A US appeals court on Friday ruled that California’s ban on openly carrying firearms in most parts of the state was unconstitutional.
A panel of the San Francisco-based ninth US circuit court of appeals sided 2-1 with a gun owner in ruling that the state’s prohibition against open carry in counties with more than 200,000 people violated the US constitution’s second amendment right to keep and bear arms.
About 95% of the population in California, which has had some of the nation’s strictest gun-control laws, live in counties of that size.
US circuit judge Lawrence VanDyke, who was appointed by Donald Trump, said the Democratic-led state’s law could not stand under the US supreme court’s 2022 landmark gun rights ruling.
That decision, New York State Rifle & Pistol Association v Bruen, was issued by the court’s 6-3 conservative super-majority and established a new legal test for firearm restrictions. The test said guns must be “consistent with this nation’s historical tradition of firearm regulation”.
VanDyke, whose opinion on Friday was joined by another Trump appointee, said the latest case “unquestionably involves a historical practice – open carry – that predates ratification of the Bill of Rights in 1791”.
The state first banned the right to carry firearms in public with the Mulford Act of 1967, in part as a reaction to armed patrols by the Black Panther party, whose members went to the state capitol holding pistols, rifles and revolvers to protest the legislation. VanDyke cites this law as an example of the “racial animus” that the state’s current approach to open carry is born from.
He noted that more than 30 states generally allow open carry. California itself allowed citizens to carry unloaded handguns openly and holstered for self-defense without penalty until 2012, when the state outlawed carrying unloaded handguns, he said.
“The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition,” VanDyke said.
The ruling partially reversed a 2023 decision by a lower-court judge who had rejected a 2019 challenge to the law by gun owner Mark Baird.
While the appeals court largely sided with Baird, it rejected his related challenge to California’s licensing requirements in counties with fewer than 200,000 residents, which may issue open-carry permits.
Senior US circuit judge N Randy Smith, who was appointed by George W Bush, dissented, saying his colleagues “got this case half right” as all of California’s restrictions complied with the supreme court’s ruling.
Baird’s lawyer had no immediate comment. Spokespeople for the California attorney general, Rob Bonta, whose office defended the state’s ban, did not respond to a request for comment.
The 2022 supreme court ruling has prompted court cases nationwide challenging modern firearm restrictions, including in California. In March, the US supreme court will hear arguments in United States v Hemani, a case that will determine whether a federal law that prohibits gun possession by marijuana users violates the second amendment.
A ninth circuit panel in September 2024 upheld a California law that prohibits people with concealed-carry permits from carrying firearms at several categories of “sensitive places” like bars, parks, zoos, stadiums and museums.
