California’s Urban Open-Carry Ban Struck Down: A Landmark Ruling Reshapes Gun Rights

In a decision poised to send ripples across the nation, a panel of the US Court of Appeals for the Ninth Circuit delivered a significant blow to California’s stringent gun control measures last Friday. The court ruled that the state’s long-standing ban on openly carrying firearms in its most populous counties, areas home to a staggering 95% of California’s residents, violates the Second Amendment of the US Constitution. This landmark judgment, stemming from the case of Baird v. Bonta, effectively upends a core component of California’s approach to firearm regulation, forcing a re-evaluation of what open carry means in one of America’s most populated states.

The 2-1 panel’s decision affirmed in part and reversed in part a lower district court’s summary judgment, ultimately remanding the case with explicit instructions to rule in favor of plaintiff Mark Baird on his challenge to the state’s “urban open-carry ban.” This ruling is not just a procedural victory; it’s a philosophical one, rooted deeply in the evolving interpretation of gun rights following the Supreme Court’s pivotal 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen. That case fundamentally shifted how courts assess Second Amendment challenges, demanding that gun laws be consistent with the nation’s historical tradition of firearm regulation, rather than simply serving a compelling government interest.

A Decisive Blow to California’s Open-Carry Restrictions

For decades, California has maintained some of the strictest gun laws in the United States, often serving as a legislative vanguard for gun control advocates. The state’s open-carry restrictions operated through a complex web of provisions. Specifically, 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). These provisions effectively created an “urban open-carry ban” by limiting open carry to counties with populations under 200,000, and even then, only with a specific license.

This framework meant that for the vast majority of Californians living in bustling metropolitan areas like Los Angeles, San Francisco, or San Diego, openly carrying a firearm was largely prohibited. The state’s rationale typically centered on public safety, aiming to reduce gun violence and prevent confrontations. However, the Ninth Circuit panel, in its majority opinion, found that this modern restriction simply could not stand when measured against the demanding historical test established by Bruen.

The ruling specifically targets the broad prohibition of open carry in populous areas, asserting that such a blanket ban goes beyond what historical tradition permits. “It’s a very significant opinion,” noted Michel, as reported by ClickOnDetroit, highlighting how crucial the application of the 2022 Supreme Court decision has become in shaping current gun rights debates. This decision represents a profound recalibration of the balance between individual gun rights and state regulatory power, particularly in a state known for its progressive stance on gun control.

The Bruen Standard: History and Tradition Reign Supreme

At the heart of the Ninth Circuit’s decision lies the application of the Bruen framework, which marked a significant departure from previous Second Amendment jurisprudence. Before Bruen, courts often employed a two-step approach, first examining whether a law infringed on the Second Amendment’s plain text, and if so, then applying a “means-end scrutiny” test to determine if the law served an important government interest. Bruen, however, jettisoned this approach, replacing it with a singular, historically focused inquiry: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

Applying this stringent historical test, the Ninth Circuit panel, comprising Judges Kenneth K. Lee and Lawrence VanDyke in the majority, concluded that “the historical record makes unmistakably plain” that open carry has been “part of this Nation’s history and tradition.” This finding placed the burden squarely on California to identify a relevant historical tradition supporting its modern, widespread urban open-carry ban. The state, the majority found, failed to meet this burden.

The court’s analysis delved into centuries of American legal and social history concerning firearms, seeking parallels or precedents for such a comprehensive prohibition on open carry. Finding none that adequately supported California’s broad ban in densely populated areas, the panel declared it unconstitutional. This approach underscores a fundamental shift in how gun rights are now adjudicated, emphasizing historical context over contemporary policy justifications, a move that has invigorated gun rights advocates and frustrated gun control proponents across the country.

The Lingering Shadows of Licensing: Rural Permits and “Subterfuge”

While striking down the urban open-carry ban, the Ninth Circuit panel did not invalidate California’s open-carry licensing scheme for less populous counties. The state law 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 issuing county (Cal. Penal Code §§ 26150(c)(2), 26155(c)(2)). The panel held that plaintiff Baird had waived his “as-applied” challenge to this rural licensing system, and furthermore, that a “facial challenge” to its 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,” meaning that a general desire for self-defense is sufficient to obtain a permit, rather than requiring an applicant to demonstrate “good cause” or special need, which is characteristic of “may-issue” regimes. However, this formal classification masks a deeper, more troubling issue highlighted by Judge Kenneth K. Lee in his concurrence.

Joined by Judge Lawrence VanDyke, Judge Lee sharply criticized what he described as California’s “subterfuge” in administering its open-carry licensing system. Lee pointed to the state’s own acknowledgement during litigation that it had “no record of even one open-carry license being issued.” This startling admission, cited from California’s own representations, suggests a significant disconnect between the formal availability of permits under state law and their practical accessibility. Judge Lee’s critique implies that while the law may appear “shall-issue” on paper, its implementation has effectively rendered it a de facto ban, misleading residents about their ability to obtain such permits. This raises serious questions about the transparency and fairness of California’s licensing processes, even in areas where open carry is technically permitted.

A Divided Bench: The Dissent’s Perspective

The 2-1 split in the Ninth Circuit panel underscores the contentious nature of Second Amendment jurisprudence. Judge N. Randy Smith, in a separate opinion, concurred in part but dissented from the majority’s central holding regarding the urban open-carry ban. Judge Smith argued that open carry is not conduct covered by the Second Amendment’s plain text, particularly when a state permits concealed carry through a licensing regime.

His argument posits that if citizens can exercise their right to self-defense by carrying firearms concealed—a method California does allow through permits—then the state may constitutionally restrict open carry in more populous counties. This perspective suggests that the Second Amendment protects the right to bear arms generally, but not necessarily the specific manner in which those arms are borne in public. Judge Smith’s dissent reflects a common argument among those who believe that states should retain significant authority to regulate the public display of firearms, especially in densely populated areas where the visibility of weapons might contribute to public anxiety or heighten the risk of conflict.

This disagreement among the judges highlights the ongoing debate within the judiciary regarding the scope and limits of the Second Amendment, particularly in the wake of the Bruen decision. The interpretation of “historical tradition” itself remains a point of contention, with judges often reaching different conclusions based on their reading of historical sources and legal precedents.

The Ninth Circuit’s ruling is a moment of profound consequence for California, gun owners, and gun control advocates alike. While the state may pursue further appeals, including potentially seeking an en banc review by the full Ninth Circuit or appealing to the Supreme Court, the immediate effect is a seismic shift in the legal landscape. The decision will undoubtedly ignite further legal battles and legislative efforts, as California grapples with balancing constitutional rights with its long-held commitment to public safety. The question now looms large: how will this ruling reshape the everyday reality of gun ownership and public safety in the Golden State, and what precedent does it set for other states contemplating similar restrictions?

This ruling by the Ninth Circuit represents a critical juncture in the ongoing national debate over gun rights, unequivocally demonstrating the far-reaching implications of the Supreme Court’s Bruen decision. By prioritizing historical tradition over contemporary legislative intent, the court has not only dismantled a significant portion of California’s gun control architecture but has also underscored the judiciary’s increasingly assertive role in defining the boundaries of the Second Amendment, setting a powerful precedent that will resonate across the country.