554 U.S. 570, 626

(2008); see also United States v. Rahimi, 602 U.S. –, 144 S.

Ct. 1889, 1923 (2024) (Kavanaugh, J., concurring) (stressing

this point); Bruen, 597 U.S. at 81 (Kavanaugh, J.,

concurring, joined by Roberts, C.J.) (same). In Bruen, the

Court provided specific guidance on how to determine what

kinds of places qualify as “sensitive places” such that

firearms may be prohibited. 597 U.S. at 30–31. Applying

that guidance to laws recently enacted by the Hawaii and

California legislatures, we conclude that some—but not

all—of the places specified by those laws likely fall within

the national tradition of prohibiting firearms at sensitive

places.

Parks in modern form, for example, first arose in the

middle of the 19th century; governments throughout the

nation immediately imposed prohibitions on firearms in

parks; the constitutionality of those bans was unquestioned;

and those regulations are akin to laws recognized by Bruen

as sufficiently representative to qualify a location as a

“sensitive place.” States permissibly may prohibit firearms

in most parks. By contrast, banks have existed throughout

our Nation’s history, but the historical record does not

14 WOLFORD V. LOPEZ

demonstrate a comparable national tradition of banning

firearms at banks. Applying Bruen’s guidance, we conclude

that the Second Amendment likely prohibits a State from

banning firearms in banks. But that conclusion is less

restrictive than it may appear at first glance. As the owner

or operator of private property, a bank may prohibit firearms

as a matter of the ordinary property-law right to exclude.

And if a State operates a bank, the State, too, may exercise

its proprietary right to exclude, just as a private property

owner may. See Bldg. & Constr. Trades Council v.

Associated Builders & Contractors of Mass./R. I., Inc., 507

U.S. 218, 231–32 (1993) (explaining that a State generally

may “manage its own property when it pursues its purely

proprietary interests . . . where analogous private conduct

would be permitted”). But we conclude that, because there

is no comparable historical tradition as required by Bruen, a

State may not prohibit a bank’s owner from permitting the

carry of firearms if the bank’s owner wishes to allow patrons

to carry firearms into the bank.

In the cases before us, the district courts preliminarily

enjoined the implementation or enforcement of several

provisions of the Hawaii and California laws. Because we

conclude that the district courts erred in applying Bruen with

respect to most of those provisions, we reverse in large part.

But because Plaintiffs are likely to prevail with respect to

some aspects of the laws, we also affirm in part.

FACTUAL AND PROCEDURAL HISTORY

A. Factual and Procedural Background in Hawaii

In 2023, the Hawaii legislature enacted Act 52, which

has been codified, as relevant here, in Hawaii Revised

Statutes sections 134-9.1 and 134-9.5. The statute generally

prohibits a person with a carry permit from bringing a

WOLFORD V. LOPEZ 15

firearm onto fifteen types of property. Haw. Rev. Stat.

§ 134-9.1(a). A violation of the law is a misdemeanor. Id.

§ 134-9.1(f).

The law also flips the default rule on all private property:

Whereas the old rule allowed a person with a carry permit to

bring firearms onto private property unless the owner

prohibited it, the new rule generally prohibits the carry of

firearms onto private property unless the owner allows it. Id.

§ 134-9.5(a). Under Hawaii’s law, an owner may consent

either by “[u]nambiguous written or verbal authorization” or

by the “posting of clear and conspicuous signage.” Id.

§ 134-9.5(b). A violation of the law is a misdemeanor. Id.

§ 134-9.5(e).

We reproduce the relevant portions of Hawaii’s law.

Section 134-9.1 states, in relevant part:

(a) A person with a license issued under

section 134-9, or authorized to carry a firearm

in accordance with title 18 United States

Code section 926B or 926C, shall not

intentionally, knowingly, or recklessly carry

or possess a loaded or unloaded firearm,

whether the firearm is operable or not, and

whether the firearm is concealed or

unconcealed, while in any of the following

locations and premises within the State:

(1) Any building or office owned, leased, or

used by the State or a county, and adjacent

grounds and parking areas, including any

portion of a building or office used for court

proceedings, legislative business, contested

16 WOLFORD V. LOPEZ

case hearings, agency rulemaking, or other

activities of state or county government;

....

(4) Any bar or restaurant serving alcohol or

intoxicating liquor as defined in section 281-

1 for consumption on the premises, including

adjacent parking areas;

....

(9) Any beach, playground, park, or adjacent

parking area, including any state park, state

monument, county park, tennis court, golf

course, swimming pool, or other recreation

area or facility under control, maintenance,

and management of the State or a county, but

not including an authorized target range or

shooting complex;

....

(12) The premises of any bank or financial

institution as defined in section 211D-1,

including adjacent parking areas;

....

(f) Any person who violates this section shall

be guilty of a misdemeanor.

Id. § 134-9.1. Section 134-9.5 states:

(a) A person carrying a firearm pursuant to a

license issued under section 134-9 shall not

intentionally, knowingly, or recklessly enter

or remain on private property of another

WOLFORD V. LOPEZ 17

person while carrying a loaded or unloaded

firearm, whether the firearm is operable or

not, and whether the firearm is concealed or

unconcealed, unless the person has been

given express authorization to carry a firearm

on the property by the owner, lessee,

operator, or manager of the property.

(b) For purposes of this section, express

authorization to carry or possess a firearm on

private property shall be signified by:

(1) Unambiguous written or verbal

authorization; or

(2) The posting of clear and conspicuous

signage at the entrance of the building or

on the premises,

by the owner, lessee, operator, or manager of

the property, or agent thereof, indicating that

carrying or possessing a firearm is

authorized.

(c) For purposes of this section:

“Private entity” means any homeowners’

association, community association, planned

community association, condominium

association, cooperative, or any other

nongovernmental entity with covenants,

bylaws, or administrative rules, regulations,

or provisions governing the use of private

property.

18 WOLFORD V. LOPEZ

“Private property” does not include property

that is owned or leased by any governmental

entity.

“Private property of another person” means

residential, commercial, industrial,

agricultural, institutional, or undeveloped

property that is privately owned or leased,

unless the person carrying a firearm is an

owner, lessee, operator, or manager of the

property, including an ownership interest in a

common element or limited common element

of the property; provided that nothing in this

chapter shall be construed to limit the

enforceability of a provision in any private

rental agreement restricting a tenant’s

possession or use of firearms, the

enforceability of a restrictive covenant

restricting the possession or use of firearms,

or the authority of any private entity to

restrict the possession or use of firearms on

private property.

(d) This section shall not apply to a person in

an exempt category identified in section 134-

11(a).

(e) Any person who violates this section shall

be guilty of a misdemeanor.

Id. § 134-9.5.

In Wolford, Plaintiffs Jason Wolford, Alison Wolford,

and Atom Kasprzycki live in Maui, and each individual

Plaintiff has a concealed-carry permit. Plaintiff Hawaii

Firearms Coalition is incorporated in Hawaii and has 33

WOLFORD V. LOPEZ 19

members who possess valid concealed-carry permits.

Plaintiffs allege, among other claims, that the quoted

portions of the new law are unconstitutional restrictions on

their Second Amendment right to keep and bear arms.

Plaintiffs brought this 42 U.S.C. § 1983 action against

Defendant Anne E. Lopez, in her official capacity as

Attorney General of Hawaii.

Plaintiffs moved for a temporary restraining order and a

preliminary injunction. Plaintiffs challenged only a limited

subset of the law’s provisions. The district court granted in

part and denied in part a temporary restraining order.

Wolford v. Lopez, 686 F. Supp. 3d 1034 (D. Haw. 2023).

The court later converted the temporary restraining order

into a preliminary injunction. In particular, the court

enjoined the law’s prohibition on the carrying of firearms in

parking lots shared by government buildings and non-

government buildings; banks, financial institutions, and their

adjacent parking areas; public beaches, public parks, and

their adjacent parking areas; and bars, restaurants that serve

alcohol, and their adjacent parking areas. Id. at 1076–77.

The court also enjoined the new default rule for private

property but limited the injunction to private property held

open to the public. Id. at 1077.

Defendant timely appeals. Before us, Defendant has not

sought a stay of the injunction on appeal. Plaintiffs have not

filed a separate appeal or a cross-appeal challenging the

district court’s partial denial of a preliminary injunction.

B. Factual and Procedural Background in California

Also in 2023, the California legislature enacted Senate

Bill 2, which has been codified, as relevant here, in

California Penal Code section 26230. The law generally

prohibits a person with a concealed-carry permit from

20 WOLFORD V. LOPEZ

carrying a firearm onto more than two dozen types of

property. Cal. Penal Code § 26230(a). The law also flips

the default rule on all private property that is open to the

public. Id. § 26230(a)(26). But California’s statute is

stricter than Hawaii’s law with respect to how a private-

property owner may overcome the new default rule

prohibiting firearms. In California, a property owner may

consent to the carrying of firearms only by “clearly and

conspicuously post[ing] a sign at the entrance of the building

or on the premises indicating that licenseholders are

permitted to carry firearms on the property.” Id. Other

forms of permission, such as oral or written consent, do not

suffice.

We reproduce the relevant parts of California Penal Code

section 26230:

(a) A person granted a license to carry a

pistol, revolver, or other firearm capable of

being concealed upon the person pursuant to

Section 26150, 26155, or 26170 shall not

carry a firearm on or into any of the

following:

(1) A place prohibited by Section 626.9.

(2) A building, real property, or parking area

under the control of a preschool or childcare

facility, including a room or portion of a

building under the control of a preschool or

childcare facility. Nothing in this paragraph

shall prevent the operator of a childcare

facility in a family home from owning or

possessing a firearm in the home if no child

under child care at the home is present in the

WOLFORD V. LOPEZ 21

home or the firearm in the home is unloaded,

stored in a locked container, and stored

separately from ammunition when a child

under child care at the home is present in the

home so long as the childcare provider

notifies clients that there is a firearm in the

home.

(3) A building, parking area, or portion of a

building under the control of an officer of the

executive or legislative branch of the state

government, except as allowed pursuant to

paragraph (2) of subdivision (b) of Section

171c.

(4) A building designated for a court

proceeding, including matters before a

superior court, district court of appeal, or the

California Supreme Court, parking area

under the control of the owner or operator of

that building, or a building or portion of a

building under the control of the Supreme

Court, unless the person is a justice, judge, or

commissioner of that court.

(5) A building, parking area, or portion of a

building under the control of a unit of local

government, unless the firearm is being

carried for purposes of training pursuant to

Section 26165.

(6) A building, real property, and parking

area under the control of an adult or juvenile

detention or correctional institution, prison,

or jail.

22 WOLFORD V. LOPEZ

(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.

(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.

(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.

(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.

(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.

WOLFORD V. LOPEZ 23

(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.

(13) Real property under the control of the

Department of Parks and Recreation or

Department of Fish and Wildlife, except

those areas designated for hunting pursuant

to Section 5003.1 of the Public Resources

Code, Section 4501 of Title 14 of the

California Code of Regulations, or any other

designated public hunting area, public

shooting ground, or building where firearm

possession is permitted by applicable law.

(14) Any area under the control of 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, whether owned or

leased, and any real property, including

parking areas, sidewalks, and common areas.

(15) A building, real property, or parking area

that is or would be used for gambling or

gaming of any kind whatsoever, including,

but not limited to, casinos, gambling

establishments, gaming clubs, bingo

24 WOLFORD V. LOPEZ

operations, facilities licensed by the

California Horse Racing Board, or a facility

wherein banked or percentage games, any

form of gambling device, or lotteries, other

than the California State Lottery, are or will

be played.

(16) A stadium, arena, or the real property or

parking area under the control of a stadium,

arena, or a collegiate or professional sporting

or eSporting event.

(17) A building, real property, or parking area

under the control of a public library.

(18) A building, real property, or parking area

under the control of an airport or passenger

vessel terminal, as those terms are defined in

subdivision (a) of Section 171.5.

(19) A building, real property, or parking area

under the control of an amusement park.

(20) A building, real property, or parking area

under the control of a zoo or museum.

(21) A street, driveway, parking area,

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.

(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

WOLFORD V. LOPEZ 25

conspicuously posts a sign at the entrance of

the building or on the premises indicating that

licenseholders 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.

(23) A financial institution or parking area

under the control of a financial institution.

(24) A police, sheriff, or highway patrol

station or parking area under control of a law

enforcement agency.

(25) A polling place, voting center, precinct,

or other area or location where votes are

being cast or cast ballots are being returned

or counted, or the streets or sidewalks

immediately adjacent to any of these places.

(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 licenseholders 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.

(27) Any other place or area prohibited by

other provisions of state law.

(28) Any other place or area prohibited by

federal law.

26 WOLFORD V. LOPEZ

(29) Any other place or area prohibited by

local law.

Id. § 26230(a).

In May and Carralero, Plaintiffs Marco Antonio

Carralero, Garrison Ham, Michael Schwartz, Reno May,

Anthony Miranda, Eric Hans, Gary Brennan, Oscar A.

Barretto, Jr., Isabelle R. Barretto, Barry Bahrami, Pete

Stephenson, Jose Flores, Andrew Harms, and Dr. Sheldon

Hough, DDS, live in California and have concealed-carry

permits. Plaintiffs Orange County Gun Owners PAC, San

Diego County Gun Owners PAC, California Gun Rights

Foundation, Firearms Policy Coalition, Inc., Second

Amendment Foundation, Gun Owners of America, Gun

Owners Foundation, Gun Owners of California, Inc., the

Liberal Gun Owners Association, and the California Rifle &

Pistol Association, Inc., have members who hold concealed-

carry permits. Plaintiffs allege that many provisions of the

new law are unconstitutional restrictions on their Second

Amendment right to keep and bear arms. Plaintiffs brought

two separate actions, pursuant to 42 U.S.C. § 1983, against

Defendant Rob Bonta, in his official capacity as Attorney

General of California.

Plaintiffs moved for a preliminary injunction, seeking to

enjoin many parts of section 26230. The district court issued

an opinion addressing the motions in both cases, and the

court granted in full the requested injunctive relief. May v.

Bonta, Nos. SACV 23-01696-CJC (ADSx) & SACV 23-

01798-CJC (ADSx), 2023 WL 8946212 (S.D. Cal. Dec. 20,

2023). In particular, the court enjoined Defendant from

implementing the law concerning California’s ban on

concealed carry in hospitals; playgrounds; public transit;

parks and athletic facilities; property controlled by the Parks

WOLFORD V. LOPEZ 27

and Recreation Department; bars and restaurants that serve

alcohol; gatherings that require a permit; libraries; casinos;

zoos; stadiums and arenas; amusement parks; museums;

places of worship; banks; and all parking lots adjacent to

sensitive places, including sensitive places unchallenged by

Plaintiffs. The court also enjoined the new default rule for

private property held open to the public.

Defendant timely appealed in both California cases, and

we consolidated the appeals. In order to preserve the status

quo, we denied Defendant’s request for a stay pending

appeal.

STANDARDS OF REVIEW

We review de novo whether Plaintiffs have standing.

Tucson v. City of Seattle, 91 F.4th 1318, 1324 (9th Cir.

2024). We review for abuse of discretion the district court’s

grant of a preliminary injunction. Id. “A district court

abuses its discretion if it rests its decision on an erroneous

legal standard or on clearly erroneous factual findings.” Am.

Beverage Ass’n v. City & County of San Francisco, 916 F.3d

749, 754 (9th Cir. 2019) (en banc) (citation and internal

quotation marks omitted).

DISCUSSION

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. Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008). Because the

government is a party, the “last two factors merge.” Drakes

Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.

2014).

28 WOLFORD V. LOPEZ

We address together the issues from the Hawaii case and

the California cases, differentiating where appropriate. For

each case, we have considered only the evidence in the

record in that case. See, e.g., Bruen, 597 U.S. at 25 n.6

(holding that courts are “entitled to decide a case based on

the historical record compiled by the parties”). With respect

to legal sources, however, we may—but are not required

to—consider laws and other legal sources whether or not the

parties have focused on those specific laws or judicial

decisions. See id. at 60 (conducting independent legal

research as a matter of discretion). Similarly, context

dictates whether our references to “Defendant,”

“Defendants,” or “Plaintiffs” pertain to the parties in the

Hawaii case, the California cases, or the cases in both states.

A. Likelihood of Success on the Merits

The Second Amendment states: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” The Amendment creates an individual right to

keep and bear arms for self-defense. Heller, 554 U.S. at 602.

The right applies against States via the Fourteenth

Amendment. McDonald, 561 U.S. at 750, 791.

In Bruen, the Supreme Court announced 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

Constitution presumptively protects that

conduct. The government must then justify

its regulation by demonstrating that it is

WOLFORD V. LOPEZ 29

consistent with the Nation’s historical

tradition of firearm regulation.

597 U.S. at 24. With respect to the historical analysis at

Bruen’s second step, the Court required a different showing

depending on whether the government’s regulation

addresses a societal problem that has persisted since the

Founding or one that is more modern:

[W]hen a challenged regulation addresses a

general societal problem that has persisted

since the 18th century, the lack of a distinctly

similar historical regulation addressing that

problem is relevant evidence that the

challenged regulation is inconsistent with the

Second Amendment. Likewise, if earlier

generations addressed the societal problem,

but did so through materially different means,

that also could be evidence that a modern

regulation is unconstitutional. And if some

jurisdictions actually attempted to enact

analogous regulations during this timeframe,

but those proposals were rejected on

constitutional grounds, that rejection surely

would provide some probative evidence of

unconstitutionality.

Id. at 26–27 (emphasis added). We refer to this standard as

the “distinctly similar” test.

By contrast, “cases implicating unprecedented societal

concerns or dramatic technological changes may require a

more nuanced approach.” Id. at 27. “When confronting

such present-day firearm regulations, this historical inquiry

30 WOLFORD V. LOPEZ

that courts must conduct will often involve reasoning by

analogy . . . . [D]etermining whether a historical regulation

is a proper analogue for a distinctly modern firearm

regulation requires a determination of whether the two

regulations are ‘relevantly similar.’” Id. at 28–29 (citation

omitted). “[T]wo metrics” guide this comparison: “how and

why the regulations burden a law-abiding citizen’s right to

armed self-defense.” Id. at 29. In other words, we assess

“whether modern and historical regulations impose a

comparable burden on the right of armed self-defense and

whether that burden is comparably justified.” Id.

Analogical reasoning “is neither a regulatory straightjacket

nor a regulatory blank check.” Id. at 30. The government

must “identify a well-established and representative

historical analogue, not a historical twin” or a “dead ringer.”

Id.

Rather than taking the “more nuanced approach,” the

Supreme Court applied the “distinctly similar” test in both

Heller, which concerned a ban on handguns, and Bruen,

which concerned conditions for obtaining a concealed-carry

permit. Id. at 27. In applying that test in Bruen, the Court

was strict in its search for a distinctly similar regulation that

could justify New York’s “proper cause” concealed-carry

permitting requirement. Id. at 11, 39–70. In an exhaustive

historical analysis, the Court held that no early law was

analogous to the “proper cause” requirement, and the Court

also noted that several state courts had ruled in ways that

were contrary to a “proper cause” requirement. Id. at 39–55.

Although the Court ruled that the defendants’ proffered

colonial laws were not on point, the Court began its analysis

with this dictum: “For starters, we doubt that three colonial

regulations could suffice to show a tradition of public-carry

regulation.” Id. at 46. The Court next acknowledged that an

WOLFORD V. LOPEZ 31

1871 Texas law and a pair of Texas court decisions

supported New York’s law. Id. at 64–65. But the Court

dismissed that evidence as insufficient in light of the weighty

conflicting evidence; that is, the Texas examples were

“outliers.” Id. at 65. Similarly, the Court discounted the

significance of several late-1800s territorial laws because

they “contradicted earlier evidence.” Id. at 66. The Court

explained that the territories were not part of the Union at the

time; the laws governed “miniscule” populations; the laws

were rarely subject to judicial scrutiny, so we do not know if

or how the laws were viewed as constitutional; and the laws

were short-lived. Id. at 67–70. In sum, Heller and Bruen

imposed a challenging burden on the government where the

regulation in question addressed an issue that has existed

since the Founding, had not been affected by a technological

change, and did not concern a uniquely modern problem. In

that context, Bruen instructs that historical analogues

inconsistent with the “overwhelming weight of other

evidence” are undeserving of much weight, especially those

laws that governed only a few colonies or territories, affected

a small population, or were enacted in the late 19th century

or later. Id. at 66 (quoting Heller, 554 U.S. at 632).

The Court’s analysis in Bruen misled some courts into

imposing too rigid a test when considering historical

sources. In Rahimi, the Court clarified that Bruen did not

require stringent adherence to Founding-era laws,

emphasizing that its “precedents were not meant to suggest

a law trapped in amber.” 144 S. Ct. at 1897. Instead of

looking for a precise historical match, “the appropriate

analysis involves considering whether the challenged

regulation is consistent with the principles that underpin our

regulatory tradition.” Id. at 1898. The Court emphasized

that a challenged law “must comport with the principles

32 WOLFORD V. LOPEZ

underlying the Second Amendment, but it need not be a

‘dead ringer’ or a ‘historical twin.’” Id. (quoting Bruen, 597

U.S. at 30).

The Court went on to demonstrate how such principles

may be derived from historical analogues. The law

challenged in Rahimi prohibits persons subject to a

domestic-violence order from possessing any firearm. Id. at

1895. The Court considered two types of historical

analogues that were “by no means identical” to the

challenged law: (a) historical surety laws that targeted the

misuse of firearms but imposed no firearms restrictions at all

and (b) “going armed” laws that regulated only publicly

threatening conduct, including a threatening use of firearms,

and that imposed criminal penalties only after a trial with full

constitutional protections. Id. at 1899–1901; see id. at 1938–

43 (Thomas, J., dissenting) (describing the historical laws).

From those laws, the Court distilled the principle that it is

consistent with the Second Amendment to disarm

individuals when they pose a clear threat of violence to

another. Id. at 1901. Because the challenged law restricts

the use of firearms to mitigate demonstrated threats of

violence, the Court held that the law fits within the national

tradition of regulating firearms. Id. at 1901–02. Rahimi

therefore instructs that, even where historical analogues are

not close matches to the challenged law, they may evince

principles underpinning our Nation’s regulatory tradition,

and it is sufficient for the government to show that its law is

consistent with those principles.

In addition to laying out this approach, the Court has

provided specific guidance on the appropriate analysis when

WOLFORD V. LOPEZ 33

assessing the regulation of firearms in sensitive places in

particular. In Heller, the Court wrote:

Although we do not undertake an exhaustive

historical analysis today of the full scope of

the Second Amendment, nothing in our

opinion should be taken to cast doubt on . . .

laws forbidding the carrying of firearms in

sensitive places such as schools and

government buildings . . . .

554 U.S. at 626; see also id. at 627 n.26 (emphasizing that

the list is not exhaustive). In McDonald, the Court expressly

“repeat[ed] those assurances” and quoted the passage from

Heller. 561 U.S. at 786 (plurality opinion).

In Bruen, the Court elaborated on the appropriate

methodology for assessing whether a place qualifies as a

“sensitive place”:

Consider, for example, Heller’s

discussion of “longstanding” “laws

forbidding the carrying of firearms in

sensitive places such as schools and

government buildings.” 554 U.S. at 626.

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. See D. Kopel & J. Greenlee,

The “Sensitive Places” Doctrine, 13

34 WOLFORD V. LOPEZ

Charleston L. Rev. 205, 229–236, 244–247

(2018); see also Brief for Independent

Institute as Amicus Curiae 11–17. We

therefore can assume it settled that these

locations were “sensitive places” where arms

carrying could be prohibited consistent with

the Second Amendment. And courts can use

analogies to those historical regulations of

“sensitive places” to determine that modern

regulations prohibiting the carry of firearms

in new and analogous sensitive places are

constitutionally permissible.

597 U.S. at 30 (one citation omitted). The following

regulations justified the Court’s conclusion that legislative

assemblies, polling places, courthouses, and schools were

“sensitive places” where firearms could be banned: a pair of

Maryland statutes from 1647 and 1650 banning arms at

legislative assemblies; a 1776 Delaware law and a 1787 New

York law prohibiting arms at polling places, as well as some

state laws enacted after 1868; a single 1786 Virginia law

prohibiting arms at courthouses and a 19th century Georgia

law prohibiting weapons in a court of justice; and localized

bans on the carry of firearms at a few schools beginning in

1824. Kopel, The “Sensitive Places” Doctrine, 13

Charleston L. Rev. at 229–236, 244–247; Brief for

Independent Institute as Amicus Curiae, pp. 11–17, Bruen,

597 U.S. 1; see also Antonyuk v. Chiumento, 89 F.4th 271,

303–04 (2d Cir. 2023) (examining these same sources),

petition for cert. granted, decision vacated, & case remanded

sub nom. Antonyuk v. James, No. 23-910, 2024 WL

WOLFORD V. LOPEZ 35

3259671 (U.S. July 2, 2024); 1 Goldstein v. Hochul, 680 F.

Supp. 3d 370, 392–93 & n.12 (S.D.N.Y. June 28, 2023)

(same), appeal filed, No. 23-995 (2d Cir. July 6, 2023).

We pause to note the difference between the “distinctly

similar” test applied in Bruen to New York’s law and the

more lenient standard that applies when analyzing the

regulation of firearms at “sensitive places.” After all, only

one or two colonial laws provided sufficient justification for

the Court to designate several places as sensitive. The Court

placed schools in this category, even though no law

prohibited firearms in schools until more than thirty years

after the ratification of the Second Amendment. By contrast,

when Bruen applied the “distinctly similar” test to New

York’s probable-cause law, the Court’s analysis was more

stringent. It noted, for example, that “we doubt that three

colonial regulations could suffice to show a tradition of

public-carry regulation,” 597 U.S. at 46, and insisting on a

close match between the historical regulation and the

modern one, e.g., id. at 47–50.

The “proper cause” requirement at issue in Bruen

addressed a societal problem that had been present since the

Founding, which caused the Court to apply the stricter

“distinctly similar” test. Id. at 26–27. Moreover, Bruen

emphasized that much evidence—primarily state court

decisions—weighed strongly against the constitutionality of

New York’s law. In that circumstance, a few outlier statutes,

especially in places with tiny populations and especially

1

Throughout this opinion, we cite the Second Circuit’s pre-Rahimi

decision in Antonyuk for its persuasive value. Except as specifically

noted otherwise, we conclude that the reasoning of Antonyuk is

consistent with the Supreme Court’s decision in Rahimi and therefore

retains its persuasive worth.

36 WOLFORD V. LOPEZ

when enacted well after the Founding, did not suffice to

identify a national historical tradition.

With respect to sensitive places, however, those

concerns are diminished. Our Nation has a clear historical

tradition of banning firearms at sensitive places. Bruen, 597

U.S. at 30; McDonald, 561 U.S. at 786 (plurality opinion);

Heller, 554 U.S. at 626. When examining whether a

particular place falls within that tradition, a small number of

laws, even localized laws, can suffice, if those laws were

viewed as non-controversial. Nor did the Founders have a

rigid conception of what kinds of places qualified as

sensitive. The Supreme Court held that schools qualify as

sensitive places because of localized, non-controversial laws

that prohibited firearms at a few schools, and those laws

were first enacted in 1824—more than three decades after

the ratification of the Second Amendment. The relevant

tradition—regulation of firearms at sensitive places—

existed at the Founding. Whether a place falls within that

tradition requires an examination of laws, including 19th-

century laws.

It bears emphasizing that the laws at issue here are state

laws. The Second Amendment applies to the States because

of the Fourteenth Amendment’s ratification in 1868.

McDonald, 561 U.S. at 750. We thus agree with the Second

Circuit that, at least when considering the “sensitive places”

doctrine, we look to the understanding of the right to bear

arms both at the time of the ratification of the Second

Amendment in 1791 and at the time of the ratification of the

Fourteenth Amendment in 1868. Antonyuk, 89 F.4th at

304–05. “[T]he understanding that prevailed when the

States adopted the Fourteenth Amendment . . . is, along with

the understanding of that right held by the founders in 1791,

a relevant consideration.” Id. at 305 (citations and internal

WOLFORD V. LOPEZ 37

quotation marks omitted); see McDonald, 561 U.S. at 778

(plurality opinion) (“[I]t is clear that the Framers and

ratifiers of the Fourteenth Amendment counted the right to

keep and bear arms among those fundamental rights

necessary to our system of ordered liberty.” (emphasis

added)).

We conclude that the proper approach for determining

whether a place is sensitive is as follows. For places that

have existed since the Founding, it suffices for Defendant to

identify historical regulations similar in number and

timeframe to the regulations that the Supreme Court cited as

justification for designating other places as sensitive. For

places that are newer, Defendant must point to regulations

that are analogous to the regulations cited by the Court,

taking into account that it is illogical to expect a government

to regulate a place before it existed in its modern form. For

example, it makes little sense to ask whether the Founders

regulated firearms at nuclear power plants.

For both types of places, historical regulations need not

be a close match to the challenged law; they need only evince

a principle underpinning our Nation’s historical tradition of

regulating firearms in places relevantly similar to those

covered by the challenged law. Rahimi, 144 S. Ct. at 1898.

A key factor is whether the constitutionality of the historical

regulations was disputed. A dispute as to constitutionality

may tip the scales in favor of Plaintiffs, particularly if the

evidence in favor of Defendants is weak. Bruen, 597 U.S. at

27. By the same token, if the constitutionality of historical

laws went undisputed in the courts in the Nation’s early

years, that evidence suggests that the laws were

constitutional. Id. at 30. Similarly, if courts unanimously

confirmed laws as constitutional, that evidence, too,

suggests that the laws were constitutional; the fact that a

38 WOLFORD V. LOPEZ

criminal defendant or two raised a Second Amendment

argument that courts quickly rejected does not create a

meaningful dispute as to the constitutionality of the law.

In sum, one way that Defendants can show a historical

tradition is by establishing that, when a type of place first

arose, or first arose in modern form, states and municipalities

began to regulate the possession of firearms at that type of

place, the regulations were considered constitutional at the

time, and the regulations were comparable to a tradition of

regulating a similar place or places in the earlier years of the

Nation.

Before turning to the specific challenges here, we

address a few general arguments made by the parties. First,

some Plaintiffs assert that the only type of sensitive place

that qualifies is a place that has “armed government guards

and metal detectors at a minimum at every point of entry.”

That assertion flatly contradicts Bruen. Many schools and

polling places have few security measures—now or in the

past—yet the Supreme Court listed those places as

conclusively sensitive. Id. Put simply, lack of

comprehensive government security is not a determinative

factor.

Other Plaintiffs suggest that, whatever bans may have

been enacted with respect to the general population, there is

no national historical tradition of banning the carry of

firearms by those who have concealed-carry permits. We

reject that suggestion as illogical. The issue in this case

concerns categories of property, not categories of people. If

a particular place is a “sensitive place” such that firearms

may be banned, then firearms may be banned—for everyone,

including permit holders—consistent with the Second

Amendment. The Nation also has a tradition of requiring

WOLFORD V. LOPEZ 39

concealed-carry permits, as Bruen recognized, id. at 38 &

n.9, and that tradition is an additional permissible restraint

on the carry of firearms. But just because a person has

qualified for a concealed-carry permit does not give that

person the right to carry at a banned location. Persons in

California or Hawaii need a permit to carry a concealed

weapon; that Plaintiffs have permits does not affect the

constitutional analysis as to whether those States may ban

the carry of firearms at specific locations like schools and

government buildings.

For their part, Defendants suggest that, if a place shares

some characteristic with one of the sensitive places

identified by the Supreme Court, then that place, too,

necessarily is a sensitive place—without much, or any, need

to show relevant historical analogues. That view also is

inconsistent with Bruen. For example, it is true that schools

contain children, who are a vulnerable population. But it

does not follow that all possible locations that serve children

or another vulnerable population are necessarily sensitive

places. Similarly, people gather at polling places, one of

Bruen’s sensitive places, but that fact does not mean that all

places where people gather are necessarily sensitive places.

The historical record, in addition to those facts, must inform

the analysis.

With those principles in mind, we turn to the specific

challenges here. We address the injunctions with respect to:

(1) parks and similar areas; (2) playgrounds and youth

centers; (3) bars and restaurants that serve alcohol;

(4) places of amusement; (5) parking areas connected to

sensitive places; (6) the default rule on private property;

(7) places of worship; (8) gatherings that require a permit;

(9) financial institutions; (10) hospitals and other medical

facilities; and (11) public transit.

40 WOLFORD V. LOPEZ

1. Parks and Similar Areas

Both state laws prohibit the carry of firearms in a “park.”

Haw. Rev. Stat. § 134-9.1(a)(9); Cal. Penal Code

§ 26230(a)(12). Plaintiffs in both cases brought facial

challenges to the relevant provision, and the district courts

in both cases concluded that Plaintiffs are likely to succeed

on their facial claims. We disagree.

Parks in modern form are outdoor gathering places

where people engage in social, political, and recreational

activities. On the present record, Plaintiffs are unlikely to

succeed in their assertion that the public green spaces that

existed in 1791 were akin to a modern park. In the Hawaii

case, the district court concluded that “parks around 1791

were not comparable to modern parks,” Wolford, 686 F.

Supp. 3d at 1064, a determination amply supported by the

record. The district court in the California cases did not

address that issue specifically, but significant evidence in the

record in that case, too, suggests that modern parks differ

from the green spaces that existed in 1791. Plaintiffs point

to Boston Common as an example of a “park” at the time of

the Founding, but the record in each case establishes that

Boston Common was used primarily for grazing animals and

for holding military exercises and was not akin to modern

parks. Nor does the record in either case contain evidence

of any other public green space akin in use and purpose to a

modern park. We agree with the Second Circuit, and at least

one district court, that such examples from the Founding

were not relevantly similar to parks in their modern form.

Antonyuk, 89 F.4th at 361–62; Kipke v. Moore, 695 F. Supp.

3d 638, 654 (D. Md. 2023).

As soon as green spaces began to take the shape of a

modern park, in the middle of the 19th century,

WOLFORD V. LOPEZ 41

municipalities and other governments imposed bans on

carrying firearms into the parks. Central Park in New York

City is perhaps the Nation’s first modern public park. In

1858—the year the park opened—New York prohibited the

carrying of firearms in Central Park. 2 Governments enacted

similar prohibitions as parks emerged across the Nation,

including at Prospect Park (New York City, 1866);

Fairmount Park (Pennsylvania, 1868); Golden Gate and

Buena Vista Parks (San Francisco, 1872); and Liberty Park

(Salt Lake City, 1888). Many municipalities, including

major cities, prohibited the carry of firearms at all parks:

Chicago (1872); South Park, Illinois (1875); Phoenixville,

Pennsylvania (1878); Saint Louis (1881); Danville, Illinois

(1883); Boston (1886); Reading, Pennsylvania (1887); St.

Paul, Minnesota (1888); Trenton, New Jersey (1890); Grand

Rapids, Michigan (1891); Springfield, Massachusetts

(1891); Lynn, Massachusetts (1892); Spokane, Washington

(1892); Pittsburg, Pennsylvania (1893); Wilmington,

Delaware (1893); Canton, Illinois (1895); Detroit, Michigan

(1895); Indianapolis, Indiana (1896); Kansas City, Missouri

(1898); New Haven, Connecticut (1898); and Boulder,

Colorado (1899). See Md. Shall Issue, Inc. v. Montgomery

County, 680 F. Supp. 3d 567, 585–86 (D. Md. July 6, 2023)

(summarizing similar evidence concerning parks), appeal

filed, No. 23-1719 (4th Cir. July 6, 2023); Kipke, 695 F.

Supp. 3d at 654–55 (same). Despite the widespread nature

of the laws, Plaintiffs have not pointed to—and we have not

found—any evidence that those laws were questioned as

unconstitutional.

2

Unless otherwise noted, the historical laws cited in this opinion are

found in the Excerpts of Record and Addenda filed by the parties.

42 WOLFORD V. LOPEZ

Because many laws prohibited carrying firearms in

parks, and the constitutionality of those laws was not in

dispute, we agree with the Second Circuit and several district

courts that the Nation’s historical tradition includes

regulating firearms in parks. Antonyuk, 89 F.4th at 355–63;

Kipke, 695 F. Supp. 3d at 654–55; Md. Shall Issue, 680 F.

Supp. 3d at 585–88. Contra Koons v. Platkin, 673 F. Supp.

3d 515, 639–42 (D.N.J. 2023), appeal filed, No. 23-2043 (3d

Cir. June 9, 2023); Springer v. Grisham, No. 1:23-cv-00781

KWR/LF, 2023 WL 8436312, at *5–*8 (D.N.M. Dec. 5,

2023), appeals filed, No. 23-2192 (10th Cir. Dec. 11, 2023)

and No. 23-2194 (10th Cir. Dec. 15, 2023).

Plaintiffs’ arguments to the contrary are unpersuasive. It

is irrelevant that many of the ordinances were local, and not

state, laws. Parks are fundamentally local, and it is

unsurprising—and, in our view, constitutionally

insignificant—that the first modern parks were regulated, as

parks are regulated today, primarily by municipalities rather

than by States.

Similarly, it makes little sense to focus on the population

of a particular city compared to the population of the nation

as a whole, and then to dismiss the significance of the law

because the resulting ratio is small. By contrast to

regulations that apply broadly, such as the concealed-carry

restrictions at issue in Bruen, the regulations here governed

very specific places. For example, when New York banned

firearms from Central Park in 1858, no other city (or town)

in New York had a modern park. It makes little sense to say

that only a small number of people in New York were subject

to a park regulation; 100 percent of parks were regulated.

Plaintiffs overlook that the Supreme Court designated

schools as sensitive places, even though less historical

WOLFORD V. LOPEZ 43

support justified that designation. The relevant historical

analogues were limited to a few local laws that post-dated

the ratification of the Second Amendment and governed only

a very small percentage of the national population. The

numerous historical laws prohibiting the carry of firearms in

parks share some of these characteristics and similarly

support designating parks as sensitive places.

We acknowledge that many of the laws cited above were

implemented in the years immediately following the

ratification of the Fourteenth Amendment. But we conclude

that those postbellum laws carry meaningful evidentiary

weight. The ordinances were fully consistent with pre-

ratification practice, they emerged shortly following

ratification, and Plaintiffs have not offered any evidence that

anyone anywhere viewed the laws as unconstitutional or

even questionably constitutional.

In sum, as soon as modern parks arose, municipalities

and states enacted laws prohibiting the carrying of firearms

into parks. Those laws both pre-dated and post-dated 1868,

and nothing in the record suggests that courts considered the

laws unconstitutional. The laws are analogous to other

historical laws establishing a national historical tradition of

banning firearms at sensitive places. Plaintiffs are unlikely

to succeed on their facial challenge as to parks.

Some Plaintiffs suggest that, even if the analysis above

permits the conclusion that regulating firearms at urban

parks falls within the Nation’s historical tradition, the

analysis does not justify the conclusion that States may ban

firearms at large, rural, and sparsely visited parks. Plaintiffs

then leap to the conclusion that, because some parks might

44 WOLFORD V. LOPEZ

fall outside the national historical tradition, 3 Plaintiffs

prevail on their facial claim.

Plaintiffs have the analysis with respect to a facial claim

precisely backward. To succeed on a facial challenge,

Plaintiffs must show either that the law is “unconstitutional

in every conceivable application” or that the law “seeks to

prohibit such a broad range of protected conduct that it is

unconstitutionally overbroad.” Foti v. City of Menlo Park,

146 F.3d 629, 635 (9th Cir. 1998) (citation omitted); see also

United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial

challenge to a legislative Act is, of course, the most difficult

challenge to mount successfully, since the challenger must

establish that no set of circumstances exists under which the

Act would be valid.”). Indeed, the Supreme Court recently

reiterated this principle in Rahimi, holding in the specific

context of a Second Amendment challenge that, “to prevail,

the Government need only demonstrate that [a challenged

law] is constitutional in some of its applications.” 144 S. Ct.

at 1898. As discussed above, because of the national

historical tradition of banning firearms at a wide array of

parks, the state laws here are constitutionally valid with

respect to many, if not all, of the parks in Hawaii and

California. Accordingly, Plaintiffs’ facial challenges fail.

We therefore hold that Plaintiffs are unlikely to succeed with

respect to the challenged state laws’ provisions concerning

parks. 4

3

We need not, and do not, reach whether the ban on firearms comports

with the Second Amendment with respect to each individual park in

Hawaii and California.

4

To the extent that Plaintiffs argue that the aggregate effect of Hawaii’s

law is to ban firearms across much of Maui County, such that the law

WOLFORD V. LOPEZ 45

Our conclusion with respect to parks applies equally to

other, related places. In the Hawaii case, the district court

began its analysis by agreeing with Defendant that public

beaches in Hawaii are akin to parks. The court “therefore

consider[ed] the issue of beaches and parks as operating

under the same analysis.” Wolford, 686 F. Supp. 3d at 1063.

The record supports the conclusion that modern-day beaches

in Hawaii, particularly in urban or resort areas, often

resemble modern-day parks far more than they resemble,

say, beaches at the Founding, and we do not read Plaintiffs’

brief as challenging that conclusion or as raising an

independent argument as to beaches. We therefore conclude

that, for the same reasons just discussed with respect to

parks, Plaintiffs are unlikely to succeed on their claim as to

beaches.

In the California cases, in addition to holding that

Plaintiffs are likely to succeed with respect to parks

specifically, the district court reached the same conclusion

as to 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.” May, 2023 WL 8946212,

at *12–*13. We see no reason why the analysis with respect

must be unconstitutional, we reject that argument for two main reasons.

First, because we affirm parts of the injunction, and because Plaintiffs

have raised only facial challenges to most aspects of the law at this

preliminary stage, the precise reach of Hawaii’s law is uncertain.

Second, because Plaintiffs may take their firearms onto the public streets

and sidewalks throughout Maui County (and elsewhere in Hawaii), as

well as into many commercial establishments and other locations, the

situation in this case is unlike the argument that Bruen rejected, which

would have meant, effectively, that firearms could be banned from the

entire island of Manhattan. Bruen, 597 U.S. at 31.

46 WOLFORD V. LOPEZ

to parks does not apply equally to those places as well, and

Plaintiffs have not argued on appeal that those places differ

meaningfully from parks. We therefore hold that Plaintiffs

are unlikely to succeed in their challenges with respect to

athletic areas, athletic facilities, and real property controlled

by the specified agencies.

2. Playgrounds and Youth Centers

In the California cases, the district court held that

Plaintiffs are likely to succeed in their challenge to

California Penal Code section 26230(a)(11), which prohibits

carry in “[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.”

Except for the district court in this case, every court has

rejected the argument that firearms must be allowed on

playgrounds. Antonyuk v. Hochul, 639 F. Supp. 3d 232, 324

(N.D.N.Y. 2022) (unchallenged on appeal), aff’d in part,

vacated in part, and remanded sub nom. Antonyuk v.

Chiumento, 89 F.4th 271, 293; Koons, 673 F. Supp. 3d at

639; Siegel v. Platkin, 653 F. Supp. 3d 136, 152 (D.N.J.

2023); We the Patriots USA, Inc. v. Grisham, No. 1:23-cv-

00773-DHU-LF, 2023 WL 6377288, at *3 (D.N.M. Sept. 29,

2023). Those other decisions are persuasive. Playgrounds

did not exist in modern form at the time of the Founding (or

even at Reconstruction); playgrounds are found primarily at

schools and parks; both categories of places qualify as

“sensitive places” that have a historical tradition of firearm

bans; by extension, there is a historical tradition of banning

firearms at playgrounds. Plaintiffs do not present any

separate argument concerning youth centers, which are akin

to schools. In sum, Plaintiffs are unlikely to succeed on

these claims.

WOLFORD V. LOPEZ 47

3. Bars and Restaurants that Serve Liquor

In the Hawaii case, the district court held that Plaintiffs

are likely to succeed in challenging Hawaii Revised Statutes

section 134-9.1(a)(4), which prohibits the carrying of

firearms into “[a]ny bar or restaurant serving alcohol or

intoxicating liquor.” Haw. Rev. Stat. § 134-9.1(a)(4). In the

California cases, the district court ruled that Plaintiffs are

likely to succeed in challenging California Penal Code

section 26230(a)(9), which prohibits carry in establishments

“where intoxicating liquor is sold for consumption on the

premises.” We disagree.

Establishments serving alcohol have existed since the

Founding. In determining whether a place that serves

alcohol qualifies as a “sensitive place,” we find relevant

three sets of historical regulations. First, in a long line of

regulations dating back to the colonial era, colonies, states,

and cities have regulated in ways reflecting their

understanding that firearms and intoxication are a dangerous

mix. Some cities—for example, Chicago in 1851 and St.

Paul, Minnesota, in 1858—prohibited retailers of liquor

from keeping gunpowder. Some states—Kansas in 1867,

Missouri in 1883, and Wisconsin in 1883—prohibited the

carry of firearms while intoxicated. Several colonial laws

separated the militia—which at the time included nearly all

men, Heller, 554 U.S. at 595–96—from liquor: A 1746 New

Jersey law prohibited the sale of liquor to members of the

militia while on duty; a 1756 Delaware law prohibited the

militia from meeting within half a mile from a tavern and

prohibited the sale of liquor at any militia meeting; and a

1756 Maryland law prohibited the sale of liquor within five

miles of a training exercise for the militia. That line of

regulations is not directly on point; the legislatures may have

had several purposes, and those laws did not prohibit

48 WOLFORD V. LOPEZ

firearms at all places serving alcohol. But the regulations

show that, from before the Founding and continuing

throughout the Nation’s history, governments have regulated

in order to mitigate the dangers of mixing alcohol and

firearms. We are not aware of any dispute as to the

constitutionality of the laws just listed or of any similar law.

The second line of regulations, which we discuss in more

detail elsewhere in this opinion, broadly prohibited the carry

of firearms at ballrooms and at social gatherings. For

example, New Orleans prohibited firearms at ballrooms in

1817, as did Texas in 1870. And other states, such as

Missouri in 1875, prohibited firearms at public assemblies

of persons. These laws, too, are not directly on point. Bars

and restaurants are not ballrooms; and although people

gather socially at restaurants, restaurants do not always

contain a gathering of people. But these laws show a well-

established tradition of prohibiting firearms at crowded

places, which included, at times, bars and restaurants. And,

as with the other laws, we are not aware of any question as

to the constitutionality of those laws.

Third, and perhaps most importantly, Defendants point

to several laws that are directly on point. In 1853, New

Mexico prohibited firearms at a “Ball or Fandango” 5 and at

any “room adjoining said ball where Liquors are sold.” In

1870, San Antonio, Texas, banned firearms at any “bar-

room” or “drinking saloon.” In 1879, New Orleans banned

firearms at any “public hall” or “tavern.” In 1890, Oklahoma

5

The term “fandango” as used in New Mexico at the time meant a social

gathering akin to a ball; an “assembl[y] where dancing and frolicking are

carried on.” See Fandango, Dictionary of American Regional English

(1991) (citing 19th century sources pertaining to New Mexico usage of

the term).

WOLFORD V. LOPEZ 49

banned firearms at “any place where intoxicating liquors are

sold.” No evidence in the record suggests that anyone

disputed the constitutionality of those laws.

When considered in conjunction with the other two lines

of regulations, we conclude that those laws establish that

bars and restaurants that sell alcohol are among the Nation’s

“sensitive places” where firearms may be prohibited. The

four on-point laws were enacted both before and soon after

the ratification of the Fourteenth Amendment and are similar

in all material respects to Hawaii’s and California’s modern

laws; the historical laws are consistent with and related to

the similar traditions of separating firearms and the

intoxicated and of separating firearms and crowds; and no

evidence suggests that any of the laws was viewed as

unconstitutional. It is true that the four on-point laws post-

dated the ratification of the Second Amendment, governed

only a small population, and were, to some extent, localized.

But the laws provide support analogous to that provided by

the few, local, post-ratification regulations that justified

designating schools as sensitive places. In sum, Hawaii’s

and California’s modern laws are “consistent with the

principles that underpin our regulatory tradition,” Rahimi,

144 S. Ct. at 1898, of prohibiting the carry of firearms at

sensitive places.

Our conclusion that places that serve alcohol fall within

the national historical tradition of prohibiting firearms at

sensitive places comports with the only other circuit decision

to have reached the issue. In Antonyuk, the Second Circuit

held that the plaintiffs were unlikely to succeed in a

challenge to New York’s law that prohibits firearms at

places with a liquor license. 89 F.4th at 365–69.

50 WOLFORD V. LOPEZ

For all of those reasons, we hold that Plaintiffs are

unlikely to succeed on their claims with respect to places that

serve alcohol.

4. Places of Amusement

In the California cases, the district court held that

Plaintiffs are likely to succeed in challenging California

Penal Code section 26230(a) with respect to places of

amusement: casinos, stadiums, amusement parks, zoos,

museums, and libraries. The parties and the district court did

not distinguish among the first three types of places, each of

which is a modern social gathering place for amusement.

We follow the parties’ lead in analyzing those places as a

group. We also include zoos, museums, and libraries, which

are places visited for both amusement and educational

purposes. As noted below, historical laws banning firearms

frequently classified those categories of places together. We

hold that Plaintiffs are unlikely to prevail on these claims.

Defendant has put forth persuasive evidence that casinos,

stadiums, amusement parks, zoos, museums, and libraries

did not exist in modern form at the Founding. Instead, those

venues are modern forms of Founding-era places where

balls, fandangos, and other social gatherings for amusement

occurred. Accordingly, we look to the historical record for

analogous regulations of those places.

Convincing evidence supports the conclusion that

prohibitions on firearms at places of amusement fall within

the national historical tradition of prohibiting firearms at

sensitive places. Both before and shortly following the

ratification of the Fourteenth Amendment, cities, states, and

territories prohibited firearms at a wide range of places for

social gathering and amusement that are analogous to

modern casinos, stadiums, amusement parks, zoos,

WOLFORD V. LOPEZ 51

museums, and libraries. In 1817, New Orleans prohibited

firearms at any public ballroom. In 1853, New Mexico

prohibited firearms at any ball or fandango. In 1869,

Tennessee prohibited firearms at any fair or race course. In

1870, Georgia prohibited firearms at some specified places

and “any other public gathering.” That same year, Texas

prohibited firearms at any ballroom, “social party,” or “other

social gathering” and at any “place where persons are

assembled for educational, literary or scientific purposes.”

The next year, in 1871, Texas amended its law to ban

firearms also specifically at “any circus, show, or public

exhibition of any kind.” In 1875, Missouri banned firearms

at any gathering for educational, literary, or social purposes,

including any non-military public assembly. 6 In 1879,

reflecting the evolution of places of amusement occurring in

the Nation, New Orleans expanded its list of places where

firearms are prohibited to include any “place for shows or

exhibitions,” as well as any “house or other place of public

entertainment or amusement.” In 1889, Arizona prohibited

firearms at any ballroom, social party, or social gathering;

any other place of amusement, including “any circus, show

or public exhibition”; and any place where people are

gathered for educational or scientific purposes. In 1890,

Oklahoma prohibited firearms at the same general list of

places: any ballroom, social party, or social gathering; other

places of amusement, including “any circus, show, or public

exhibition of any kind”; and any place where people are

6

In 1874, Missouri had banned only concealed carry at those locations,

and the Missouri Supreme Court upheld the constitutionality of that

statute. Missouri amended the statute the next year to prohibit all forms

of carry at those locations.

52 WOLFORD V. LOPEZ

gathered for educational or scientific purposes. In 1903,

Montana prohibited firearms at the same list of places.

The evidence suggests that courts were in agreement that

those laws were constitutional. Indeed, state court decisions

at the time rejected arguments that the provisions conflicted

with the Second Amendment. See, e.g., Hill v. State, 53 Ga.

472, 476 (1874) (rejecting a Second Amendment challenge

and opining that “the bearing [at a concert] of arms of any

sort, is an eye-sore to good citizens, offensive to peaceable

people, an indication of a want of a proper respect for the

majesty of the laws, and a marked breach of good manners”);

English v. State, 35 Tex. 473, 478–79 (1871) (holding that it

was “little short of ridiculous, that any one should claim the

right to carry upon his person any of the mischievous devices

inhibited by the statute, into a peaceable public assembly, as,

for instance into . . . a ball room . . . or any other place where

ladies and gentlemen are congregated together”); Andrews

v. State, 50 Tenn. 165, 182 (1871) (holding, in the context

of a Second Amendment challenge, that “a man may well be

prohibited from carrying his arms to . . . [a] public

assemblage”). State courts also regularly upheld convictions

for violating the statutes without even questioning the

constitutionality of the laws. See, e.g., Wynne v. State, 51

S.E. 636, 637 (Ga. 1905) (“carrying about his person a

shotgun to a public gathering”); State v. Pigg, 85 Mo. App.

399, 402 (1900) (“going into the dwelling house of Josiah

Jones, where there was a social gathering, having about his

person a deadly weapon”); Maupin v. State, 17 S.W. 1038,

1039 (Tenn. 1890) (carrying a pocket-pistol at a grist mill

that was “a public place,–a place to which customers were

constantly invited and daily expected to go”); Alexander v.

State, 11 S.W. 628, 629 (Tex. Ct. App. 1889) (“the defendant

went into a place where persons were assembled for

WOLFORD V. LOPEZ 53

amusement, carrying about his person a pistol”); Owens v.

State, 3 Tex. App. 404, 405 (1878) (“did unlawfully and

willfully go into a ball-room with a pistol about his person”).

The extensive set of historical regulations banning

firearms at places of amusement and social gathering,

consistently upheld and accepted as constitutional, justifies

the conclusion that modern-day places of amusement such

as casinos, stadiums, amusement parks, zoos, museums, and

libraries fall within the national historical tradition of

prohibiting firearms at sensitive places. The regulations date

from before and shortly after the ratification of the

Fourteenth Amendment, and the laws governed in cities,

states, and territories. Those laws provide more evidence of

a tradition of prohibiting firearms in places of amusement

than the few, local regulations that evinced a tradition of

prohibiting firearms in schools.

For two of the places of amusement—zoos and

libraries—we note that the historical practice of banning

firearms at these locations extends even further back. As

other courts have noted, many of the first modern zoos were

located in parks, and some of those parks banned firearms.

Koons, 673 F. Supp. 3d at 637. “Those parks, and in effect

zoos, did ban firearms.” Id. We agree with the Second

Circuit: “That zoos were unproblematically covered by the

firearm regulations of their surrounding parks tends to show

that our forebearers took no Second Amendment issue with

the regulation of firearms at zoos.” Antonyuk, 89 F.4th at

364. Similar reasoning applies to libraries. Many libraries

are housed in schools and courthouses, for example, and

regulation of firearms in those places is plainly constitutional

and within the Nation’s historical tradition.

54 WOLFORD V. LOPEZ

Our holding that places of amusement likely fall within

the historical tradition of regulating sensitive places

comports with the Second Circuit’s decision concerning

similar provisions in New York’s law. In Antonyuk, the

Second Circuit held that the plaintiffs were unlikely to

succeed on a challenge to New York’s ban on firearms at

theaters and zoos. 89 F.4th at 363–64, 373–76. The court

looked to many of the same laws that we listed above and

concluded that a ban on firearms at theaters was justified as

part of a tradition of banning firearms at “discrete, densely

crowded physical spaces wherein people assemble for

amusement.” Id. at 375; see also Kipke, 695 F. Supp. 3d at

652 (holding that Maryland’s “prohibition on carrying in

museums is supported by a representative number of

historical statutes that demonstrate a historical tradition of

firearm regulation in places of gathering for education,

literary, or scientific purposes”); id. at *15 (holding that

Maryland’s “regulations restricting firearms in stadiums,

racetracks, amusement parks, and casinos are analogous to

historical statutes banning [firearms] in gathering places for

entertainment”); Md. Shall Issue, 680 F. Supp. 3d at 588

(holding that “a representative number of historical

statutes . . . demonstrate a historical tradition of firearm

regulation in places of gathering for literary or educational

purposes, including public libraries”). But see Koons, 673

F. Supp. 3d at 646–47 (holding that the plaintiffs were likely

to succeed on a challenge to New Jersey’s ban on firearms

at entertainment facilities); Siegel, 653 F. Supp. 3d at 156–

57 (same district judge as in Koons reaching the same

conclusion with respect to casinos).

In sum, we hold that Plaintiffs are unlikely to prevail in

challenging California’s law with respect to casinos,

stadiums, amusement parks, zoos, museums, and libraries.

WOLFORD V. LOPEZ 55

5. Parking Areas Connected to Sensitive Places

The topic of parking areas connected to sensitive places

arises in both the California and Hawaii cases, but the issues

on appeal are distinct, so we address them separately.

a. California Cases

California Penal Code section 26230(a) prohibits

concealed carry in many parking areas associated with the

sensitive places listed in that section. See, e.g., Cal. Penal

Code § 26230(a)(20) (prohibiting carry at any “building, real

property, or parking area under the control of a zoo or

museum”); id. § 26230(a)(24) (prohibiting carry at any

“parking area under control of a law enforcement agency”).

The district court held that Plaintiffs are likely to succeed in

challenging the entire California Penal Code section 26230

as it pertains to all parking areas listed in that section. May,

2023 WL 8946212, at *16–*17. The preliminary injunction

therefore allows concealed carry in the parking areas at most

listed places, even those not challenged by Plaintiffs. In

other words, in addition to parking areas at most of the

sensitive places discussed in this opinion, the injunction

applies to parking areas at preschools, childcare facilities,

government buildings, courthouses, jails, prisons, juvenile

detention centers, schools, airports, nuclear power plants,

and police stations. Cal. Penal Code § 26230(a)(2)–(6),

(14), (18), (21), (24). We reject the district court’s sweeping

conclusion, and we hold that Plaintiffs are unlikely to

succeed on this claim.

Some parking areas—such as a parking garage located

in the basement of a courthouse or jail—are likely so

intertwined with the main structure as to be considered part

of the sensitive area itself. Other parking areas—such as a

student-only parking area at a school or a fenced, gated,

56 WOLFORD V. LOPEZ

parking lot at a jail or nuclear power plant—likely fall within

a reasonable buffer zone such that firearms may be

prohibited there. We agree with those courts that have held

that, depending on the factual circumstances, firearms may

be prohibited at some parking areas connected to sensitive

places. See, e.g., Bonidy v. U.S. Postal Serv., 790 F.3d

1121, 1125 (10th Cir. 2015) (holding, “on the facts of this

case, that the parking lot should be considered as a single

unit with the postal building itself to which it is attached and

which it exclusively serves”); United States v. Dorosan, 350

F. App’x 874, 875 (5th Cir. 2009) (per curiam)

(unpublished) (“Given this usage of the parking lot by the

Postal Service as a place of regular government business, it

falls under the ‘sensitive places’ exception recognized by

Heller.”); United States v. Allam, 677 F. Supp. 3d 545, 578

(E.D. Tex. 2023) (“[T]his Nation is no stranger to

prohibiting individuals from possessing or carrying firearms,

or other weapons for that matter, within a certain proximity

of sensitive places.”); Md. Shall Issue, 680 F. Supp. 3d at

589 (finding “numerous examples of laws prohibiting

firearms in buffer zones of a certain distance around a

‘sensitive place’ or other location at which the government

could prohibit the carrying of firearms”); United States v.

Walter, No. 3:20-cr-0039, 2023 WL 3020321, at *7 (D.V.I.

Apr. 20, 2023) (“Not only is there historical evidence of

regulation on firearms in sensitive places, but there is also

evidence of laws creating ‘buffer zones’ around those places

as well.”). Thus, to the extent that Plaintiffs suggest that

firearms may never be prohibited in parking areas, no matter

the circumstances, we reject that extreme position.

Plaintiffs primarily argue that some parking areas are

insufficiently connected to a sensitive place such that the

parking area is not reasonably covered by the ban on

WOLFORD V. LOPEZ 57

firearms at the sensitive place. For example, a parking area

that is shared with ordinary businesses or a parking area that

is geographically remote from the sensitive place might fall

outside the Nation’s tradition of regulating sensitive places

and the corresponding buffer zones. Plaintiffs contend that,

because it would be unconstitutional to ban concealed carry

in some parking areas, California’s ban must fail on its face.

That mode of analysis is contrary to the proper analysis of a

facial challenge. Rahimi, 144 S. Ct. at 1898. We easily

conclude that the ban on firearms at some parking lots—

parking garages under government buildings, fenced parking

areas adjacent to nuclear power plants, student-only parking

areas at schools, and so on—are permissible. This is

particularly true because, with few exceptions, persons may

store their firearms securely in their vehicles in the parking

areas of a location where firearms are otherwise prohibited.

Cal. Penal Code § 26230(c)(2). Because the law’s reach is

constitutional in many legitimate instances, the facial

challenge must fail. Rahimi, 144 S. Ct. at 1898; Foti, 146

F.3d at 635. Plaintiffs could have asked, as the Plaintiffs in

the Hawaii case did, for more tailored relief with respect to

parking areas, but they did not.

In the California cases, we hold that Plaintiffs are

unlikely to prevail on their facial challenge with respect to

parking areas at all sensitive places.

b. Hawaii Case

By contrast to the injunction entered in the California

cases, the district court in the Hawaii case enjoined

Defendant solely from enforcing the law in parking areas

shared by governmental buildings and non-governmental

buildings: “parking areas owned, leased, or used by the State

or a county which share the parking area with non-

58 WOLFORD V. LOPEZ

governmental entities, are not reserved for State or county

employees, or do not exclusively serve the State or county

building.” 7 Wolford, 686 F. Supp. 3d at 1076–77. Neither

party appears to dispute that persons may carry firearms onto

that subset of parking areas, but the parties disagree as to

why. In Defendant’s view, the state law prohibits persons

from bringing firearms only into areas used exclusively by

the State. Plaintiffs want to bring their firearms only onto

shared lots, not exclusive lots. Defendant thus urges us to

conclude that Plaintiffs lack standing to challenge the law

with respect to shared lots. In Plaintiffs’ view, the law

appears to proscribe their desired conduct, so they have

standing to seek injunctive relief. And the injunction is

proper because they prevail on the merits of the Second

Amendment challenge with respect to the law’s apparent

prohibition on carrying firearms onto shared lots. On appeal,

Defendant has not challenged meaningfully the Second

Amendment analysis as to shared parking lots; we hold that,

7

The district court also enjoined the enforcement of the ban in parking

areas adjacent to parks, beaches, bars, restaurants that serve alcohol, and

financial institutions. As discussed earlier, we hold that Plaintiffs are

unlikely to succeed on their claim as to the first four of those places:

parks, beaches, bars, and restaurants that serve alcohol. Plaintiffs do not

argue that they are likely to succeed independently as to the parking areas

adjacent to those places. For the reasons that we just discussed with

respect to the parking areas at issue in the California cases, we conclude

that Plaintiffs in the Hawaii case are unlikely to succeed on their

challenge to the parking areas adjacent to parks, beaches, bars, and

restaurants that serve alcohol.

Similarly, as we discuss later, we hold that Plaintiffs are likely to

succeed on their challenge as to financial institutions. The ban on

firearms at the adjacent parking areas is justified only if financial

institutions qualify as a “sensitive place.” We accordingly hold that

Plaintiffs are likely to succeed on their challenge as to parking areas

adjacent to financial institutions.

WOLFORD V. LOPEZ 59

at least for the purpose of the preliminary injunction,

Defendant has forfeited any argument as to the merits.

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

Because standing is a jurisdictional requirement, though,

we must address the issue. Friery v. L.A. Unified Sch. Dist.,

448 F.3d 1146, 1148 (9th Cir. 2006). Plaintiffs do not allege

an actual injury; they allege an imminent future injury—

criminal prosecution for taking their firearms onto shared

lots. For that reason, Plaintiffs have standing only if:

“(1) [they] ha[ve] alleged ‘an intention to engage in a course

of conduct arguably affected with a constitutional interest;’

(2) but the conduct is ‘proscribed by a statute;’ and (3) ‘there

exists a credible threat of prosecution thereunder.’” Isaacson

v. Mayes, 84 F.4th 1089, 1098 (9th Cir. 2023) (quoting

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159

(2014)) (some internal quotation marks omitted). As several

courts have remarked in similar circumstances, the situation

is peculiar in that “the would-be sanctioned party . . . must

argue that the law does apply, while the would-be enforcing

party, the Attorney General, could defeat standing by

conceding that the law does not apply.” Peace Ranch, LLC

v. Bonta, 93 F.4th 482, 489 (9th Cir. 2024); see FEC v. Cruz,

596 U.S. 289, 299–300 (2022) (describing the reversed roles

in similar terms). We follow the approach taken in Peace

Ranch and, as we did there, conclude that Plaintiffs have

standing. 93 F.4th at 489; see also Cruz, 596 U.S. at 301–02

(holding that the plaintiffs had standing in similar

circumstances); Antonyuk, 89 F.4th at 333–36 (concluding

that the plaintiffs had standing to challenge New York’s

sensitive-places law, describing the Supreme Court’s

analysis and holding in Babbitt v. United Farm Workers

National Union, 442 U.S. 289 (1979), and concluding that

60 WOLFORD V. LOPEZ

the inquiry in this context sets a “low” bar and requires a

“quite forgiving” approach).

All three requirements are met here. First, Plaintiffs

intend to take their firearms onto shared parking lots, an

action that is affected by a constitutional interest. Second,

Plaintiffs have alleged that the state law arguably proscribes

their proposed conduct. Peace Ranch, 93 F.4th at 489 (citing

Driehaus, 573 U.S. at 162). The broad text of the law

prohibits the carrying of firearms onto “[a]ny building or

office owned, leased, or used by the State or a county, and

adjacent grounds and parking areas.” Haw. Rev. Stat. § 134-

9.1(a)(1) (emphasis added). Parking areas adjacent, that is,

next to, government buildings fall, without qualification,

within the text of the law. Defendant suggests that the

Hawaii legislature in fact intended a narrower meaning of

“adjacent” that encompasses only those areas both “next to”

and “exclusively serving” the sensitive place. Defendant

may be right that the legislature intended a specialized use

of the word, but Plaintiffs’ interpretation is a reasonable one,

so the statute “arguably” proscribes their conduct. Peace

Ranch, 93 F.4th at 489. Finally, given Plaintiffs’ strong

textual argument and the variety and number of shared

parking areas in the state of Hawaii that might lead to a

prosecution, we conclude that Plaintiffs have alleged a

sufficiently credible threat of prosecution.

Accordingly, we agree with the district court that

Plaintiffs have standing. Because Defendant has forfeited

any argument on the merits challenging the injunction as to

shared parking lots, we also agree with the district court that

Plaintiffs are likely to succeed on the merits with respect to

shared parking lots. Notably, the injunction has no effect,

under Defendant’s interpretation of state law, on any parking

area covered by the state law. On remand, Defendant is free

WOLFORD V. LOPEZ 61

to raise any relevant argument with respect to this topic. If,

for example, Defendant disavows enforcement of the law in

the relevant respect, Plaintiffs’ challenge in this regard may

become moot. See id. at 490 (holding that the plaintiffs’

standing “often rises or falls with the enforcing authority’s

willingness to disavow enforcement”).

6. Private-Property Default Rule

In both the Hawaii case and the California cases, the

district courts held that Plaintiffs are likely to succeed on

their challenges to the respective bans on the carry of

firearms on private property held open to the public unless

the owner or operator consents. Haw. Rev. Stat § 134-

9.5(a); Cal. Penal Code § 26230(a)(26). 8 Although the state

statutes are similar, they differ in one key respect. Hawaii’s

law allows a property owner to consent orally, in writing, or

by posting appropriate signage on site. Haw. Rev. Stat.

§ 134-9.5(b). California’s law, by contrast, allows a

property owner to consent only by “clearly and

conspicuously post[ing] a sign at the entrance of the building

or on the premises indicating that licenseholders are

permitted to carry firearms on the property.” Cal. Penal

Code § 26230(a)(26).

8

California’s law applies only to “privately owned commercial

properties open to the public.” Cal. Penal Code § 26230(a)(26).

Hawaii’s law applies more broadly, to nearly all private property, Haw

Rev. Stat. § 134-9.5(a), but the district court preliminarily enjoined

enforcement of that provision only with respect to private property “open

to the public.” Wolford, 686 F. Supp. 3d at 1077. Plaintiffs did not file

a cross-appeal challenging the district court’s holding that the Second

Amendment does not apply to private property not open to the public.

We therefore address only whether Hawaii’s law comports with the

Second Amendment with respect to private property that is open to the

public.

62 WOLFORD V. LOPEZ

As an initial matter, we hold that Plaintiffs have

standing. Defendant in the Hawaii case contends that

Plaintiffs lack standing to challenge the private-property rule

because Hawaii’s law does not prevent Plaintiffs from

carrying firearms on any particular property; a property

owner’s choice to withhold consent prevents Plaintiffs from

doing so. We agree with the courts that have unanimously

and persuasively rejected this argument. Antonyuk, 89 F.4th

at 379–80; Kipke, 695 F. Supp. 3d at 656–58; Koons, 673 F.

Supp. 3d at 598; Frey v. Nigrelli, 661 F. Supp. 3d 176, 191–

92 (S.D.N.Y. 2023), appeal filed sub nom. Frey v. Bruen,

No. 23-365 (2d Cir. Mar. 16, 2023). Plaintiffs’ injury does

not depend on the decisions of property owners. Plaintiffs

allege that they intend to continue carrying firearms on

private property, and the law requires that they seek

permission before doing so, placing a new burden on their

right to carry. If they carry firearms on private property

without first seeking consent, as they have alleged, they will

violate the law and will face a threat of criminal prosecution,

whether the owner decides to grant or withhold consent.

Moreover, Plaintiffs plausibly allege that many property

owners will not post signs of any sort or give specialized

permission, regardless of the default rule. Indeed, that group

of owners appears to be the impetus for Hawaii to enact the

law; if that group were small or did not exist, Hawaii’s law

would accomplish little or nothing. On a practical level,

then, Plaintiffs plausibly attest that they lawfully visit many

places with firearms but that, under Hawaii’s new law, they

will not be able to visit those places lawfully with firearms.

WOLFORD V. LOPEZ 63

They are thus injured by the law, and a court can redress the

injury. Plaintiffs have standing. 9

For similar reasons, we conclude that the conduct

proscribed by the state laws falls within the text of the

Second Amendment at the first step of the Bruen analysis.

Plaintiffs allege that, but for the challenged laws, they would

be able to carry firearms onto many private properties that

are open to the public. The Supreme Court held that the

Second Amendment’s text covers carrying firearms publicly

outside the home, Bruen, 597 U.S. at 24, so carrying onto

properties held open to the public is conduct that likely falls

within the plain text of the Second Amendment.

Accordingly, courts unanimously have concluded that a law

changing the default rule on private property falls within the

text of the Second Amendment. Antonyuk, 89 F.4th at 379–

84; Kipke, 695 F. Supp. 3d at 658 n.9; Koons, 673 F. Supp.

3d at 607–15.

We are unpersuaded that the Second Amendment is

limited strictly to property that is publicly owned. The text

of the Second Amendment does not limit the right to bear

arms to publicly owned spaces. Bruen’s repeated mention

of “public carry” or “carry in public” appears to encompass

the right to carry firearms on private property that is open to

the public. See, e.g., Bruen, 597 U.S. at 33 (quoting a party’s

brief concerning “areas ‘frequented by the general public’”);

id. at 56 (discussing restrictions on “public carry in locations

frequented by the general community”). We agree with the

Second Circuit and with the district court’s thoughtful

9

Our holding that Plaintiffs have standing also applies to other aspects

of this case, such as Plaintiffs’ standing to challenge the provisions

prohibiting the carry of firearms in banks and other commercial

establishments open to the public.

64 WOLFORD V. LOPEZ

analysis in the Hawaii case that the Second Amendment

encompasses the right to bear arms not only in publicly

owned spaces, but also on private property that is generally

open to the public. Wolford, 686 F. Supp. 3d at 1057–59;

Antonyuk, 89 F.4th at 383–84; see also Antonyuk v. Hochul,

639 F. Supp. 3d at 316–17 (concluding that the right extends

to private property open to the public). No court appears to

have embraced the narrow view that the Second Amendment

applies only on public property. Plaintiffs are likely to

succeed on the argument that the Second Amendment

encompasses a right to bear arms on private property held

open to the public.

Equally clear, however, is the right of a private property

owner to exclude others, including those bearing arms. See,

e.g., Cedar Point Nursery v. Hassid, 594 U.S. 139, 150

(2021) (“[T]he right to exclude is ‘universally held to be a

fundamental element of the property right,’ and is ‘one of the

most essential sticks in the bundle of rights that are

commonly characterized as property.’” (quoting Kaiser

Aetna v. United States, 444 U.S. 164, 176, 179–180

(1979))). Nothing in the text of the Second Amendment or

otherwise suggests that a private property owner—even

owners who open their private property to the public—must

allow persons who bear arms to enter. See, e.g., Siegel, 653

F. Supp. 3d at 158 (“[T]he pre-existing right codified in the

Second Amendment does not include protection for a right

to carry a firearm in a place against the owner’s wishes.”

(ellipsis and emphasis omitted)); Kipke, 695 F. Supp. 3d at

658 n.9 (“Again, private property owners can freely exclude

firearms . . . .”). With that understanding, we hold that

Plaintiffs are likely to succeed at the first step of the Bruen

analysis, and we turn to whether Defendants have shown a

relevant national historical tradition.

WOLFORD V. LOPEZ 65

We categorize the pertinent colonial and state laws into

two sets. The first set of laws prohibited the carry of firearms

onto subsets of private land, such as plantations or enclosed

lands. In 1721, Pennsylvania prohibited “carry[ing] any gun

or hunt[ing] on the improved or inclosed lands of any

plantation other than his own, unless he have license or

permission from the owner of such lands or plantation.” In

1722, New Jersey prohibited persons from “carry[ing] any

Gun, or Hunt[ing] on the Improved or Inclosed Lands in any

Plantation, . . . unless he have License or Permission from

the owner of such Lands or Plantation.” In 1763, New York

criminalized “carry[ing], shoot[ing], or discharg[ing] any

Musket, Fowling-Piece, or other Fire-Arm whatsoever, into,

upon, or through any Orchard, Garden, Corn-Field, or other

inclosed Land whatsoever . . . without Licence in Writing

first had and obtained for that Purpose from such Owner,

Proprietor, or Possessor [of the land].” Finally, in 1893,

Oregon provided that it is unlawful for a person “being

armed with a gun, pistol, or other firearm, to go or trespass

upon any enclosed premises or lands without the consent of

the owner or possessor thereof.”

The second set of laws contained broader prohibitions,

banning the carrying of firearms onto any private property

without the owner’s consent. In 1771, New Jersey amended

its laws to prohibit the carrying of firearms on any lands

owned by another: “to carry any Gun on any Lands not his

own, and for which the Owner pays Taxes, or is in his lawful

Possession, unless he hath License or Permission in Writing

from the Owner or Owners or legal Possessor.” Similarly,

in 1865, Louisiana prohibited “carry[ing] fire-arms on the

premises or plantation of any citizen, without the consent of

the owner or proprietor.”

66 WOLFORD V. LOPEZ

The record—in these cases or in any other case, so far as

we can tell—contains no evidence whatsoever that these

laws were viewed as controversial or constitutionally

questionable. Instead, they were viewed as falling well

within the colony’s or the State’s ordinary police power to

regulate the default rules concerning private property.

We acknowledge that the first set of laws likely was

limited to only a subset of private property; those laws likely

did not apply to property that was generally open to the

public. 10 Similarly, the primary aim of some of those laws

was to prevent poaching. But those limitations did not apply

to the second set of laws. New Jersey’s 1771 law applied to

all private property, and the purpose of that specific

provision—found in Section 1 of the Act—was “to prevent

trespassing with Guns.” The New Jersey law also sought to

preserve game, but the provisions effecting that aim were

found in a separate provision—Section 2 of the Act. The

1865 Louisiana law, too, applied to all private property,

encompassing any citizen’s “premises or plantation.” See,

e.g., Bailey v. Quick, 28 La. Ann. 432, 433 (1876)

(describing “a room at No. 90 Baronne street” as the “leased

premises”); Westermeier v. Street, 21 La. Ann. 714, 714–15

(1869) (discussing the “the delivery of the premises to the

lessee [who was a business owner] in a leaky and otherwise

untenantable condition”); Reynolds v. Swain, 13 La. 193,

194 (1839) (referring to a brick building operated by

apothecaries as the “leased premises”). And the law made

10

Defendant in the Hawaii case has argued that “inclosed” lands were

not necessarily those lands physically enclosed by a fence or waterway;

instead, they encompassed any property where, for example, the owner

paid taxes. We need not consider that argument because, for the reasons

described in text, we hold that Plaintiffs in the Hawaii case are unlikely

to prevail.

WOLFORD V. LOPEZ 67

no mention of hunting or game; the sole stated purpose of

the law was to “prohibit the carrying of fire-arms on

premises or plantations of any citizen without the consent of

the owner.”

We conclude, then, that the Nation has an established

tradition of arranging the default rules that apply specifically

to the carrying of firearms onto private property.

Collectively, the laws establish that colonies and States

freely arranged the relevant default rules. And the 1771 New

Jersey law and the 1865 Louisiana law are historical “dead

ringers”: they simply prohibited the carry of firearms on

private property without consent. Those laws—enacted

shortly before the ratification of the Second Amendment and

very shortly before the ratification of the Fourteenth

Amendment—were uncontroversial. They are easily

analogous to the “sensitive places” laws mentioned by the

Supreme Court.

Hawaii’s modern law falls well within the historical

tradition. The law prohibits the carrying of firearms onto

private property unless the owner has posted signs,

otherwise has given written consent, or has given oral

consent. We therefore conclude that Plaintiffs in the Hawaii

case are unlikely to succeed on the merits.

But we conclude that California’s law falls outside the

historical tradition. As noted at the outset of this section,

California prohibits the carry of firearms on private property

only if the owner has consented in one specific way: posting

signs of a particular size. We find no historical support for

that stringent limitation. Although two of the laws

mentioned above required a person to obtain consent in

writing, all of the other laws allowed a person to obtain

consent in any manner. None of the laws forbade a person

68 WOLFORD V. LOPEZ

from obtaining permission only by convincing the owner to

post signs of a specific size. Nor do modern circumstances

appear to justify California’s imposing a much more

stringent consent requirement; ordinary signs existed in

1791, in 1868, and today.

We recognize that a historical twin is not required.

Rahimi, 144 S. Ct. at 1898. But California’s law differs

substantially from the historical laws. Under the historical

laws, a property owner could give on-the-spot, granular

permission to a particular person or persons for a specified

time: “Sure, you may carry your musket on my property, but

only this week and only one musket.” Under California’s

law, by contrast, permission may not be given on the spot: a

property owner must post a public sign of a specific size and

with other attributes to be defined by a state agency. Nor

may permission be granular: the sign must allow all

licenseholders to carry and must allow them to carry

whatever firearms are permissible under state law. Nor may

permission be given specific to a particular timeframe,

unless the owner laboriously posts and unposts the required

sign. For all of those reasons, we conclude that Plaintiffs in

the California cases are likely to succeed on the merits.

We acknowledge that our primary holding—that a

national tradition likely exists of prohibiting the carrying of

firearms on private property without the owner’s oral or

written consent—differs from the decisions by the Second

Circuit and some district courts. Antonyuk, 89 F.4th at 384–

86; Kipke, 695 F. Supp. 3d at 658–59; Koons, 673 F. Supp.

3d at 615–23. In reaching our limited conclusion, we

carefully have examined the record in the Hawaii case and,

to the extent that our decision conflicts with the analysis by

other courts addressing the likelihood of success in those

WOLFORD V. LOPEZ 69

cases, we respectfully disagree with their preliminary, pre-

Rahimi analyses.

7. Places of Worship

In the California cases, the district court held that

Plaintiffs are likely to succeed in challenging California

Penal Code section 26230(a)(22), which prohibits the carry

of firearms at places of worship. Although the issue is a

close one, we agree with the district court’s conclusion in

this regard.

Places of worship indisputably have been around since

the Founding, and much earlier, of course. We must

examine whether the Nation has a tradition of banning

firearms in places of worship, comparable to the regulations

banning firearms at schools, polling places, and the like.

Bruen, 597 U.S. at 30. We conclude that Plaintiffs are likely

to succeed on their challenge.

From the colonial times through the ratification of the

Second Amendment and continuing through the ratification

of the Fourteenth Amendment, Defendant has not pointed to

a single regulation banning firearms at places of worship or

at any analogous place. The lack of any regulation is

especially probative given the prevalence of places of

worship during that period. We acknowledge that, shortly

after ratification of the Fourteenth Amendment, several

States and two territories prohibited firearms at places of

worship specifically. In particular, in 1870, Georgia

prohibited firearms at any “place of public worship”; that

same year, Texas prohibited firearms at any “church or

religious assembly”; in 1875 Missouri banned firearms at

any “church or place where people have assembled for

religious worship”; in 1878 Virginia banned guns at “any

place of worship while a meeting for religious purposes is

70 WOLFORD V. LOPEZ

being held at such place”; in 1889 Arizona banned firearms

at “any church or religious assembly”; and in 1890

Oklahoma enacted the same prohibition. 11

In our view, though, those regulations do not evince a

historical tradition similar to the tradition of regulating

firearms at sensitive places. For polling places and other

locations, the Supreme Court noted the existence of at least

one colonial regulation on point. Bruen, 597 U.S. at 30. And

the bans on firearms at schools began in 1824—a few

decades after the ratification of the Second Amendment and

nearly a half-century before the ratification of the Fourteenth

Amendment.

Plaintiffs also point out that some colonial regulations

required certain people to bring firearms to church services.

We conclude that those regulations have limited importance

in the Bruen analysis here because they differ from

California’s law in “how” and “why” they burden the right

to bear arms. 597 U.S. at 29. Those laws clearly addressed

a different perceived societal problem—protection of the

colony from raids by Native Americans and from slave

revolts. California’s law is aimed at guaranteeing a

congregant’s ability to worship safely and without concern

that firearms are present and may cause harm. But we

nonetheless conclude that Plaintiffs are likely to succeed

because of the lack of any prohibition on the carry of

firearms in places of worship until after the ratification of the

Fourteenth Amendment.

11

An English law from 1403 banned weapons at “Merchant Towns

Churches.” But that very old regulation, which was not brought to the

colonies, carries little weight. Bruen, 597 U.S. at 40–41.

WOLFORD V. LOPEZ 71

District courts have divided on this question. Compare

Spencer v. Nigrelli, 648 F. Supp. 3d 451, 467–68 (W.D.N.Y.

2022) (holding that the plaintiffs were likely to succeed on a

Second Amendment challenge to a ban on firearms at places

of worship because of the insufficiency of the historical laws

offered by the defendant), affirmed on other grounds by

Antonyuk v. Chiumento, 89 F.4th 271; Hardaway v.

Nigrelli, 639 F. Supp. 3d 422, 439–43 (W.D.N.Y. 2022)

(same), affirmed in part, vacated in part, and remanded by

89 F.4th 271; and Antonyuk v. Hochul, 639 F. Supp. 3d at

319–22 (same); with Goldstein, 680 F. Supp. 3d at 389–97

(reaching the opposite conclusion); Md. Shall Issue, 680 F.

Supp. 3d at 584–85 (same). For its part, the Second Circuit

declined to reach the issue. Antonyuk, 89 F.4th at 346. The

court vacated the injunctions in two cases because of

mootness and the court affirmed the injunction in one case

as to New York’s ban on the carry of firearms at places of

worship—but on First Amendment grounds, declining to

reach the Second Amendment question. Antonyuk, 89 F.4th

at 345–52.

In sum, places of worship have been prevalent

throughout our Nation’s history, but no colony, state, or

territory banned firearms at places of worship until after the

ratification of the Fourteenth Amendment. At this

preliminary stage, we conclude that Plaintiffs are likely to

succeed on their Second Amendment challenge with respect

to California Penal Code section 26230(a)(22).

We emphasize two points. First, 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. The preliminary injunction means

only that the State cannot ban firearms from places of

72 WOLFORD V. LOPEZ

worship where the owner or operator wishes to allow

firearms at the place of worship. Second, our ruling in this

regard is merely a prediction of Plaintiffs’ likelihood of

success. As in all instances, we express no view on the

constitutional analysis once the parties have had a full

opportunity to present and brief the issue. Further Supreme

Court and circuit-court guidance also may affect the ultimate

resolution of this issue.

8. Gatherings that Require a Permit

In the California cases, the district court held that

Plaintiffs are likely to succeed in challenging California

Penal Code section 26230(a)(10), which prohibits carry in:

[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.

Cal. Penal Code § 26230(a)(10). Defendant does not argue

that there is a national tradition of banning firearms

specifically at permitted public gatherings. Instead,

Defendant argues that there is a national tradition of banning

firearms at public gatherings in general and, because

permitted gatherings are a subset of all public gatherings, the

challenged provision falls within the tradition. We agree

with the district court that Plaintiffs are likely to succeed.

WOLFORD V. LOPEZ 73

Public gatherings have existed since before the

Founding, so Defendant must show an enduring national

tradition with respect to public gatherings. As with places

of worship, Defendant cannot point to a single regulation of

public gatherings until after the ratification of the Fourteenth

Amendment. Shortly after 1868, several States and

territories prohibited the carry of firearms at public

gatherings: Georgia and Texas in 1870, Missouri in 1879,

Arizona in 1889, Oklahoma in 1890, and Montana in 1903. 12

We agree with Defendant that those statutes carry some

evidentiary weight, particularly because they were enacted

soon after the ratification of the Fourteenth Amendment.

But, as we determined with respect to places of worship, we

conclude that Plaintiffs are likely to succeed because of the

lack of any prohibition on the carry of firearms in public

gatherings until after the ratification of the Fourteenth

Amendment.

Our conclusion is buttressed in part by the Supreme

Court’s admonition not to interpret the “sensitive places”

doctrine too broadly. See Bruen, 597 U.S. at 31 (rejecting

as “far too broad[]” the notion that “all places of public

congregation that are not isolated from law enforcement”

could qualify as “sensitive”). California’s law applies to all

gatherings that require any governmental permit, as well as

to the adjoining sidewalk or road.

12

Defendant also points to colonial laws in Virginia and North Carolina

that were successors to the Statute of Northampton. But the Supreme

Court has explained that those laws prohibited the carry of firearms only

to the “terror” of the people or for a “wicked purpose”; lawful carry was

permitted. Bruen, 597 U.S. at 49–51; see also Rahimi, 144 S. Ct. at 1901

(describing these laws).

74 WOLFORD V. LOPEZ

Our holding is consistent with the only other decisions to

have addressed similar issues. In Koons, the district court

held that the plaintiffs were likely to succeed on a Second

Amendment challenge to New Jersey’s law that, like

California’s law, broadly prohibits the carry of firearms at

permitted public gatherings. 673 F. Supp. 3d at 627–36.

And in Antonyuk v. Hochul, the district court enjoined the

provision of New York’s law that prohibits the carry of

firearms at any assembly or protest. 639 F. Supp. 3d at 335–

39. For its part, the Second Circuit did not reach the question

of the constitutionality of New York’s law, holding instead

that the plaintiffs lacked standing to challenge the provision.

Antonyuk, 89 F.4th at 376–79.

In sum, because no jurisdiction had prohibited the carry

of firearms at public gatherings until after the ratification of

the Fourteenth Amendment, we hold that Plaintiffs are likely

to succeed on their challenge to California Penal Code

section 26230(a)(10).

9. Financial Institutions

In both the Hawaii case and the California cases, the

district courts held that Plaintiffs are likely to succeed in

challenging the relevant provisions of state law that prohibit

the carry of firearms in financial institutions such as banks:

Hawaii Revised Statutes section 134-9.1(a)(12) and

California Penal Code section 26230(a)(23). We agree with

the district courts.

The district court in the Hawaii case found that “banks

and firearms existed at the time of the Second Amendment’s

ratification.” Wolford, 686 F. Supp. 3d at 1068. Defendant

did “not challenge Plaintiffs’ contention” that private banks

existed at the time of the Founding. Id. Defendant “also

d[id] not make any argument that [the district court] should

WOLFORD V. LOPEZ 75

analogize to different historical regulations because banks at

the time of the Second Amendment’s ratification are

substantially different than modern banks.” Id. at 1069. In

short, modern banks are roughly the same as banks in 1791.

Nor do we understand Defendant in the California case to be

making an argument to the contrary.

Regardless of the similarity between banks now and in

1791, Defendants have not pointed to any evidence of a

historical regulation—or even a more modern regulation—

prohibiting the carry of firearms in banks. And Defendants

have not pointed to a historical regulation prohibiting carry

in another type of place analogous to a bank or financial

institution. Regulations concerning robust events such as

fairs and markets, or balls and other social or political

gatherings, are not “analogous enough” to an ordinary

commercial establishment such as a bank. Bruen, 597 U.S.

at 30. A dynamic, congested gathering of persons with

commercial, political, and social elements is not particularly

analogous to a trip to a bank to deposit a check. Nor do

federal laws criminalizing bank robberies or requiring banks

to take measures to prevent robberies justify a complete ban

on firearms. Finally, even assuming that a ban on firearms

in most governmental buildings is constitutional, those laws

are not analogous because financial institutions generally are

privately owned and operated and because they serve a

commercial, non-governmental purpose.

In sum, we agree with the district courts in both cases

that Plaintiffs are likely to succeed on the challenge to the

prohibition on carrying firearms in financial institutions. We

note that, as with places of worship, nothing in this opinion

precludes a financial institution from banning firearms as a

matter of property law, consistent with applicable state law.

76 WOLFORD V. LOPEZ

The preliminary injunction means merely that any bank

operator who wishes to allow firearms on site may do so.

10. Hospitals and Other Medical Facilities

In the California cases, the district court held that

Plaintiffs are likely to succeed in their challenges to

California Penal Code section 26230(a)(7), which prohibits

carry in “[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.” We agree with the district court.

Defendant likely is correct that, as his expert states,

modern hospitals and medical facilities do not resemble the

hospitals at the Founding. But medical facilities of some sort

have existed since colonial times. As the district court here

concluded, Defendant has not introduced any evidence of a

historical ban on firearms in medical facilities of any type.

May, 2023 WL 8946212, at *7; see also Koons, 673 F. Supp.

3d at 651 (“This Court has uncovered no laws from the 18th

or 19th centuries that banned firearms at hospitals,

almshouses, asylums, or other medical facilities.”).

Defendant points, instead, to a few late 19th-century

laws, enacted after the ratification of the Fourteenth

Amendment, that banned firearms in places where people

assembled for “educational” or “scientific” purposes. Even

assuming that medical facilities in the 19th century were

understood to perform educational or scientific services, we

decline to find, as discussed above, a national historical

tradition of regulation from a few post-Fourteenth-

Amendment enactments. We also acknowledge that, just as

schools contain children, which are a vulnerable population,

hospitals and other medical facilities contain medical

WOLFORD V. LOPEZ 77

patients, another vulnerable population. But, at least for the

purpose of preliminary relief, we find it unlikely that

Defendant will establish a tradition of regulating firearms at

all places that contain a vulnerable population. The Supreme

Court did not hold that schools were sensitive solely because

they contain a vulnerable population; instead, the Court

pointed to 19th century laws specifically regulating firearms

in or near schools. Bruen, 597 U.S. at 30.

District courts have divided on the question whether a

national historical tradition of banning firearms at medical

facilities exists. Compare Koons, 673 F. Supp. 3d at 651–52

(holding that the plaintiffs were likely to succeed on a

challenge to New Jersey’s law); with Kipke, 695 F. Supp. 3d

at 653 (reaching the opposite conclusion with respect to

Maryland’s law); and Md. Shall Issue, 680 F. Supp. 3d at

590–92 (same). The Second Circuit held that the plaintiffs

were likely to succeed with respect to a challenge to New

York’s prohibition on firearms at locations providing

behavioral health and chemical dependent care or services.

Antonyuk, 89 F.4th at 337–42. But the court’s analysis

focused on historical laws—not mentioned by Defendant

here—concerning persons with mental or chemical-

dependency issues. 13 Id.

On the current record, and for the purpose of preliminary

relief, we hold that Plaintiffs are likely to succeed on their

challenge to California’s prohibition of firearms at hospitals

13

Although New York’s law covers locations also providing

undifferentiated “health” services, the plaintiff had standing only with

respect to locations providing “behavioral health, or chemical

dependence care or services,” and the district court and the Second

Circuit limited their analyses and holdings to those locations. Id. at 294,

337, 342.

78 WOLFORD V. LOPEZ

and other medical facilities. We emphasize that nothing

prevents an operator of a medical facility—whether

privately owned or State-run—from banning firearms under

ordinary principles of property law. See Bldg. & Constr.

Trades Council, 507 U.S. at 231 (explaining that a State

generally may “manage its own property when it pursues its

purely proprietary interests . . . where analogous private

conduct would be permitted”). The preliminary injunction

means only that a medical-facility operator may allow

firearms at its facility.

11. Public Transit

In the California cases, the district court held that

Plaintiffs are likely to prevail on their challenge to California

Penal Code section 26230(a)(8), which prohibits carry 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.” Unlike other parts of the law, section

26230(a)(8) contains no exceptions for carrying an unloaded

and secured firearm. Because the ban is categorical, we

agree with the district court that Plaintiffs are likely to

succeed on this challenge.

Public transit did not exist in modern form until the 20th

century, so Defendant has to point only to a relevantly

similar historical regulation, not a dead ringer. Rahimi, 144

S. Ct. at 1898. Defendant relies primarily on the rules and

regulations of some private railroad operators in the 19th

century. As one scholar has explained, six railroad

companies in the 19th century regulated the carry of firearms

on trains. Joshua Hochman, Note, The Second Amendment

WOLFORD V. LOPEZ 79

on Board: Public and Private Historical Traditions of

Firearm Regulation, 133 Yale L. J. 1676, 1690–96 (2024).

We agree with Defendant’s premise that, in examining

historical evidence, rules and regulations by private entities

may inform the historical analysis, particularly where, as

with train companies operating on the public right of way,

the “private” entities were providing essentially a public

service and were more properly characterized as mixed

public-private entities. But our examination of the relevant

regulations suggests that California’s law is too broad; the

historical regulations are insufficiently analogous. In

particular, most of the companies appeared to prohibit only

carriage without pre-boarding inspection, carriage in the

passenger cars (the firearms had to be checked as luggage),

carriage of loaded firearms, or carriage of “dangerous”

weapons, such as rifles with bayonets attached. Id.

Moreover, several States enacted a “traveler’s exception,”

whereby persons traveling longer distances could carry their

firearms on board. Id. at 1696–97.

We conclude from our examination of the 19th century

railroad rules that Defendant likely has proved a historical

tradition of prohibiting the carry of loaded firearms or the

carry of firearms not properly stored. But California’s broad

law does not fit that more limited tradition. California’s law

provides exceptions applicable to the carry of firearms in

private vehicles. First, the law allows a person to transport

a firearm in a private vehicle if the firearm is locked in an

appropriate lock box. Cal. Penal Code § 26230(b). Second,

the law allows a person to store a firearm in a private vehicle

in most parking areas where carriage of a firearm is

otherwise prohibited, provided that certain requirements are

met. Id. § 26230(c). But California’s law does not appear

to have—and Defendant has not argued that California’s law

80 WOLFORD V. LOPEZ

has—a similar exception on public transit, allowing (for

example) the carry of an unloaded and secured firearm on a

bus. 14 The lack of such an exception appears particularly

concerning in this context. For those who cannot afford

private transportation, a complete ban on carry in public

transit effectively disarms those persons entirely when they

leave home in a vehicle. In other words, unlike a ban on

carrying at, say, the circus, a ban on carrying on public

transit unavoidably affects some persons’ rights to bear arms

on a nearly daily basis.

We acknowledge that public transit bears some features

common to other sensitive places, such as government

buildings and schools. Transit facilities are often crowded,

they serve some vulnerable populations, and they are State-

owned. But the breadth of California’s law—in particular

the lack of any exception allowing the carry of any firearm

in any manner—persuades us that Plaintiffs are likely to

prevail on this claim. Finally, we note that our holding is

consistent with the district court’s holding here and with two

other district court decisions. See Koons, 673 F. Supp. 3d at

649–50 (holding that the plaintiffs are likely to succeed on

their challenge to New Jersey’s ban on firearms at airports

to the extent that the ban does not exempt firearms properly

secured and intended to be checked as luggage); Antonyuk

v. Hochul, 639 F. Supp. 3d at 328–31 (holding that the

plaintiffs are likely to succeed on their challenge to New

York’s ban on firearms on buses and vans); but see Kipke,

14

Hawaii’s law, by contrast, does have an exception for public transit.

See Haw. Rev. Stat. § 134-9.1(b)(8) (providing an affirmative defense

for a person who is “[p]ossessing a firearm in an airport or any place,

facility, or vehicle used for public transportation or public transit;

provided that the firearm is unloaded and in a locked hard-sided

container for the purpose of transporting the firearm”).

WOLFORD V. LOPEZ 81

695 F. Supp. 3d at 655–56 (holding that the plaintiffs are

unlikely to prevail on the challenge to Maryland’s ban on

firearms at mass transit facilities). The Second Circuit did

not reach this issue because, although the New York State

defendants appealed every other ruling in the plaintiffs’

favor, they did not appeal the district court’s injunction as to

buses and vans. Antonyuk, 89 F.4th at 294.

In sum, we hold that Plaintiffs are likely to succeed in

their challenge to California’s broad prohibition on the carry

of firearms on public transit. But we emphasize that our

holding hinges on the law’s categorical nature. A ban on the

carry of firearms on public transit almost certainly would be

constitutionally permissible if the law allowed the carry of

unloaded and secured firearms.

B. The Remaining Winter Factors

In addition to showing a likelihood of success, Plaintiffs

must demonstrate that they will suffer irreparable harm in

the absence of preliminary relief and that injunctive relief is

consistent with the equities and the public interest. Winter,

555 U.S. at 20. For the challenges as to which Plaintiffs have

failed to show a likelihood of success, we reverse the

preliminary injunction. Id.; see Garcia v. Google, Inc., 786

F.3d 733, 740 (9th Cir. 2015) (en banc) (“[W]hen a plaintiff

has failed to show the likelihood of success on the merits, we

need not consider the remaining [Winter factors].” (citation

and internal quotation marks omitted)).

For the challenges as to which Plaintiffs have shown a

likelihood of success, we affirm the preliminary injunction.

Our reasoning is threefold. First, we review for abuse of

discretion the grant of a preliminary injunction. Tucson, 91

F.4th at 1324. Second, each claim alleges a violation of a

constitutional right, which strongly suggests that the

82 WOLFORD V. LOPEZ

remaining Winter factors are met. Melendres v. Arpaio, 695

F.3d 990, 1002 (9th Cir. 2012). Finally, the injunction here

merely preserved the status quo before each law was set to

go into effect. City & County of San Francisco v. USCIS,

944 F.3d 773, 789 (9th Cir. 2019). We have considered

carefully Defendants’ counter-arguments but are

unpersuaded that the district courts abused their discretion in

granting preliminary relief.

CONCLUSION

In Wolford, we affirm the preliminary injunction with

respect to financial institutions, parking lots adjacent to

financial institutions, and parking lots shared by government

buildings and non-governmental buildings. We otherwise

reverse the preliminary injunction, thereby reversing the

injunction with respect to bars and restaurants that serve

alcohol; beaches, parks, and similar areas; parking areas

adjacent to all of those places; and the new default rule

prohibiting the carry of firearms onto private property

without consent. More specifically, we affirm the injunction

insofar as it enjoins Hawaii Revised Statutes section 134-

9.1(a)(12) and “the portions of [Hawaii Revised Statutes

section 134-9.1](a)(1) that prohibit carrying firearms in

parking areas owned, leased, or used by the State or a county

which share the parking area with non-governmental

entities, are not reserved for State or county employees, or

do not exclusively serve the State or county building.” We

reverse the injunction insofar as it enjoins Hawaii Revised

Statutes sections 134-9.1(a)(4), 134-9.1(a)(9), and 134-9.5.

In May and Carralero, we affirm the injunction with

respect to hospitals and similar medical facilities, public

transit, gatherings that require a permit, places of worship,

financial institutions, parking areas and similar areas

WOLFORD V. LOPEZ 83

connected to those places, and the new default rule as to

private property. We otherwise reverse the preliminary

injunction, thereby reversing the injunction with respect to

bars and restaurants that serve alcohol, playgrounds, youth

centers, parks, athletic areas, athletic facilities, most real

property under the control of the Department of Parks and

Recreation or Department of Fish and Wildlife, casinos and

similar gambling establishments, stadiums, arenas, public

libraries, amusement parks, zoos, and museums; parking

areas and similar areas connected to those places; and all

parking areas connected to other sensitive places listed in the

statute. More specifically, we affirm the injunction insofar

as it enjoins Defendant from implementing or enforcing

California Penal Code sections 26230(a)(7), (8), (10), (22),

(23), and (26). We reverse the injunction insofar as it enjoins

Defendant from implementing or enforcing California Penal

Code sections 26230(a)(9), (11), (12), (13), (15), (16), (17),

(19), and (20) and insofar as it enjoins Defendant from

implementing or enforcing California Penal Code section

26230(a) with respect to parking areas connected to sensitive

places.

Having concluded the historical analysis required by

Bruen and the Supreme Court’s other Second Amendment

cases, we close with a few general observations. First,

taking a step back from the historical analysis, the lists of

places where a State likely may ban, or may not ban, the

carry of firearms appear arbitrary. A State likely may ban

firearms in museums but not churches; in restaurants but not

hospitals; in libraries but not banks. The deep historical

analysis required by the Supreme Court provides the missing

link, but the lack of an apparent logical connection among

the sensitive places is hard to explain in ordinary terms. In

addition, the seemingly arbitrary nature of Second

84 WOLFORD V. LOPEZ

Amendment rulings undoubtedly will inspire further

litigation as state and local jurisdictions attempt to legislate

within constitutional bounds.

Second, we stress that owners of private property remain

free to ban the carry of firearms on their private property.

Nothing in the Second Amendment disturbs that basic

background principle of property law. For the places where

we hold that the States likely may not prohibit the carry of

firearms, the practical effect of our ruling is merely that

private-property owners may choose to allow the carry of

firearms. Owners of hospitals, banks, and churches, for

example, remain free to ban firearms at those locations.

Finally, we emphasize that an analysis about the

constitutional limits of what a State may ban has no effect

whatsoever on the choice by legislatures in other States not

to ban the carry of firearms. See generally Bianchi v. Brown,

2024 WL 3666180, at *5 (4th Cir. Aug. 6, 2024) (en banc)

(opinion by Wilkinson, J.) (making this same general point),

petition for cert. filed sub nom., Snope v. Brown, No. 24-203

(U.S. Aug. 21, 2024). That is, a ruling that California

permissibly may ban the carry of firearms in, for example,

museums does not have any effect on the choice by other

States not to ban firearms in museums. Persons residing in

other States are unaffected by California’s law or Hawaii’s

law—or our decision—unless, of course, they choose to

travel to California or Hawaii with firearms.

AFFIRMED IN PART AND REVERSED IN PART.

The parties shall bear their own costs on appeal.