A federal appeals court has ruled that California’s ban on openly carrying firearms in most areas of the state is unconstitutional. The decision, issued on September 29, 2023, by the 9th U.S. Circuit Court of Appeals, found that the restriction violates the Second Amendment. The court’s 2-1 ruling supports gun owner Mark Baird, who challenged the state’s prohibition in counties with populations exceeding 200,000 residents. Notably, approximately 95% of Californians reside in these counties, which have historically faced some of the strictest gun-control measures in the country.
The ruling partially reverses a 2023 lower court decision that upheld the ban, which was first challenged in 2019. Although the panel agreed with Baird, it rejected his challenge regarding licensing requirements in smaller counties that can issue open-carry permits. Circuit Judge Lawrence VanDyke, appointed by former President Donald Trump, wrote for the majority, stating that California’s law could not withstand scrutiny under the U.S. Supreme Court’s significant 2022 ruling in New York State Rifle & Pistol Association v. Bruen.
According to VanDyke, the ruling established a new framework requiring gun restrictions to align with the historical tradition of firearm regulation in the United States. He highlighted that open carry is a practice that predates the ratification of the Bill of Rights in 1791. “This case unquestionably involves a historical practice — open carry — that predates ratification,” VanDyke noted. More than 30 states currently allow open carry, and California itself permitted the practice until 2012.
Judge N. Randy Smith, appointed by former President George W. Bush, dissented, arguing that all of California’s restrictions comply with the Supreme Court’s standards. His dissent emphasized that the majority decision only partially addressed the case.
The ruling represents a significant shift in California’s approach to gun regulations and comes amid a wave of legal challenges to firearm laws following the Bruen decision. This landmark ruling invalidated New York’s concealed-carry restrictions and has prompted similar lawsuits targeting state and local gun regulations across the country.
California’s open-carry ban applied specifically to counties with populations over 200,000, effectively covering nearly all urban and suburban regions. While residents in smaller counties could apply for open-carry permits, the appeals court determined that this distinction violated the constitutional rights of most Californians.
Supporters of the ban argued that limiting open carry would reduce intimidation and assist law enforcement in distinguishing lawful gun owners from potential threats. Despite the court’s ruling, California will continue to enforce other gun-control measures, including background checks, waiting periods, and bans on certain assault-style weapons.
In September 2023, another panel of the 9th Circuit upheld a state law prohibiting individuals with concealed-carry permits from bringing firearms into designated “sensitive places” such as bars, parks, and museums. VanDyke’s opinion underscored that the Supreme Court’s framework allows little room for modern bans on practices that are deeply rooted in American history.
“Open carry is not a recent innovation,” he stated. “It is a tradition that the Constitution protects.”
The implications of this ruling may lead to further appeals. California could request a review from the full 9th Circuit or petition the Supreme Court for clarification on the extent of state authority in regulating public carry. For now, the decision prohibits California from enforcing its open-carry ban in most counties, marking a notable change in a state recognized for its stringent gun regulations.
