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.
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 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.
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.
While the appeals court ruled the open-carry ban unconstitutional, it upheld the state’s open-carry permit process. Baird’s lawyer did not immediately respond to a request for comment Friday.
The California attorney general’s office did not immediately respond to request for comment Friday, but a representative told Courthouse News Service that the office is “committed to defending California’s commonsense gun laws” and “reviewing the opinion and considering all options.”
