California’s long-running ban on openly carrying firearms is once again under legal attack, with major gun-rights organizations urging the Ninth Circuit to strike the law down as unconstitutional.
On May 6, the Second Amendment Foundation (SAF) and its partners—the California Rifle & Pistol Association (CRPA), Minnesota Gun Owners Caucus (MGOC) and the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA)—filed an amicus brief with the U.S. 9th Circuit Court of Appeals urging the court to strike down California’s ban on the open carry of firearms.
At the center of the case is a simple constitutional question: can a state prohibit open carry while also heavily restricting concealed carry?
The brief, filed in the case Baird v. Bonta, argues: “Historical precedent demonstrates a longstanding tradition of lawful open carry predating the founding of the United States. Accordingly, the Second Amendment protects the right to open carry arms for lawful purposes. And through both the plain text of the Second Amendment as well as the choices of Americans in the modern era, concealed carry is protected as well, despite it once being commonly prohibited. Neither form of carry may be banned.”
The brief also argues that the Second Amendment protects the right to open carry just as it protects the right to concealed carry.
“The Second Amendment refers to keeping and bearing arms as the operative rights it protects,” the brief argues. “Bearing arms, whether openly or concealed, is therefore covered by the plain text of the Second Amendment.
Indeed, the Appellant’s proposed course of conduct here does not differ one iota from the Bruen plaintiffs: ‘carrying handguns publicly for self-defense.’”
The case mostly prevailed before a three-judge panel, but that victory was vacated. Now, the case will be reheard en banc.
“The plain text of the Second Amendment protects the right to bear arms – openly or concealed – and open carry has been the default manner of lawful carry for most of American history,” Kostas Moros, SAF director of legal research and education, said in a news release announcing the court filing.
“California’s ban has no foundation in our nation’s tradition, and this Court should reaffirm that open carry is protected just as the Founders and generations of Americans understood it to be. As our brief argues, neither open nor concealed carry may be banned today.”
Alan Gottlieb, SAF founder and executive vice president, said the case presents another clear opportunity for the 9th Circuit to faithfully apply Bruen’s historical tradition test to one of the last remaining state bans on open carry, rather than allowing the government to nullify the right through interest-balancing disguised as a “nuanced approach.”
“Open carry predates the Founding and was the primary mode of lawful carry throughout the Nineteenth Century,” Gottlieb said. “SAF and its partners are proud to stand with Mr. Baird against California’s unconstitutional restrictions, and we urge the Court to reject the State’s baseless public-safety claims and restore the full scope of the Second Amendment right.”
The plaintiffs are asking the court to strike down California’s open-carry restrictions and block further enforcement of the law.
The outcome could have major implications not only for California, but for public-carry restrictions nationwide.