The Federal Judicial Ruling That Would Put Guns on California Playgrounds
As troubling as the Supreme Court’s recent Second Amendment decisions have been, even they have limits. None of the justices dispute that some locations are rightly gun-free. Firearms can be banned from “sensitive places such as schools and government buildings,” the late Justice Antonin Scalia wrote for a majority of the court in 2008’s Heller decision. History supports bans in places like “legislative assemblies, polling places, and courthouses,” Justice Clarence Thomas reiterated for a majority last year in New York State Rifle & Pistol Association v. Bruen. And those places, Bruen said, are not exhaustive examples. Courts can analogize to those historical locations “to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” And yet, in Bruen’s wake, those assurances do not seem to be holding.
Last month, in Carralero v. Bonta, a federal judge in Orange County declared it unconstitutional to prohibit guns in a host of places California had designated gun-free. Those spaces include not just quintessentially sensitive places like banks, playgrounds, and hospitals, but also the parking lots of schools and government buildings, even particularly sensitive ones like police stations, prisons, and primary and secondary schools. Perhaps most shockingly, the court ruled that the Second Amendment does not even permit the state to ban guns in the parking lots of facilities storing nuclear weapons. Yes, nuclear weapons.
The Carralero decision takes a sledgehammer to SB2, the California law enacted in response to the Supreme Court’s 2022 decision striking down restrictive handgun licensing laws. And it further underlines how dangerously chaotic the Supreme Court’s Second Amendment jurisprudence has become.
Last year, gun owners and advocacy organizations sued to stop SB2 from going into effect on Jan. 1, 2024. The plaintiffs challenged the restrictions in more than a dozen places, like hospitals, public transit, playgrounds, parks, stadiums, theaters, zoos, libraries, museums, and banks. The Carralero court agreed with them in every single instance. Using the new method the Supreme Court laid out for Second Amendment challenges—which requires a contemporary law to find support in America’s “historical tradition of firearms regulation”—the judge found no relevant historical analogs.
The decision viewed that historical record narrowly. It invalidated the bans in over a dozen locations. The court rejected legislation like Texas’ 1870 law barring guns in any place “where persons are assembled for educational, literary or scientific purposes” as insufficiently similar or representative to support SB2’s ban on guns in museums, libraries, and hospitals. It found nothing to save the prohibition on bringing guns to “a playground or public or private youth center.” You might think that this prohibition is both sensible and closely connected to the rationale for why gun prohibitions in schools are acceptable, like the need to protect vulnerable populations (as other courts assessing similar restrictions have said). But you would be wrong. At schools, said the Carralero court, children are entrusted to the protection of school officials, but “at playgrounds parents and caregivers remain responsible for their children’s safety without any immediate support.” And schools are often restricted areas, whereas playgrounds are often open and freely accessible. Because of those differences, the state’s ban could not be justified. The court even suggested that the law is not just unconstitutional but misguided. The prohibition “eviscerates [licensed gun carriers’] ability to defend themselves and their children against attack” on the playground.
But that’s not all. The decision also invalidated the parking lot restrictions for all of the locations in California law, even for places that no one disputed were correctly classified as sensitive. In other words, even in those places where the challengers acknowledged that guns could be banned—like in jails, airports, and courthouses—California now cannot keep guns out of the parking lots adjacent to those spaces. To reach that conclusion, the court resorted to a hypertextualist reading of the Supreme Court’s case law. Those cases, wrote the court, “describe sensitive places where carry may be prohibited using the preposition ‘in,’ not ‘near’ or ‘around.’ ” With just four total sentences of analysis, the court concluded that “SB2’s designation of parking areas as sensitive places is inconsistent with the Second Amendment.”
Curiously, the decision does not cite or mention several prior federal appellate court opinions that had analyzed this precise issue in depth and concluded that at least some parking lots connected to government buildings are sensitive. Writing for a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit in United States v. Class, for example, Republican-appointed Judge Thomas Griffith concluded that a parking lot near the U.S. Capitol garnered the same protection as the building itself. Class roundly rejected the hypertextualist reasoning embraced in Carralero. Those judges had “little trouble concluding that the same security interests which permit regulation of firearms ‘in’ government buildings permit regulation of firearms on the property surrounding those buildings as well.”
Carralero’s reading of Bruen and the historical record would guarantee more guns in sensitive spaces. Under its logic, parking areas connected to courthouses, jails, polling places, and legislative assemblies must now be gun-welcome zones. So too must be libraries, zoos, museums, playgrounds, parks, and public transit. This result was not preordained. Earlier this month, a three-judge panel consisting of both Republican- and Democratic-appointed judges on the U.S. Court of Appeals for the 2nd Circuit unanimously upheld New York’s gun restrictions in many of these same places. Rather than stingily splice the historical sources, as the Carralero court did, those judges drew upon the historical principles that justified locational restrictions. They relied on the well-established traditions of barring guns from places “where vulnerable populations are present,” like those “spaces frequented by children,” and “in public forums and quintessentially crowded places” as well as “places of educational and scientific opportunity.”
In comparing the Carralero case with other recent decisions, one striking feature of the opinion is its black-and-white quality. There are no gray areas, close questions, or hard calls here. The challengers win on every claim they make, something I’m hard-pressed to recall happening in any other wide-ranging challenge to gun laws post-Bruen, despite reading hundreds of these decisions. The court dispenses with all of the challenges to California’s law in a lean 43 pages, dwarfing the tome-length 261 pages it took the 2nd Circuit to review similar restrictions, or the 184 pages a New York federal district court took to assess that state’s post-Bruen sensitive-place law. Despite its brevity, the decision’s black-and-white character bleeds through to its dystopian, American carnage–like view of contemporary society, which conjures images of bad guys lurking on every corner. The opinion begins darkly: “We live in dangerous times.” It ends, if anything, even more bleakly: “SB2 requires that law-abiding citizens open themselves up for slaughter at the hands of people flaunting the law and creates numerous areas ripe for mass murder by ensuring there is no one there to protect people before ‘the intervention of society in his behalf.’ ”
The irony here is that the great weight of empirical evidence suggests that the proliferation of guns in public places makes them less safe, not more. So, in an important sense, the ruling creates its own reality. If it stands, we will indeed live in more dangerous times.
The fault for decisions like Carralero lies largely at the Supreme Court’s feet. In Bruen, the court discarded the conventional constitutional test that had applied in lower courts for more than a decade. Its replacement history-and-analogy test has proved indecipherable to courts and commentators. Even Republican-appointed judges striking down laws after the ruling have highlighted the confusion it caused. Just weeks ago, as a federal judge in the Western District of Texas became the first to declare unconstitutional the ban on firearm possession for undocumented immigrants, that court “pause[d] to join the choir of lower courts urging the Supreme Court to resolve the many unanswered questions left in Bruen’s wake.” After ruling that Bruen made it unconstitutional to prohibit firearm purchases by individuals facing felony charges, a Republican-appointed federal judge in Indiana wrote, “The author of this opinion retains hope that he hasn’t accurately grasped the Supreme Court’s understanding of the Second Amendment.” Yet another Republican-appointed judge, while striking down the federal law prohibiting individuals subject to domestic violence restraining orders from having guns, pointed to the risk of relying only on the historical record introduced in the case, writing, “One could easily imagine a scenario where separate courts can come to different conclusions on a law’s constitutionality, but both courts would be right under Bruen.” Bruen, in short, has caused disarray in the lower courts, and Carralero is only the latest sign that the Supreme Court ought to change course.
To be sure, this particular district court decision is likely to be short-lived. The U.S. Court of Appeals for the 9th Circuit has already put it on hold and will probably reverse the decision as to at least some, if not all, of the locations. But Bruen’s demand that courts blind themselves to the contemporary costs of gun proliferation in the name of fealty to the past is a problem the appeals court cannot remedy. Only the Supreme Court can correct that flaw. For the sake of the country, it should take the earliest opportunity to do so.
