A federal appeals court ruled Friday 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 runs afoul of the Supreme Court’s expanded Second Amendment test, which requires gun control measures be consistent with the nation’s historical tradition of firearm regulation.
U.S. Circuit Judge Lawrence VanDyke, writing for the majority, said it was a straightforward case since 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 banned open carry in counties where the population exceeds 200,000 people, which covers where the vast majority of Californians live.
Mark Baird originally sued over the law in 2019. His case has zigzagged through the courts for years and was bolstered by the Supreme Court’s expansion of Second Amendment rights in 2022.
That expansion has led judges to strike down an array of gun laws in states across the country.
The Supreme Court is poised 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.
“In our Nation’s history and tradition, open carry was widely recognized as being central to the Second Amendment right,” VanDyke wrote in invalidating California’s law. “A ban on that which is at the core of the Second Amendment is not a ‘minimal burden’ on the Second Amendment right.”
VanDyke has sided against the state on its gun restrictions before. Last year, VanDyke 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. President Trump appointed both 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.”
But the court kept the open carry licensing regime for small counties intact and ruled Baird had waived his right to raise some of those arguments.
In dissent, U.S. Circuit Judge N. Randy Smith said his colleagues had misread the Supreme Court’s Second Amendment expansion. Smith was appointed by former President George W. Bush.
“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,” he wrote.
