Appeals Court Overturns California's Open Carry Ban

Table of Contents

A Landmark Ruling on Open Carry in California

A federal appeals court made a significant decision on Friday, ruling that California’s open carry ban in most parts of the state infringes on the constitutional right to keep and bear arms. The 9th U.S. Circuit Court of Appeals panel voted 2-1 that the ban violates the Supreme Court’s expanded Second Amendment test, which requires gun control measures to be consistent with the nation’s historical tradition of firearm regulation.

U.S. Circuit Judge Lawrence VanDyke, writing for the majority, stated that the case was straightforward because open carry wasn’t banned at the nation’s founding. “Quite the opposite: in antebellum America it was clear that open carry was widely seen as entitled to special constitutional protection,” VanDyke wrote.

California has banned open carry in counties where the population exceeds 200,000 people, which covers where the vast majority of Californians live. This law has been challenged by individuals like Mark Baird, who originally sued over the law in 2019. His case has gone through the courts for years and was strengthened by the Supreme Court’s expansion of Second Amendment rights in 2022.

This expansion has led judges to strike down various gun laws across the country. The Supreme Court is set to provide further guidance on the bounds of its new test in two Second Amendment cases this term, including when it reviews another 9th Circuit decision upholding a Hawaii gun law.

VanDyke emphasized that in the nation’s history and tradition, open carry was widely recognized as being central to the Second Amendment right. “A ban on that which is at the core of the Second Amendment is not a ‘minimal burden’ on the Second Amendment right,” he wrote in invalidating California’s law.

VanDyke has previously opposed the state on its gun restrictions. Last year, he caused a stir when he dissented from a decision upholding California’s large-capacity magazine ban via a firearms demonstration video.

On Friday, VanDyke was joined in the majority by U.S. Circuit Judge Kenneth Lee. Both judges were appointed by President Trump during his first term.

In a separate opinion, Lee accused California of misleading citizens in small counties, where the ban doesn’t apply, about how they can receive an open carry permit. “But that appears to be the very point—California tries to hide the fact that citizens in those counties have a right to open carry their weapon under the law,” Lee wrote. “Our constitutional rights, however, should not hinge on a Where’s Waldo quiz.”

However, the court kept the open carry licensing regime for small counties intact and ruled that Baird had waived his right to raise some of those arguments.

In dissent, U.S. Circuit Judge N. Randy Smith argued that his colleagues had misread the Supreme Court’s Second Amendment expansion. Smith, appointed by former President George W. Bush, wrote, “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.”