In a surprising victory for gun advocates last week, a federal court struck down California’s longstanding ban on the open carrying of firearms. The decision appears to be a seismic shift for the Golden State, yet the practical effect on gun carrying in cities such as Los Angeles may be far less dramatic. The true danger of the court’s ruling lies in its rigid legal reasoning — which, if taken seriously, would cut out the heart of the American gun safety regime.
The 2-1 decision from the 9th Circuit Court of Appeals leaned heavily on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Assn. vs. Bruen, which dictates that any gun regulation must be “consistent with this nation’s historical tradition” of gun laws. Writing for the majority in last week’s ruling, Judge Lawrence VanDyke argued that because open carry was not prohibited in early America, California cannot ban it today. Dismissing the state’s public safety arguments, the court insisted that unless a similar ban on open carry existed in the 18th or 19th centuries, the modern law is a violation of the 2nd Amendment.
As a result of this decision, Californians may soon be able to apply for a permit to carry a firearm openly — much as they can today apply for a permit to carry one concealed. Angelenos and San Diegans will be able to carry handguns on their hips as they stroll through town, as if they were looking for a shootout in a Sergio Leone western.
Despite the legal victory for gun rights advocates, California is unlikely to see a sudden surge of open carry. For most gun owners, carrying a firearm openly is a social and logistical headache. Unlike concealed carry, which allows an armed citizen to move through the world unnoticed, open carry in a major city is inevitably provocative. It invites unwanted attention, public confrontation and immediate exclusion from private property.
Major American retailers have already made their stance clear. Following several high-profile shootings, chains such as Starbucks, Target, Walmart, CVS and Walgreens have all requested that customers refrain from openly carrying firearms in their stores, even in states where it is legal. For most gun owners, the “right” to open carry is effectively checked by the reality that they would be asked to leave their local grocery store or coffee shop if they exercised that right.
Even if it does not lead to widespread changes in public carry of firearms, the broad ruling of the federal court could have a huge effect on gun laws more generally. Indeed, if the court’s reasoning in this case is applied to widely popular, mainstream laws such as background checks and felon bans, those laws would have to be overturned too.
The court demands that, in order to ban open carry today, California must show a “history and tradition” of earlier bans on open carry. This the state cannot do; for most of American history, states banned concealed carry but permitted open carry. Although disclaiming any such intent, the federal court here required a “historical twin” — that is, previous legislation that banned open carry.
Background checks, the primary tool we now use to prevent criminals and the mentally ill from buying firearms, would similarly be unconstitutional under this logic. There were no background checks in the 1700s or 1800s. Background checks are a modern invention: The federal Brady Handgun Violence Prevention Act wasn’t adopted until 1993. Because James Madison didn’t have a computer to check criminal records, the government might lack the authority to require that today.
The same applies to laws prohibiting felons from possessing firearms. In the 1700s and 1800s, there were no laws on the books banning felons from having guns. The first federal ban was enacted in 1938.
If the courts continue to demand 18th century precedents for 21st century reforms, we are heading toward a legal landscape where even the most basic, popular and life-saving regulations are stripped away because they didn’t exist in the era of the musket.
Of course, this ruling may be overturned in time. The Supreme Court’s most recent 2nd Amendment ruling upheld a ban on domestic abusers possessing firearms, even though there were no such laws in early America. The justices said the domestic abuser ban fit in a larger historical tradition of banning dangerous people from guns — explicitly rejecting the idea that lawmakers today must show a “historical twin.”
Regardless of the ultimate outcome here, the 9th Circuit’s ruling illustrates the chaos created by the Bruen case and its requirement that gun laws be consistent with the laws of two centuries ago. This history and tradition test has caused a mess in lower courts across the country, with judges reaching conflicting conclusions about the constitutionality of ghost guns, age restrictions and even bans on firearms in post offices.
The reason the justices adopted the history and tradition test, they said, was to minimize judicial activism and prevent judges from imposing their views on the Constitution. But the exact opposite has happened. The ambiguity of the required historical analysis — find a similar law, but it doesn’t have to be a twin — has opened the door for more partisan gun rulings than ever before. Republican-appointed judges tend to strike down gun laws; Democratic-appointed judges tend to uphold them.
The Supreme Court may yet salvage California’s open-carry ban. But the threat is one of its own making: a bizarre and unprecedented test that requires today’s gun laws to be sufficiently similar to the gun laws of a long bygone era, when both society and gun technology were very different.
Adam Winkler is a professor of law at UCLA School of Law and the author of “Gun Fight: The Battle Over the Right to Bear Arms in America.”
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