Lead: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on Friday that California’s broad prohibition on openly carrying firearms in most counties is unconstitutional, finding it conflicts with the Second Amendment as interpreted by the Supreme Court in 2022. The panel voted 2-1 for gun owner Mark Baird, who challenged the state restriction that applies in counties with populations above 200,000. The decision applies to the larger counties that contain roughly 95% of California’s population and partially reverses a lower-court ruling from 2023. California officials said they are reviewing options, including appeal.
Key Takeaways
- The Ninth Circuit panel ruled 2-1 that California’s ban on open carry in counties with more than 200,000 residents violates the Second Amendment under the Supreme Court’s 2022 Bruen framework.
- About 95% of California’s population lives in counties exceeding the 200,000-resident threshold targeted by the ban.
- Judge Lawrence VanDyke, a Trump appointee, wrote the majority opinion and was joined by another Trump appointee; Senior Judge N. Randy Smith dissented.
- The appeals court reversed parts of a 2023 lower-court decision rejecting Mark Baird’s 2019 challenge but left intact licensing requirements for smaller counties.
- The panel noted that open carry has historical roots in early American practice and observed that more than 30 states currently permit open carry in general.
- California Attorney General Rob Bonta’s office, which defended the ban, said it is considering legal options to defend the state’s gun regulations.
- The ruling arrives amid a wave of post-Bruen litigation contesting modern firearm restrictions nationwide, including recent Ninth Circuit decisions about sensitive-place limits.
Background
California has long been among the states with the most restrictive gun laws in the U.S., implementing a series of limits on possession, sales and public carrying of firearms. In 2012 the state tightened rules around public carry, and over the past decade several statutes and local ordinances have created different regimes for concealed and open carry depending on county population and permitting schemes. The legal landscape shifted in 2022 when the U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen established a new test for assessing firearm regulations: modern restrictions must be consistent with the Nation’s historical tradition of firearm regulation.
That Bruen decision, issued by a 6-3 conservative majority, has spawned many challenges to state and local gun rules by requiring courts to examine historical analogues rather than using means-end scrutiny such as strict or intermediate scrutiny. Plaintiffs have pressed challenges in multiple circuits, and lower courts have split on how to apply historical analysis to diverse modern regulations. Stakeholders in California include state officials defending public-safety-focused laws, gun owners challenging limits on carrying, public-health and law-enforcement groups pressing for restrictions, and a wide public that largely lives in higher-population counties affected by the ban.
Main Event
The appeal stems from Mark Baird’s 2019 lawsuit challenging a California statute that generally forbids openly carrying a firearm in counties with populations above 200,000 while allowing licensing regimes in smaller counties. A federal district judge rejected Baird’s claim in 2023, but a three-judge Ninth Circuit panel revisited the case this year. On Friday the panel, in a 2-1 decision, found the categorical ban incompatible with Bruen’s historical-tradition inquiry and ruled for Baird on that claim.
Judge Lawrence VanDyke, writing the majority opinion, emphasized historical practice and noted that open carry has antecedents predating the Bill of Rights and that many states currently permit open carriage of firearms. The opinion pointed to the fact that California allowed openly holstered handguns for self-defense until 2012 and to broader historical evidence the majority considered relevant under Bruen. The panel, however, did not accept every challenge Baird raised: it upheld California’s licensing requirements for open carry in counties with fewer than 200,000 residents.
Senior Judge N. Randy Smith dissented, arguing the court erred in part and maintained that California’s restrictions comply with the Supreme Court’s framework. California Attorney General Rob Bonta’s office issued a statement saying it was reviewing the decision and remains committed to defending the state’s gun laws. The ruling leaves in place some limits and creates an immediate path for further appellate review or possible Supreme Court review.
Analysis & Implications
The Ninth Circuit’s decision applies Bruen’s historical-tradition test in a way that privileges historical acceptance of open carry as a constitutional baseline. If upheld on further review, the ruling would significantly constrain California’s ability to ban open carry in its most populous counties, affecting law enforcement practices and permitting procedures across a state that contains nearly one-third of the nation’s population. The majority’s reliance on historical analogues will likely be a focal point for any subsequent appeals, with opponents arguing that historic practice is not a one-to-one guide to modern public-safety regulation.
For state lawmakers and regulators, the decision raises practical questions about how to rewrite or justify statutes to survive Bruen review: whether to craft narrowly tailored restrictions tied to demonstrable risks, to expand licensing schemes, or to seek other regulatory tools such as location-based prohibitions. California’s existing regime for smaller counties — where open-carry permits may be issued — survived this challenge, which further complicates a uniform regulatory response across counties of widely differing population sizes.
Nationally, the ruling adds to a body of appellate jurisprudence that lower courts and state governments will cite as they navigate post-Bruen litigation. Other circuits have reached different conclusions on aspects of open-carry and sensitive-place rules; those splits increase the likelihood that the Supreme Court could take up another gun-rights case to clarify Bruen’s application. Meanwhile, public-safety advocates and law-enforcement agencies will be voicing concerns about operational impacts, while gun-rights groups will point to this decision as confirmation of broader Second Amendment protections.
Comparison & Data
| Metric | Fact |
|---|---|
| Population affected | ~95% of California residents live in counties >200,000 people |
| Ninth Circuit vote | 2–1 for the challenger (Mark Baird) |
| States allowing open carry | More than 30 states generally permit open carry |
| Key precedent | New York State Rifle & Pistol Association v. Bruen (2022) |
The table summarizes the central numerical and legal touchpoints for the decision. These figures contextualize why a county-size threshold in California translates into an effect on nearly the whole state and why appellate rulings in the Ninth Circuit carry substantial practical weight.
Reactions & Quotes
“The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition,”
Judge Lawrence VanDyke, Ninth Circuit (majority opinion)
VanDyke’s remark encapsulated the majority’s lead legal premise: that historical practice supports a constitutional protection for public, open carriage of firearms absent historically grounded regulation.
“The court got this case half right,”
Senior Judge N. Randy Smith (dissent)
Judge Smith’s terse dissent argued that the majority failed to give proper weight to modern regulatory interests and that California’s restrictions can be reconciled with Bruen when viewed in full context.
“We are committed to defending California’s common sense gun laws,”
Office of California Attorney General Rob Bonta (spokesperson)
The Attorney General’s office signaled an intent to consider further legal steps; that statement frames likely next moves including seeking an en banc Ninth Circuit rehearing or taking the case to the U.S. Supreme Court.
Unconfirmed
- Whether California will immediately request an en banc Ninth Circuit rehearing or file a stay pending appeal is not yet confirmed and will depend on decisions by the Attorney General’s office.
- It remains unclear whether the Supreme Court will take up the case; no certiorari petition has been filed as of this writing.
- Practical enforcement changes — such as whether local law enforcement will alter patrol or permitting practices before final appellate resolution — are not uniformly confirmed across counties.
Bottom Line
The Ninth Circuit’s ruling narrows one dimension of California’s open-carry regime by holding that a near-total ban in larger counties cannot survive Bruen’s historical-tradition test. The decision affects counties that encompass the vast majority of the state’s population and will likely prompt further litigation as state officials weigh appeals and possible legislative responses.
Because Bruen relies on historical analogues, outcome predictability in future challenges remains limited and will depend on how higher courts interpret historical evidence and the scope of permissible modern regulation. Observers should expect rapid legal maneuvering — including potential emergency applications and appeals to the Supreme Court — and continued debate about how to balance constitutional rights with public-safety concerns.
Sources
- NBC News — Media report summarizing the Ninth Circuit decision and reactions.
- New York State Rifle & Pistol Association v. Bruen (2022) opinion — U.S. Supreme Court (official opinion used as legal precedent).
- California Department of Justice: News — Official statements and press releases from the Attorney General’s office (official source for state responses).