Court Decision Shredding California’s Open Carry Ban Could Have National Implications

The Ninth Circuit’s recent decision in Baird v. Bonta could have national implications on the right to carry going forward, both in the handful of states where openly carrying firearms is prohibited as well as several blue states where open carry is allowed without the need for a permit. 

The majority opinion, authored by Judge Lawrence Van Dyke, held that California’s outright ban on open carry in counties where more than 200,000 people live is a violation of the Second Amendment. As Van Dyke wrote:

For most of American history, open carry has been the default manner of lawful carry for firearms. It remains the norm across the country—more than thirty states generally allow open carry to this day, including states with significant urban populations. Indeed, several of our Nation’s largest cities and states recently returned to unlicensed open carry by explicitly authorizing it. For example, Texas reauthorized open carry without a license in 2021. Kansas likewise transitioned back to allowing open carry without a permit in 2015. And other states that placed restrictions on open carry in recent decades have also removed those burdens. 

Van Dyke went on to point out that California itself had no laws restricting openly carried firearms until the late 1960s, when the Mulford Act became law. Even then, individuals could openly carry an unloaded firearm without the need for a permit, but that changed in 2012 when lawmakers adopted the bizarre regimen challenged in Baird; the outright ban on open carry in counties with more than 200,000 residents, while residents in counties with less than 200,000 people could apply for a permit that allowed them to openly carry only in the county where the permit was issued. 

While the majority opinion ruled that the open carry ban in effect for 95% of California’s population is a clear violation of the Second Amendment, the panel also concluded that the plaintiff’s facial challenge to the supposedly “shall issue” system of licensing open carry in rural counties failed, and since he didn’t raise an as-applied challenge that framework will remain in place for now.

California Attorney General Rob Bonta is likely going to request an en banc review of the decision by a broader panel of Ninth Circuit judges, citing arguments raised in the dissenting opinion that states can ban open carry so long as it allows for concealed carry (or vice versa). It remains to be seen whether the Supreme Court would agree with that argument, but Van Dyke did an admirable job of pointing out that, from a historical perspective, the national tradition of openly carrying firearms is an inherent part of our right to keep and bear arms. 

By leaving the state’s regulations on rural open carry intact, though, the Baird decision has opened the door for blue states to impose additional restrictions on open carry. Just three states (California, New York, and Illinois) and the District of Columbia ban open carry outright, while six states with Democrat-majorirty legislatures currently allow for open carry without any kind of permit at all. 

It’s not difficult to imagine lawmakers in states like Washington, Delaware, New Mexico, and Virginia deciding to make it more difficult to openly carry by imposing the same permitting restrictions that currently exist for concealed carry. The majority opinion in Baird suggests that, so long as an open carry permitting process is “shall issue,” it won’t conflict with the Bruen decision or the text, history, and tradition of the Second Amendment and the right to bear arms. 

Openly-carried firearms are a non-issue in virtually every state where it’s allowed, but I wouldn’t be surprised if anti-gun Democrats looking for new ways to infringe on our Second Amendment rights use Baird as the impetus to impose California-style licensing restrictions on the practice. The majority opinion is still very much a win for California gun owners, but it could also be used to advance an anti-gun agenda in the six Democrat-controlled states where open carry is currently legal without the need for a government-issued permission slip. 

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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