9th Circuit rules against ban on open carry of firearms in most California counties

By Dave Mason
The Center Square

The U.S. Court of Appeals for the 9th Circuit Friday ruled against California’s ban on open carry of firearms in most counties.

The San Francisco-based court’s ruling declared the ban unconstitutional in counties with a population exceeding 200,000. Those counties make up 95% of the state.

According to the written ruling, the panel of three 9th Circuit judges found the ban “is inconsistent with the Second Amendment’s right to bear arms as applied to the states through the Fourteenth Amendment.” The ruling came in the lawsuit that gun owner Mark Baird filed against California Attorney General Rob Bonta. It partially affirmed and partially reversed a 2023 ruling by Judge Kimberly J. Mueller of the U.S. District Court for Eastern California.

The Center Square reached out Friday to the state Attorney General’s Office, which said, “We are committed to defending California’s commonsense gun laws. We are reviewing the opinion and considering all options.”

The 9th Circuit panel, which consisted of judges N. Randy Smith, Kenneth K. Lee and Lawrence VanDyke, said they applied the standard set forth in a 2022 U.S. Supreme Court case, New York State Rifle & Pistol Association v. Bruen. They noted open carry is part of the nation’s history and tradition.

“It was clearly protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment,” the judges wrote in their ruling. “There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation.”

California failed to present evidence of “a relevant historical tradition of firearm regulation with respect to California’s urban open-carry ban,” according to the ruling.

The judges said they found Bruen applied to counties with populations exceeding 200,000. But they said they concluded Baird, the plaintiff, waived his “as-applied challenge by not contesting the district court’s dismissal” in regard to counties with fewer than 200,000 people. They said they affirm the district court’s rejection of Baird’s challenge to the open-carry licensing scheme in the less populated counties, which may issue open-carry permits.

One of the judges, Smith, partially concurred and partially dissented with the majority opinion. He said the restrictions on open carry in more populous counties is constitutional.

“My colleagues got this case half right,” Smith wrote. “The majority opinion correctly holds that California’s open carry licensing scheme is facially constitutional under Bruen. However, my colleagues misread Bruen to prohibit California’s other restrictions on open carry.”

“We should have affirmed the district court,” Smith said, referring to the entire lower court ruling.