While the U.S. Supreme Court apparently doesn’t want to hear any Second Amendment cases at the moment, lower courts on both coasts have been busy this week, with decisions coming down from district judges and courts of appeals in challenges to California’s ban on open carry, Washington State’s ban on so-called assault weapons for 18-20 year olds, and New Jersey’s ban on magazines that can accept more than ten rounds of ammunition. While none of these cases appear to be heading directly to the Supreme Court at the moment, all of them could eventually reach SCOTUS after the November elections, and possibly even after the makeup of the Court itself has changed.
In Baird vs. Becerra, plaintiffs Mark Baird and Richard Gallardo argue that the state’s ban on openly carrying a firearm violates not only the Second Amendment, but also their rights guaranteed by the Fourth and Fourteenth Amendments as well. On Monday, U.S. District Court Judge Kimberly Mueller ruled that the case can go forward, but as Courthouse News reports, she declined to issue an injunction that would block the ban on open carry from being enforced while the case is being adjudicated.
Mueller, a Barack Obama appointee, noted a Ninth Circuit panel ruled in 2018’s Young v. Hawaii that the Second Amendment “encompasses a right to carry a firearm openly in public for self-defense” and the right is “core” to the Second Amendment. However, since Young will now be heard by an en banc Ninth Circuit, Mueller is not currently bound by the original ruling.
“Thus, no controlling authority has held that the Second Amendment right protects an individual’s right to open carry. However, where ‘difficult legal questions require more deliberate investigation,’ the court may grant a preliminary injunction to preserve the status quo so long as plaintiff demonstrates ‘that serious questions going to the merits were raised,’ ‘the balance of the hardships tips sharply in the plaintiff’s favor,’ and plaintiff meets the other requirements,” Mueller wrote.
Mueller agreed the men raise “serious questions” regarding their Second Amendment claims that require further consideration. But since then Ninth Circuit is likely to bring more clarity to the scope of the Second Amendment in the near future — as Mueller noted, Second Amendment law is evolving — the men have “a chance if not a ‘fair chance of success on the merits.’”