Appellants, Baird and Gallardo wished to openly carry handguns in California for self-protection, but California's current licensing regime effectively establishes a statewide ban on open carry by ordinary law-abiding Californians. With narrow exceptions, those Californians who reside in counties with more than 200,000 residents—roughly 95% of state residents —may not apply for an open-carry license. See Baird v. Bonta, 81 F. 4th 1036 (9th Cir. 2023).
Appellants reside in counties with fewer than 200,000 inhabitants but have been unable to obtain an open-carry license, so they cannot legally openly carry a handgun. They argue that this prohibits conduct covered by the Second Amendment, has no historical analogue, and therefore infringes their Second Amendment right to bear arms for self-defense. They sued the Attorney General of California in his official capacity and thrice moved the district court to preliminarily enjoin enforcement of sections 25850 and 26350 of the California Penal Code, which criminalize unlicensed open carry of a handgun.
After a hearing, the district court denied the preliminary injunction motion without analyzing whether Appellants were likely to succeed on the merits of their claim or likely to suffer irreparable injury. On appeal, Appellants argue that the district court abused its discretion by (1) conducting an incomplete preliminary injunction analysis (2) that was flawed even on its own terms because it consisted solely of a speculative or even impermissible public safety analysis of the effects of issuing a preliminary injunction.
Reversed — A district court that skips analyzing the first Winter factor in a constitutional case cannot properly evaluate the other factors
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The appropriate legal standard to analyze a preliminary injunction motion requires a district court to determine whether a movant has established that (1) he is likely to succeed on the merits of his claim, (2) he is likely to suffer irreparable harm absent the preliminary injunction, (3) the balance of equities tips in his favor, and (4) a preliminary injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); accord Chamber of Com. of the U.S. v. Bonta, 62 F.4th 473, 481 (9th Cir. 2023). As a general matter, district courts "must consider" all four Winter factors. Vivid Ent., LLC v. Fielding, 774 F.3d 566, 577 (9th Cir. 2014) (emphasis added). The first factor "is a threshold inquiry and is the most important factor." Env't Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020). Thus, a "court need not consider the other factors" if a movant fails to show a likelihood of success on the merits. Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017). When, like here, the nonmovant is the government, the last two Winter factors "merge." Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009); Roman v. Wolf, 977 F.3d 935, 940-41 (9th Cir. 2020) (per curiam).
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1. The first Winter factor is centrally important in cases where a plaintiff brings a constitutional claim.
We begin with the relevant preliminary injunction principles. The first Winter factor, likelihood of success, "is a threshold inquiry and is the most important factor" in any motion for a preliminary injunction. Env't Prot. Info. Ctr., 968 F.3d at 989. That holds especially true for cases where a plaintiff seeks a preliminary injunction because of an alleged constitutional violation. If a plaintiff bringing such a claim shows he is likely to prevail on the merits, that showing will almost always demonstrate he is suffering irreparable harm as well. See Humble, 753 F.3d at 911; Melendres, 695 F.3d at 1002 ("[T]he deprivation of constitutional rights 'unquestionably constitutes irreparable injury.'" (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion))); Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (holding that a finding of irreparable harm "follows inexorably" from a "conclusion that the government's current policies are likely unconstitutional"). Accordingly, "[w]hen an alleged deprivation of a constitutional right is involved, ... most courts hold that no further showing of irreparable injury is necessary." 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1 (3d ed. 1998).
A plaintiff's likelihood of success on the merits of a constitutional claim also tips the merged third and fourth factors decisively in his favor. Because "public interest concerns are implicated when a constitutional right has been violated, ... all citizens have a stake in upholding the Constitution," Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005), meaning "it is always in the public interest to prevent the violation of a party's constitutional rights," Elsasser, 32 F.4th at 731 (quoting Melendres, 695 F.3d at 1002); see also Cal. Chamber of Com., 29 F.4th at 482 ("[T]his court has 'consistently recognized the significant public interest in upholding [constitutional] principles.'" (quoting Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014))). The government also "cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations." Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983); see also Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (holding that the government "cannot suffer harm from an injunction that merely ends an unlawful practice" implicating "constitutional concerns"). Accordingly, we have held that plaintiffs who are able to "establish[] a likelihood that [a] policy violates the U.S. Constitution ... have also established that both the public interest and the balance of the equities favor a preliminary injunction." Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014); see also Hernandez, 872 F.3d at 996.
In sum, because of the importance of the first Winter factor in cases where a plaintiff alleges a constitutional injury, it is no surprise that "our caselaw clearly favors granting preliminary injunctions to a plaintiff... who is likely to succeed on the merits of his [constitutional] claim." Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).
2. The right to carry a handgun for defense outside the home can be regulated only in ways closely analogous to regulations widely in effect in 1791 or 1868.
Having established the centrality of the likelihood of success on the merits factor to the preliminary injunction analysis, we next provide a brief overview of the substantive law that governs the merits inquiry in Appellants' Second Amendment challenge to California's general open-carry ban.
The Second Amendment guarantees the right to keep and bear arms, see District of Columbia v. Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), including "an individual's right to carry a handgun for self-defense outside the home," Bruen, 142 S. Ct. at 2122. The Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against the states. See McDonald, 561 U.S. at 791, 130 S.Ct. 3020. Following Heller and McDonald, we applied "a two-step inquiry in deciding Second Amendment cases." Silvester v. Harris, 843 F.3d 816, 820-21 (9th Cir. 2016). First, we looked to history to determine "whether the challenged law burden[ed] conduct protected by the Second Amendment," and, if so, we then applied "the appropriate level of scrutiny," id. at 821, depending on "the extent to which the law burden[ed] the core of the Second Amendment right" of self-defense and the severity of that burden, Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 960-61 (9th Cir. 2014).
In Bruen, the Supreme Court expressly rejected the use of such "means-end scrutiny in the Second Amendment context" and described the two-step approach as "one step too many." 142 S. Ct. at 2127. Following Bruen, "text and history, not a means-end analysis, now define the controlling Second Amendment inquiry." Atkinson v. Garland, 70 F.4th 1018, 1020 (7th Cir. 2023); see Bruen, 142 S. Ct. at 2131 (stating that, although "judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate —it is not deference that the Constitution demands" under the Second Amendment).
Thus, if the Second Amendment's plain text covers the regulated conduct, the regulation will stand only if the government can "affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms" in the United States. Bruen, 142 S. Ct. at 2127. While the government need not identify a "dead ringer" for its modern regulation, it must locate a "well-established and representative historical analogue" that was in effect when the Second or Fourteenth Amendment was ratified. Id. at 2132-33. To qualify, the analogue must be close: the historical regulation must have been "relevantly similar" to the challenged regulation in "how and why" it "burden[ed] a law-abiding citizen's right to armed self-defense." Id. As the Supreme Court has cautioned, upholding a modern regulation that only "remotely resembles a historical analogue" would entail "endorsing outliers that our ancestors would never have accepted" and thus be inconsistent with the historical inquiry required by Bruen. Id. at 2133 (quoting Drummond v. Robinson Twp., 9 F.4th 217, 226 (3d Cir. 2021)).
3. Bruen's effect on the Winter test for preliminary injunctions.
We next briefly address the effect of Bruen on Winter's four-factor preliminary injunction test. Bruen clarified the appropriate legal framework to apply when a plaintiff challenges a statute under the Second Amendment. Bruen expressly rejected the use of "means-end scrutiny," 142 S. Ct. at 2127, and any "interest-balancing inquiry," id. at 2129 (quoting Heller, 554 U.S. at 634, 128 S.Ct. 2783), when assessing a plaintiff's likelihood of success on the merits of a Second Amendment challenge. Thus, Bruen obviously affects the first Winter factor—the likelihood of success on the merits inquiry in a motion for a preliminary injunction. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (holding that the "burdens at the preliminary injunction stage track the burdens at trial"); see also Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). And under Winter's well-settled standards— which apply to Second Amendment claims like any other constitutional claim—courts consider all of the Winter factors and assess irreparable harm and the public interest through the prism of whether or not the plaintiff has shown a likelihood of success on the merits.
4. The district court abused its discretion when it skipped any analysis of the first and most important Winter factor in this case.
Applying these principles to the instant case, we have no trouble concluding that the district court abused its discretion when it denied Appellants' preliminary injunction motion. A district court that skips analyzing the first Winter factor in a constitutional case cannot properly evaluate the other factors.
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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding the Second Amendment. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.