9th Circuit Strikes Down California’s Open Carry Ban: What It Means for Gun Rights Nationwide

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A three-judge panel of the Ninth Circuit Court of Appeals struck down California’s ban on openly carrying firearms in counties with more than 200,000 residents—where 95 percent of Californians live. The 2-1 decision in Baird v. Bonta, issued January 3, 2026, marks the first time a federal appeals court has invalidated an open-carry ban based on a 2022 Supreme Court ruling that changed how courts evaluate gun laws.

The ruling requires gun regulations to match how guns were regulated in the 1700s and 1800s. It creates a direct conflict with another federal appeals court, which upheld New York’s open-carry ban months earlier—the kind of split that often draws Supreme Court attention.

“The Ninth Circuit is infamous for overturning opinions upholding the Second Amendment on review by the full panel of judges (instead of three),” noted one Second Amendment organization, acknowledging that this panel victory might not survive when the full bench gets involved.

California’s Two-Step Ban on Open Carry

The Mulford Act in 1967, signed by Governor Ronald Reagan, prohibited carrying loaded firearms in public without a permit in response to Black Panthers openly carrying firearms at the state capitol during protests against police brutality. You could still carry an unloaded gun openly—not useful for self-defense, but technically legal.

In 2012, California passed Penal Code Section 26350, making it a crime to openly carry even an unloaded handgun in any county with a population over 200,000. This created what the panel would later call “a complete ban on open carry in urban areas,” when combined with the existing ban on loaded carry.

The law theoretically preserved a licensing option in rural counties under that 200,000 threshold. But when pressed in litigation, California officials admitted under oath they had no record of ever issuing a single open-carry license under this provision.

Judge Kenneth K. Lee noted that California “routinely sues private companies for engaging in similar deceptive conduct” and observed that “constitutional rights should not hinge on a ‘Where’s Waldo’ quiz.”

The Plaintiff and His Lawsuit

Mark Baird lives in Siskiyou County in far northern California, population 42,500. His county falls under the 200,000 threshold, meaning he should theoretically be able to get an open-carry license. But he couldn’t get one—California’s admission that it issues none made that clear. Even if he obtained a license for his home county, he still couldn’t legally open carry in any of California’s urban counties where most residents live.

Baird filed his lawsuit in 2019. It sat in district court for years. Then the Supreme Court decided Bruen in June 2022, and everything changed.

The Bruen Standard

Before Bruen, courts evaluated gun laws using a two-step framework. First: does the Second Amendment’s text cover this conduct? Second: if so, apply a test that weighs whether the government’s reason is important enough and whether the regulation is reasonably tailored to achieve it.

Justice Clarence Thomas, writing for the Supreme Court’s 6-3 conservative majority, threw that framework out. Courts must ask: is this regulation consistent with America’s historical tradition of firearms regulation?

If the Second Amendment’s text covers the conduct (and the Supreme Court said “bearing arms” clearly includes carrying them in public), the government must show that its modern regulation aligns with how Americans regulated firearms at the Founding in 1791 or during Reconstruction in 1868. If governments back then shared similar concerns but addressed them through different means—or didn’t restrict the conduct at all—modern bans fail the test.

The Majority’s Historical Analysis

Judge Lawrence VanDyke’s majority opinion, joined by Judge Lee, establishes that open carry was the default, accepted way of carrying firearms for most of American history. Concealed carry was often restricted or viewed with suspicion.

VanDyke cites state supreme court decisions from the 1840s and 1850s that upheld bans on concealed carry specifically because open carry remained legal. Georgia’s supreme court in 1846 said a concealed-carry ban was fine because citizens could still carry “in full open view.” Louisiana’s high court in 1850 stated explicitly that “a prohibition against bearing arms openly, is in conflict with the Constitution, and void.”

Between 1822 and 1850, no fewer than six state supreme courts considered this question and reached the same conclusion: states could ban concealed carry because open carry—the constitutionally protected form—remained available.

Bruen itself cited these cases approvingly. The Supreme Court noted that “the historical record reveals a consensus that States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.”

California tried to flip this reasoning. If states could historically ban concealed carry while preserving open carry, the state argued, surely jurisdictions today can ban open carry while preserving concealed carry.

The majority disagreed. Those 19th century courts didn’t treat the two forms of carry as interchangeable policy options. They specifically protected open carry as the constitutional baseline and permitted concealed-carry restrictions because open carry remained available. “These courts explicitly rejected the argument that the two kinds of carry were interchangeable,” VanDyke wrote.

California’s Licensing Regime Defense

California tried to characterize its law as a “licensing regime” rather than a ban. Officials pointed to the theoretical availability of open-carry licenses in rural counties and suggested this preserved the underlying right.

The majority rejected this. “No one in California can open carry—with or without a permit—in the counties where 95% of Californians live,” VanDyke wrote. In the rural counties where licenses are theoretically available, California admitted it had never issued one.

Bruen distinguished between regulations that burden a right and regulations that eliminate it. Licensing schemes—even licensing that requires officials to approve qualified applicants—can survive constitutional scrutiny. But a complete ban on the exercise of a constitutional right in areas where nearly all state residents live is different.

VanDyke emphasized this wasn’t a case requiring complex comparing of modern situations to historical ones. California banned something that was clearly protected throughout American history, in places where virtually all Californians live, and offered no genuine alternative.

The Dissent’s Alternative Framework

Judge N. Randy Smith, appointed by George W. Bush, disagreed with the majority’s conclusion about urban areas while agreeing that California’s rural licensing scheme was constitutional. His dissent offers a different reading of Bruen.

Smith’s argument: Bruen held that states cannot ban public carry altogether, but California hasn’t done that. Concealed carry remains legal throughout California, including in urban counties. California has preserved the right to carry in public; it’s channeled that right into concealed carry rather than open carry.

The distinction between open and concealed carry, Smith argued, is a difference in the “manner” of exercising the right, not a difference in the right itself. If states could historically regulate the manner of carry by banning concealed carry, they should be able to regulate manner in the opposite direction by restricting open carry instead.

Smith’s dissent emphasizes that Bruen’s language about preserving one form of carry while eliminating another shouldn’t be read as a one-way ratchet that only protects open carry. The principle is that states must preserve some form of public carry—not that they must preserve the specific historical form.

This is the argument California will likely emphasize if the case reaches the Supreme Court.

The Circuit Split

In September 2024, the Second Circuit decided Frey v. City of New York, upholding New York’s statewide ban on open carry. That tribunal concluded New York’s prohibition was consistent with historical tradition and didn’t violate the Second Amendment, even though the state restricted open carry while preserving concealed carry.

Now the Ninth Circuit has reached the opposite conclusion about California’s similar law. Same constitutional provision, same Supreme Court precedent, opposite results.

The majority accused the Second Circuit of rewriting Bruen to reach its preferred outcome. The Second Circuit had claimed that Bruen permitted states to ban open carry as long as concealed carry remained available. But VanDyke pointed out that’s “transparently not what the Supreme Court said in Bruen—indeed, it is telling that the Second Circuit had to modify the Court’s language to support its holding.”

Splits between circuits on constitutional questions, especially involving recent Supreme Court precedents, are the kind of conflicts the Supreme Court exists to resolve.

What Happens Next

The decision doesn’t take effect immediately. The appellate court hasn’t yet issued the formal order that makes the decision official and enforceable. Until that happens, California’s open-carry ban remains enforceable.

Law enforcement officials confirmed they’ll continue enforcing the existing law until the formal order issues or a higher tribunal intervenes. Fresno County Sheriff John Zanoni made clear that despite the ruling, his deputies would still arrest people for openly carrying firearms in violation of California law.

California has several options. The most likely: file a petition for rehearing by the full panel of judges, asking them to reconsider the decision. The Ninth Circuit has roughly thirty active judges, most appointed by Democratic presidents. The three-judge panel that decided Baird included two Trump appointees (VanDyke and Lee) and one Bush appointee (Smith).

Review by the full panel has repeatedly overturned decisions that recognize or expand Second Amendment rights.

If full panel review fails, the case would likely head to the Supreme Court. The split with the Second Circuit makes Supreme Court review more likely, though the high court grants review in only a small fraction of cases.

Political Response

Governor Gavin Newsom’s office responded with a statement claiming: “California got military troops with weapons of war off of the streets of our cities, but now Republican activists on the Ninth Circuit want to replace them with gunslingers and return to the days of the Wild West.”

Attorney General Rob Bonta’s office issued a statement saying the office was “reviewing the decision and considering all available options” while remaining “committed to defending California’s commonsense gun laws.”

Gun rights organizations celebrated. The Citizens Committee for the Right to Keep and Bear Arms called it “a serious blow to California’s efforts to restrict Second Amendment rights.” Chairman Alan Gottlieb emphasized that the decision “sends a signal to anti-gun legislatures in other Ninth Circuit states that the Second Amendment cannot be treated as a second-class right.”

State Senator Catherine Blakespear, whose district includes urban areas in San Diego and Orange Counties, condemned the ruling as “reckless” and argued it “ignores overwhelming empirical evidence” about the relationship between expanded carry laws and violent crime.

Immediate Impact on Gun Owners

California’s open-carry ban remains enforceable until the appellate court issues the formal order that makes the decision official. If you openly carry a handgun in Los Angeles or San Francisco or any other California county with more than 200,000 residents, you will be arrested and prosecuted under existing law.

California will almost certainly seek review by the full panel of judges. If the full bench agrees to rehear the case, the decision gets vacated and the litigation starts fresh. Full panel review could reverse the outcome and uphold California’s law.

Even if the decision survives full panel review, California would likely ask the Supreme Court to review the case and request that the decision be paused from taking effect pending that petition. Courts routinely grant such pauses in cases involving significant state laws and constitutional questions.

California’s open-carry ban will likely remain in effect for months, possibly years, while this litigation plays out.

National Context

Twenty-nine states have enacted laws allowing people to carry guns without a permit, both openly and concealed. These include Texas, Florida, and other states with major urban centers.

More than thirty states permit some form of open carry without a permit. States that prohibit open carry outright or maintain severe restrictions represent a small minority of American jurisdictions.

When the majority noted that open carry “was the default manner of lawful carry for firearms” throughout American history and remains legal in most states today, that’s evidence of an ongoing tradition that Bruen says courts must respect.

California has deliberately positioned itself as one of the most restrictive states on firearms generally. It bans various types of firearms, restricts ammunition purchases, imposes waiting periods, and maintains extensive licensing requirements for concealed carry. The open-carry ban fits within this broader regulatory approach.

Bruen established that historical tradition, not contemporary policy preferences, determines the scope of permissible regulation. California’s determination that public safety requires restricting open carry doesn’t matter if that restriction conflicts with historical practice.

What the Supreme Court Might Do

The conservative majority that decided Bruen—Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Roberts—established the text-and-history framework to limit judicial discretion in evaluating gun regulations. Thomas’s opinion repeatedly emphasized that courts cannot substitute policy judgments for historical analysis.

That same majority would likely be skeptical of California’s argument that states can eliminate open carry as long as concealed carry remains available. The historical record the majority cited—those 19th century state supreme court decisions explicitly protecting open carry while permitting concealed-carry restrictions—comes directly from the era Bruen says matters most.

Judge Smith’s dissent offers a potential limiting principle that might appeal to justices concerned about the breadth of Bruen’s implications. If the Supreme Court adopted Smith’s framework—that states can channel the manner of public carry as long as they preserve some form of public carry—it would allow substantial state regulation while claiming fidelity to Bruen’s text-and-history approach.

Justice Kavanaugh’s concurrence in Bruen noted that “the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check.” He emphasized that the right isn’t unlimited and that many gun regulations remain permissible.

Implementation Challenges

Assume the decision survives review by the full panel and the Supreme Court either denies review or affirms. California’s open-carry ban is struck down. What happens?

California would face choices. It could enact a licensing system that requires officials to approve qualified applicants. This would parallel the concealed-carry licensing system California already maintains.

Or California could simply repeal the statutory prohibition, allowing unlicensed open carry statewide. This would align California with the majority of American states.

Or California could try to thread the needle—perhaps permitting open carry in some areas while restricting it in others, or imposing rules about when, where, and how people can carry guns that burden but don’t eliminate the right. Any such approach would immediately face litigation testing its boundaries under Bruen.

California’s political leadership has invested enormous political capital in positioning the state as a leader in gun control. Simply repealing the open-carry ban would represent a significant political defeat and would likely face fierce resistance from gun-safety advocacy organizations and Democratic legislators.

But continuing to defend an increasingly vulnerable legal position through years of expensive litigation carries its own costs. If California ultimately loses at the Supreme Court, the state will have spent years and millions of dollars in legal fees only to end up in the same place.

Broader Implications

Baird’s significance extends beyond whether Californians can openly carry handguns. It’s a test case for how Bruen’s text-and-history framework will work in practice.

Lower courts are still figuring out how to apply Bruen’s standard to the enormous variety of gun regulations that exist across American jurisdictions. Every split between circuits, every conflicting decision, every disagreement about historical analogies helps define the boundaries of what Bruen means.

The conflict between the Ninth and Second Circuits on open carry represents a fundamental disagreement about Bruen’s scope. Is the text-and-history test a genuinely restrictive standard that invalidates regulations inconsistent with 18th and 19th century practice? Or is it a more flexible framework that permits modern regulations as long as they preserve some form of the underlying right?

The Supreme Court will eventually need to answer that question. The answer will determine not open-carry laws alone but the fate of assault weapon bans, large-capacity magazine restrictions, bans on carrying guns in certain locations like schools or courthouses, and numerous other regulations that states have enacted based on contemporary public safety concerns.

Mark Baird filed his lawsuit years before Bruen was decided. But now that the case has reached this stage, it carries implications far beyond one state’s regulatory choices.

Historical Origins

California’s open-carry restrictions originated with the Mulford Act of 1967. That law was a direct response to Black Panthers openly carrying firearms at the state capitol during protests against police brutality. Governor Ronald Reagan, who would later become the conservative icon of the Republican Party, signed it into law.

The racial dynamics of that moment—white legislators and a white governor restricting gun rights specifically in response to Black political activism—don’t fit neatly into contemporary partisan narratives about gun control. Progressive advocates for gun restrictions don’t typically celebrate laws enacted to disarm Black protesters. Conservative gun rights advocates don’t typically criticize Reagan.

California’s restrictions on open carry began as a response to a specific political moment—armed Black activism that made white legislators uncomfortable—rather than as part of a longstanding historical tradition of regulation. This strengthens the case against those restrictions under Bruen’s framework.

Bruen requires regulations to be consistent with historical tradition. A law enacted in 1967 in response to Black Panthers doesn’t reflect founding-era or Reconstruction-era tradition. It reflects mid-20th century political anxiety about armed minorities engaging in political protest.

Timeline

The Ninth Circuit’s calendar shows no pending full panel cases for Baird as of early January 2026, but that will likely change soon. California has strong incentives to seek full panel review.

If full panel review happens, expect oral arguments sometime in mid-to-late 2026, with a decision potentially in 2027. If California loses at that stage, a Supreme Court petition would follow, with potential grant of review in late 2027 or early 2028 and a decision in the 2028-2029 term.

Procedural complications, pauses, remands, and additional briefing will likely stretch this out even longer. Constitutional litigation moves slowly.

Meanwhile, California’s open-carry ban remains in effect. Law enforcement continues enforcing it. Gun rights advocates continue challenging it.

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