By Dave Workman
Friday’s 2-1 ruling by a three-judge panel of the Ninth U.S. Circuit Court of Appeals striking down California’s ban on open carry in counties with populations of more than 200,000 is a significant victory for Second Amendment rights, but the battle is not likely to end there.
The Los Angeles Times quoted attorney Jason Davis, described as specializing in firearms, who stated, “This case will likely be taken up en banc for full panel review.”
Likewise, attorney Chuck Michel, president of the California Rifle & Pistol Association (CRPA), told ABC News he also expects the state to ask for a review by a full Ninth Circuit en banc panel. Michel said the opinion is “very significant.”
That has been the pattern with every gun rights case to come before the liberal Ninth Circuit, with the en banc panel traditionally reversing pro-gun decisions.
Still, Davis told the newspaper the ruling is significant for noting the right to carry covers more than licensed concealed carry.
The majority opinion was authored by Circuit Judge Lawrence VanDyke, a 2020 Donald Trump appointee. He was joined by Circuit Judge Kenneth Lee, a 2019 Trump appointee. Submitting a partial dissent was Senior Judge Norman Randy Smith, a 2007 George W. Bush appointee, who also partly concurred.
The case, known as Baird v. Bonta, was brought by Siskiyou County, California resident Mark Baird.
In his ruling, Judge VanDyke writes, “Open carry is unquestionably part of our Nation’s history and tradition of ‘the right to keep and bear arms.’ The clear protection for open carry, stretching back to the Founding, means that under Bruen we do not reach the ‘nuanced approach’ in evaluating California’s broad ban on open carry. 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. We decline California’s invitation to open that Pandora’s box.”
He further observes, “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. Therefore, applying the Supreme Court’s methodology in Bruen, this is a ‘straightforward’ case that does not require a court to embark on the more difficult analogical journey under the ‘nuanced approach.’”
The practice of open carry pre-dates the constitution, and even the Declaration of Independence.
In his partial dissent, Judge Smith states, “A state may not prohibit the public carriage of firearms by eliminating both open and concealed carry, but a state can lawfully 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.”
But therein lies the rub, as some jurisdictions have been accused of deliberately dragging out the permit application process. The Department of Justice has filed a lawsuit against the Los Angeles County Sheriff’s Department over that very issue. Dragging out the permit process essentially deprives citizens of both open and concealed carry options
While the VanDyke ruling still faces some hurdles, it sends a message across the entire Ninth Circuit, which covers western states including Alaska and Hawaii, and particularly Oregon and Washington, where Democrat-controlled legislatures have been looking at all sorts of restrictions on Second Amendment rights. Both states are open carry states.
Anti-gun California Gov. Gavin Newsom issued a statement in which he insisted the law was “carefully crafted” to comply with the Second Amendment.
“California just 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,” the statement said.
Workman is editor-in-chief of TheGunMag.com
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