California's ban on the open carry of firearms in most of the state is unconstitutional, a San Francisco-based federal appeals court ruled Friday.
The U.S. Court of Appeals for the Ninth Circuit found that the ban, which applied to counties with populations greater than 200,000, violates residents' Second Amendment right to keep and bear arms. Under those regulations, 95% of the state's population was subject to the ban.
The 2-to-1 opinion was supported by two of President Trump's appointees, U.S. Circuit Judges Lawrence VanDyke and Kenneth Kiyul Lee. U.S. Circuit Judge N. Randy Smith, appointed by former President George W. Bush, dissented.
VanDyke, writing for the majority, asserted that California's urban ban on open carry permits is not governed by the New York State Rifle and Pistol Association's landmark Supreme Court ruling on gun rights. against Bruen. That 2022 decision made it much easier to carry a gun in public by repealing laws that required people to show a special need for self-defense.
It also established a test to determine whether a state's gun regulations violate the Constitution by requiring that restrictions be consistent with “the historical tradition delimiting the outer limits 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 it unequivocally clear 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 justification for the restriction – that open carry has the potential to create panic, chaos and an unsafe environment – are challenges that have existed and been addressed alternately since the founding of the nation.
He wrote that open carry has been the “default legal means” of carrying a firearm for most of American history and that more than 30 states, including those with significant urban populations, currently allow open carry of firearms.
Smith, dissenting, argued that because California upholds the right to bear arms through its concealed carry permits, it can restrict open carry permits.
“A state cannot prohibit the public carrying of firearms by eliminating open and concealed carry, but a state can lawfully eliminate a form of carry to protect and ensure the safety of its citizens, as long as they are otherwise able to carry,” Smith wrote.
The case was the result of a challenge brought by Siskiyou County resident Mark Baird, who challenged both the state's ban on open carry and licensing requirements for open carry permits in rural counties.
While the appeals court ruled that the open carry ban was unconstitutional, it upheld the state's open carry permit process. Baird's attorney did not immediately respond to a request for comment Friday.
A representative from the California attorney general's office said Friday that the office is “committed to upholding California's common-sense gun laws” and “reviewing opinion and considering all options.”
