On Friday, Jan. 3, a divided three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that California’s ban on open carry in counties with a population of greater than 200,000 violates the Second Amendment. This means that California, at least for the moment, is an unlicensed open carry state in the populous counties where 95% of its residents live. A separate California law that theoretically allows open carry in counties with a population of fewer than 200,000 pursuant to a license was allowed to stand, notwithstanding the state’s inability to document even one such license being issued pursuant to its terms. That issue, however, was not preserved for appeal. The case is Baird v. Bonta.
The ruling came in a scholarly opinion by Judge Lawrence VanDyke, who was joined in the majority by Judge Kenneth K. Lee, who wrote a concurrence. Judge N. Randy Smith also wrote separately, dissenting from the majority’s holding. Judge Smith would have held that the availability of a [nominally] shall-issue concealed carry option cured any constitutional defect with generally banning open carry.
The majority grouped cases under the Supreme Court’s precedent in New York State Rifle & Pistol Association v. Bruen into two major categories. One category required a “straightforward” application of Bruen’s historical standard in the case of “firearms regulations [that] seek to address general societal problems that have persisted since the Founding” (internal quotation marks omitted). On the other hand, “cases that implicate ‘unprecedented societal concerns or dramatic technological changes,’” might require a more “nuanced approach” that requires “courts to take a closer look at ‘how and why [historical] regulations burden a law-abiding citizen’s right to armed self-defense.’”
The issue of open carry fell inti the straightforward category, the majority held, because, “The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition.” That is, “It was clearly protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment.”
Meanwhile, even though these earlier generations shared California’s concerns about preserving public peace and preventing disorder, including from the misuse of publicly carried firearms, they did not address these concerns by banning open carry. The fact that “earlier generations addressed the societal problem, but did so through materially different means, is probative evidence that a modern regulation is unconstitutional,” the majority held (internal quotation marks omitted).
The majority also diverged from the dissent by holding that open carry was treated as its own constitutional category under founding era precedents because it offered advantages over concealed carry in the defensive use of firearms. The court therefore explicitly rejected the idea that, as long as some form of public carry remained for self-defense, open carry could be banned.
While Judge VanDyke’s opinion provides great insight into Bruen and its application, the Ninth Circuit is infamous for overturning opinions upholding the Second Amendment on en banc review. Whether Baird will suffer that fate as well remains to be seen, but Second Amendment advocates in the Golden State are well acquainted with this doleful scenario.
Also of note is that Baird creates a circuit split with the Second Circuit on the constitutionality of banning open carry. If that split holds, it could make the issue more likely to attract attention from the U.S. Supreme Court.
For now, in any event, America’s most populous state has retaken its place among the more than 30 other U.S. states that recognize a right to openly carry handguns for self-defense in public. Stay tuned for further developments in this unfolding story.
More Like This From Around The NRA
