A panel of the US Court of Appeals for the Ninth Circuit on Friday ruled that California’s restrictions on openly carrying firearms in the state’s more populous counties violate the Second Amendment. In Baird v. Bonta, a 2–1 panel affirmed in part and reversed in part the district court’s summary judgment for California Attorney General Rob Bonta, remanding with instructions to enter judgment for plaintiff Mark Baird on his challenge to the state’s “urban open-carry ban.”
Applying the framework set out in New York State Rifle & Pistol Ass’n v. Bruen, the panel held that “the historical record makes unmistakably plain” that open carry is “part of this Nation’s history and tradition,” and that California did not meet its burden to identify a relevant historical tradition supporting its modern restriction. The majority concluded that California’s “urban open-carry ban that flatly prohibits all open carry in the areas of the state where 95% of the people live is thus unconstitutional.”
The panel rejected Baird’s effort to invalidate California’s open-carry licensing scheme in less populous counties. It held that Baird waived his as-applied challenge to the rural licensing system by failing to contest the district court’s dismissal in his opening brief, and that a facial challenge to the rural licensing structure conflicted with Bruen’s suggestion that “shall-issue” licensing regimes can be constitutional. The panel characterized California’s rural licensing scheme—at least on its face—as “shall-issue,” under which a general desire for self-defense is sufficient to obtain a permit.
California’s open-carry restrictions operate through multiple provisions. State law generally criminalizes carrying a loaded firearm in specified public places and streets (Cal. Penal Code § 25850), and separately criminalizes openly carrying an unloaded handgun in similar public locations (Cal. Penal Code § 26350). California also provides for a license to carry a handgun “loaded and exposed” only where the county population is less than 200,000 and only within the within the issuing county (Cal. Penal Code §§ 26150(c)(2), 26155(c)(2)).
Judge Kenneth K. Lee filed a concurrence, joined by Judge Lawrence VanDyke, criticizing what he described as California’s “subterfuge” in administering its open-carry licensing system. Lee emphasized the state’s acknowledgement that it had “no record of even one open-carry license being issued,” citing California’s own representations in the litigation, and suggested that the state may have misled residents about how to apply for such permits despite their formal availability under state law. In a separate opinion, Judge N. Randy Smith concurred in part and dissented in part, arguing that open carry is not conduct covered by the Second Amendment’s plain text and that, because California permits concealed carry through a licensing regime, the state may constitutionally restrict open carry in more populous counties.
