A federal appellate court ruled Friday that California cannot ban people from openly carrying firearms because the prohibition was an unconstitutional violation of the Second Amendment.
The split decision by a three-judge panel of the Ninth Circuit Court of Appeals said the state’s ban ran afoul of a 2022 Supreme Court ruling that required courts to evaluate gun laws based on the country’s “historical tradition of firearm regulation.”
Because openly carrying weapons was “a historical practice” in the 18th century, it cannot be outlawed by today’s lawmakers, Judge Lawrence VanDyke wrote in the court’s 2-to-1 majority opinion.
“The historical record makes unmistakably plain that open carry is part of this nation’s history and tradition,” Judge VanDyke wrote. “It was clearly protected at the time of the founding and at the time of the adoption of the 14th Amendment.”
The case was filed in 2019 by Mark Baird, a resident of Siskiyou County, a rural area in Northern California, who sought to openly carry his gun locally and elsewhere in the state. A lower-court judge initially sided with the State of California, but Mr. Baird’s lawyers argued to the Ninth Circuit that the decision had conflicted with the 2022 Supreme Court ruling.
California law prohibits people from openly carrying firearms in counties with at least 200,000 residents, which amounts to a ban for 95 percent of the state’s population. California allows residents of less populated counties to apply for an open-carry license, but the process has been so convoluted that it has been impossible for anyone to obtain a license, the court found.
State lawmakers passed the current open-carry ban in 2011 partly in response to a growing movement of gun owners who wanted to openly display their unloaded firearms as they went about their everyday lives. Law enforcement groups pushed for the law because they felt officers were placed in precarious situations when they tried to determine whether people showing their weapons were threatening or law-abiding.
The two Ninth Circuit judges who ruled against the state, Judge VanDyke and Judge Kenneth K. Lee, were appointed by President Trump during his first term.
The dissenting judge on the panel said that California’s ban on open carry was constitutional because the state allowed residents to carry firearms with a concealed-weapons permit.
“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,” wrote Judge N. Randy Smith, who was appointed by President George W. Bush.
Gov. Gavin Newsom of California criticized the decision, calling the two judges “Republican activists” who wanted to “return to the days of the Wild West.” He expressed confidence that the ruling would be overturned.
The California Department of Justice is “reviewing the opinion and considering all options,” said Joanne Adams, a spokeswoman for the agency.
“We are committed to defending California’s common-sense gun laws,” she added.
Kostas Moros, director of legal research and education with the Second Amendment Foundation, praised the decision on X but said that he expected a larger panel of Ninth Circuit judges to override the ruling through an en banc rehearing process.
“The Ninth Circuit will still reverse it of course, but they will have to ignore Bruen and history (AGAIN) to do so,” Mr. Moros wrote, referring to the 2022 Supreme Court case, named New York State Rifle & Pistol Association Inc. v. Bruen.
Adam Winkler, a constitutional law professor at the University of California, Los Angeles, said the ruling from the Ninth Circuit “pushes the boundaries of the Second Amendment” by recasting the prior interpretation that states can bar either open or concealed carry, as long as they don’t prohibit both.
He said the ruling was emblematic of the confusing state of U.S. gun laws since the Supreme Court’s 2022 decision required analyzing each one to find a historical antecedent, and he also predicted that the decision would be overturned on appeal. In the meantime, Mr. Winkler said that he thought the ruling was unlikely to change habits in most of California, where it is not customary to see people wearing firearms in the open.
“It might not have that big of an effect on the ground in terms of carrying practices in California. However, it certainly is a very big, broad, bold ruling on the scope of the Second Amendment,” Mr. Winkler said.
Laurel Rosenhall is a Sacramento-based reporter covering California politics and government for The Times.
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