It’s self-defeating to be skeptical of every victory or even sliver of good news, but gun rights advocates are accustomed to tempering their expectations. So, while Friday’s ruling striking down California’s nearly blanket ban on open carry was a welcome development, the mood was cautiously optimistic.
A three-judge panel of the Ninth Circuit Court of Appeals determined that the Golden State’s prohibition of open carry in counties with populations exceeding 200,000 was unconstitutional.
The state’s throwing a bone at the few Californians who live in rural areas did not in any way satisfy the demands of the Second Amendment. But will the ruling hold?
Many fear last week’s favorable ruling will not stand
It is nearly certain that officials will seek an en banc review before the entire Ninth Circuit. And these judges have an established track record of opposition to fundamental gun rights.
California Rifle & Pistol Association President Chuck Michel called the appeals court decision a “very significant opinion.” However, he added that he expects state leaders to seek a full appeals court review.
In Baird v. Bonta, Judge Lawrence VanDyke skewered the state for its broad ban on open carry, which has no precedent in the Founding Era.
“And in any event, courts cannot use the ‘nuanced approach’ to analogize at levels of generality so high that they can bless bans on conduct that was indisputably unregulated and widespread both in 1791 and 1868,” VanDyke declared. “We decline California’s invitation to open that Pandora’s box.”
California’s leadership issued a dire warning over the Ninth Circuit’s decision
The plaintiffs challenged the 2011 state law that banned open carry for 95% of the population. It was enacted when some became alarmed at the number of residents fully exercising their rights.
VanDyke used the Supreme Court’s 2022 Bruen decision to justify the panel’s determination.
“The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition,” he wrote. “It was clearly protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment.”
The jurist noted that California’s argument for banning most open carry was that such activities could cause panic and create an unsafe environment. These are hardly new challenges, VanDyke explained, and they have been faced and dealt with since the earliest days of the Republic.
The AG’s office argued that technological advancements unforeseen by the Founding Fathers necessitate such modern restrictions. Because modern firearms are so dangerous, the state said that it must infringe on the right to keep and bear arms for public safety.
VanDyke shot this position down by noting that the U.S. Supreme Court already rejected this line of reasoning. “This is a case about a practice—open carry—that indisputably dates back to the earliest days of the Republic. If this is somehow a case about new technology, then every Second Amendment case is a case about new technology.”
Circuit Judge Randy Smith dissented, asserting that “a state may not prohibit the public carriage of firearms by eliminating both open and concealed carry.”
He added, however, that states may “eliminate one manner of carry to protect and ensure the safety of its citizens, as long as they are able to carry in another manner.”
Meanwhile, California’s stridently anti-Second Amendment governor blamed “activists” for attempting to erase the state’s peace and tranquility.
Gavin Newsom’s (D) office released a statement accusing gun rights supporters of wanting “gunslingers” to rule the streets and to “return to the days of the Wild West.”
If gun rights opponents did not have cliches and half-truths, they would have nothing to say.
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