California’s ban on the open carry of firearms in most parts of the state is unconstitutional, a San Francisco-based federal appeals court ruled Friday.
The 9th U.S. Circuit Court of Appeals determined that the ban, which applied to counties with populations greater than 200,000, violates residents’ 2nd Amendment right to keep and bear arms. Under those regulations, 95% of the state’s population was subject to the ban.
Gov. Gavin Newsom suggested the state will likely appeal the ruling, which would otherwise go into effect within seven to 21 days.
“California’s law was carefully crafted to comply with the Second Amendment and we’re confident this decision will not stand,” he said in a post on X.
The 2-1 opinion was supported by two appointees of President Trump, U.S. Circuit Judges Lawrence VanDyke and Kenneth Kiyul Lee. U.S. Circuit Judge N. Randy Smith, an appointee of former President George W. Bush, dissented.
VanDyke, writing for the majority, stated that California’s urban ban on open-carry permits does not stand under the Supreme Court’s landmark gun rights ruling New York State Rifle & Pistol Assn. vs. Bruen. That 2022 decision made it much easier to carry a gun in public by striking down laws that required people to show a special need for self-defense.
It also established a test for determining whether a state’s gun regulations violate the Constitution by requiring that restrictions are consistent with “the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
VanDyke wrote in his opinion that California’s open-carry ban — enacted in a 2011 law put into effect after gun enthusiasts began displaying unloaded firearms in public spaces — fails this test.
“The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition,” he wrote. “It was clearly protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment.”
He further noted that California’s rationale for the restriction — that open carry has the potential to create panic, chaos and an unsafe environment — are challenges that have existed and been alternatively dealt with since the nation’s founding.
He wrote that open carry has been the “default lawful means” to carry a firearm for most of American history and that more than 30 states, including those with significant urban populations, currently allow the open carry of firearms.
The state had argued that changes in technology make modern handguns more dangerous, thereby justifying the open carry ban. But VanDyke said that line of reasoning had already been rejected by the Supreme Court, and was not relevant to the case.
“This is a case about a practice — open carry — that indisputably dates back to the earliest days of the Republic,” he wrote. “If this is somehow a case about new technology, then every Second Amendment case is a case about new technology.”
Smith, writing in dissent, argued that because California upholds the right to bear arms through its concealed-carry permits, it can restrict open-carry permits.
“A state may not prohibit the public carriage of firearms by eliminating both open and concealed carry, but a state can lawfully eliminate one manner of carry to protect and ensure the safety of its citizens, as long as they are able to carry in another manner,” Smith wrote.
The case resulted from a challenge brought by Siskiyou County resident Mark Baird, who contested both the state’s open-carry ban and the licensing requirements for open-carry permits in rural counties. He filed his suit in 2019.
While the appeals court ruled the open-carry ban unconstitutional, it upheld the state’s open-carry permit process. Baird’s lawyer did not respond to a request for comment.
California has some of the most restrictive gun laws in the nation including bans on assault weapons, limits on ammunition purchases, and extensive permitting requirements for concealed carry. The state first banned loaded open carry with the 1967 Mulford Act, named after deceased Republican Assemblyman Don Mulford in response to armed demonstrations by the Black Panthers at the State Capitol. Then-governor Ronald Reagan signed the bill into law.
Jason Davis, an attorney who specializes in firearms, said Friday’s ruling is significant because it demonstrates that the right to carry firearms protected by the 2nd Amendment extends beyond licensed concealed carry and “further advances individual’s rights.”
However, he added the ruling will almost certainly not be the final word from the 9th Circuit, and expects the state to appeal the ruling.
“This case will likely be taken up en banc for full panel review,” he said, suggesting it would be heard by a larger group of judges.
The result could “further substantially delay the actual final result,” he said.
A representative for the California attorney general’s office said Friday that the office is “committed to defending California’s commonsense gun laws” and “reviewing the opinion and considering all options.”
