Very big win, especially coming from the Ninth Circuit.
On Friday, Jan. 3, a divided three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that California’s ban on open carry in counties with a population of greater than 200,000 violates the Second Amendment. This means that California, at least for the moment, is an unlicensed open carry state in the populous counties where 95% of its residents live. A separate California law that theoretically allows open carry in counties with a population of fewer than 200,000 pursuant to a license was allowed to stand, notwithstanding the state’s inability to document even one such license being issued pursuant to its terms. That issue, however, was not preserved for appeal. The case is Baird v. Bonta.
The ruling came in a scholarly opinion by Judge Lawrence VanDyke, who was joined in the majority by Judge Kenneth K. Lee, who wrote a concurrence. Judge N. Randy Smith also wrote separately, dissenting from the majority’s holding. Judge Smith would have held that the availability of a [nominally] shall-issue concealed carry option cured any constitutional defect with generally banning open carry.
The majority grouped cases under the Supreme Court’s precedent in New York State Rifle & Pistol Association v. Bruen into two major categories. One category required a “straightforward” application of Bruen’s historical standard in the case of “firearms regulations [that] seek to address general societal problems that have persisted since the Founding” (internal quotation marks omitted). On the other hand, “cases that implicate ‘unprecedented societal concerns or dramatic technological changes,’” might require a more “nuanced approach” that requires “courts to take a closer look at ‘how and why [historical] regulations burden a law-abiding citizen’s right to armed self-defense.’”
