Baird v Bonta

Historically, the Ninth Circuit is the most leftist / progressive / district in the federal court system; it’s also the most reversed appeals court.  Well, surprise!  In Baird v Bonta, a three-judge appellate panel, composed of two judges appointed by President Trump during his first term came down on the side of ‘open carry’ when they said in their opinion’s summary:

“…the historical record makes unmistakably plain that open carry

is part of this Nation’s history and tradition. It was clearly
protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment. There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation.”

This appellate decision reversed, in part, a district court’s decision.

The details from the majority opinion clearly state the issue and the reasoning:

“California's has banned open carry in all counties with a population greater than 200,000.  According to the most recent census, those counties are home to roughly 95% of the state's population. The 5% of California's population for whom open carry is not outright banned everywhere in the state are purportedly able to apply for a license that would allow them to exercise their constitutional right to open carry in just their county of residence, although their ability to secure even that license is, on the record before us, at best unclear….”

“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.”

“Similarly, for the first 162 years of its history open carry was a largely unremarkable part of daily life in California. From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California (open or concealed) was entirely unregulated...”

Bruen said "history reveals a consensus that States could not ban public carry altogether." (“Public carry” includes both open and concealed carry.)  Bruen established that modest burdens were likely constitutional as long as they do not prevent the exercise of 2nd Amendment rights and served the government’s interest in ensuring only law-abiding citizens were carrying arms.  For example, background checks, modest fees and short wait times would likely be constitutional.

Both sides used the NYSRPA v Bruen decision to justify their position, but the majority smacked down the minority’ opinion.

The third judge, a President GW Bush appointee, concurred in part and dissented in part.  His dissent said:

First, open carry is not conduct that is covered by the plain text of the Second Amendment.  

Second, following the reasoning of Bruen, California may lawfully eliminate one manner of public carry to protect its citizens so long as its citizens may carry weapons in another manner that allows for self-defense. Because California allows concealed carry, it may restrict open carry.

The majority countered the dissent: “…that is not only a basic logical error, but also obviously a wrong way to interpret language in Supreme Court opinions…. If the Supreme Court said, "States cannot ban speech altogether," nobody would think it was also implicitly saying that as long as the state allows some speech, it necessarily can ban all other speech. …” 

The dissent also assumed that California’s various local licensing schemes are all effectively “shall issue” and without onerous restrictions on place, design and function of the “allowed” firearms.  (Gun owners in California would argue that the reality is different.)

This was a good win for 2A but the judges did throw a partial loss to us. The court upheld California’s licensing requirements in counties with populations under 200,000.  The panel found that, “shall-issue” licensing schemes align with Bruen by allowing permits based on a general desire for self-defense. But the judges raised legitimate concerns about the state’s apparent subterfuge, noting that no open-carry licenses have been issued despite the legal framework.

The appellate court’s decision may be appealed to an en-banc hearing by all the judges in the Ninth Circuit or it may be appealed to the Supreme Court of the United States (SCOTUS). 

This Ninth’ Circuit’s opinion is the opposite of the Second Circuit (New York, etc.) which found in Frey v N Y City that a ban on Open Carry was constitutional.  A split like this, if it stands, is the kind of case that SCOTUS is likely to hear.