The law banning residents in most parts of California from openly carrying loaded handguns for self-defense was ruled unconstitutional Friday by a federal appeals court.
A 2-1 decision of the San Francisco-based U.S. 9th Circuit Court of Appeals agreed with gun owner Mark Baird, finding that California’s ban on open carry in counties with a population greater than 200,000 is inconsistent with the Second Amendment’s right to bear arms.
However, the three-judge panel affirmed the state’s open-carry permit requirement for residents of smaller, less populated counties.
Writing for the majority, Circuit Judge Lawrence VanDyke, a Donald Trump appointee, said California’s law cannot stand under the U.S. Supreme Court’s 2022 decision establishing a new test requiring gun restrictions that correspond with the nation’s tradition of firearm regulation.
According to the opinion, open carry has been the default manner of lawfully carrying firearms across the country. More than 30 states generally allow open carry, including states with significant urban populations, the judge wrote.
“Indeed, several of our Nation’s largest cities and states recently returned to unlicensed open carry by explicitly authorizing it,” according to the opinion. “For example, Texas re-authorized open carry without a license in 2021. Kansas likewise transitioned back to allowing open carry without a permit in 2015. And other states that placed restrictions on open carry in recent decades have also removed those burdens.”
For the first 162 years of its history, open carry “was a largely unremarkable part of daily life in California,” VanDyke wrote, also saying that open carry “is unquestionably part of our Nation’s history and tradition of `the right to keep and bear arms.”‘
The ruling partially reverses a lower court’s 2023 decision that upheld the ban, which was challenged in 2019.
Judge N. Randy Smith, an appointee of George W. Bush, dissented.
California is expected to now request what’s called an en banc review, where a larger group of appellate judges would re-hear the case. If the panel again agrees with Baird, the state could petition the U.S. Supreme Court to take up the case.
California has had some of the strictest gun regulations in the country.
The decision stems from Baird’s 2019 civil rights lawsuit, filed in Sacramento federal court, against California Attorney General Rob Bonta, which argued that California’s law prohibiting the open carry of loaded firearms in public is unconstitutional. After part of the case was dismissed, appellate arguments were eventually heard by the three-judge panel in June.
Baird resides in rural Siskiyou County, with a total population of less than 45,000, located near the Oregon border. He argued in court papers that he suffers “irreparable harm by the ongoing deprivation of my preexisting and guaranteed individual right to bear arms for self- defense.”
