A majority panel of the U.S. 9th Circuit last week sided with a man's civil rights lawsuit challenging California’s restrictions on the open carry of firearms.
Siskiyou County resident Mark Baird cited Second and Fourteenth Amendment grounds in his challenge to the state's 2012 statute that outlaws the open carry of a loaded firearm in counties with a population greater than 200,000-- a ban covering some 95 percent of the state's population. Residents of more rural counties, such as Baird, can theoretically apply for an open-carry permit that, if granted, is only good for their county.
He filed his lawsuit in 2019 only after he tried on multiple occasions to apply for an open-carry license in Siskiyou County but was advised by the licensing authority in his county that no such licenses would be issued. His case found little love from a lower court, kicking it up on appeal to the 9th Circuit, with Baird asking the court to restore to the "citizens of California … the right to carry a handgun open and exposed on one’s person for self-defense."
The panel's majority, citing the historical tradition of firearm regulation element of the Supreme Court's 2022 Bruen case, found for Baird, citing the current law didn't square with California's past, describing open carry as "unquestionably part of our Nation’s history and tradition of the right to keep and bear arms.”
Judge Kenneth K. Lee, joined by Judge Lawrence VanDyke, pointed out that the law lacks any sort of historical analog:
For the first 162 years of its history, open carry was a largely unremarkable part of daily life in California. From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California (open or concealed) was entirely unregulated. And when California first deviated (or considered deviating) from this practice, its reasons for doing so were less than morally exemplary.
The Mulford Act, signed by then-Governor Ronald Reagan, was a legislative response to the
Black Panther Party’s activities, which included openly carrying firearms to protest police behavior in African American communities. Before that, the state considered a carry ban in 1856 that was narrowly intended to apply only to "Mexicans."
While 46 states allow for open carry, California has been an outlier going back to the Mulford Act.
In his dissent, Judge N. Randy Smith argued that California's ban on open carry is constitutional because California has a concealed carry scheme. Smith is a 2007 appointment to the federal bench by President George W. Bush. Lee and VanDyke, who sided with Baird, were appointed by President Trump, with the latter jurist well known for his firearms knowledge.
California Attorney General Rob Bonta is expected to seek further appeal in the case.
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