Judge refuses to kill California open carry restriction

Judge refuses to kill California open carry restriction
AP Photo/Ted S. Warren

I’ve been accused, on occasion, of being anti-open carry. I’m not, of course, because I think any restriction on the right to keep and bear arms is an unconstitutional infringement that should be smacked down by the courts.

I don’t think it’s a good idea, but that doesn’t mean I think you shouldn’t be allowed to do it.

What we have here is a mild disagreement on best practices, not someone being anti-anything.

But California is really anti-open carry. They don’t permit it. And, unfortunately, it appears that at least one judge agrees with them.

A federal judge on Thursday denied a request by two men to block California’s restrictions on openly carrying firearms in public.

“They contend the Second Amendment countenances no limitations on their right to carry handguns openly in public, and they claim the Second Amendment precludes California’s scheme of prohibitions, exceptions, and licenses for carrying handguns openly in public,” U.S. District Judge Kimberly Mueller wrote in her 16-page opinion, neatly summarizing the plaintiffs’ arguments. “They describe their right to carry loaded handguns openly in public as ‘God-bestowed,’ as a right they can exercise without ‘permission from the government, licensing, registration, or any other action.’”

The judge found that the plaintiffs had failed to make the case that a preliminary injunction was necessary.

“Baird and Gallardo will not be without a means to defend themselves with handguns in public while the case is pending,” the judge wrote. “They and others in California may carry concealed handguns in public.”

Mueller went on to cite the Supreme Court ruling, which stated that nothing “should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes,” which describes California’s regulatory framework around carrying guns in public. Her ruling also cited a declaration filed by a former police chief who wrote, “restrictions on the open carry of firearms greatly enhance public safety.”

This same judge issued a similar ruling back in 2020, so now we know who is explicitly anti-open carry.

But, is she right?

Well, this is about issuing an injunction, not a definitive ruling on the constitutionality of laws restricting open carry. As such, and based on my layman’s understanding, because people can get a permit and carry a firearm as things currently stand, there is a legal understanding that an injunction isn’t needed.

I vehemently disagree, mind you, but I’m just stating my understanding of how all this works.

But the “enhance public safety” argument is not just BS, but troubling. It suggests the judge is using intermediate scrutiny to reach this decision, a kind of scrutiny Bruen expressly argues shouldn’t be used on Second Amendment cases.

We’ll have to see how the case itself is ruled, but anything other than permitting open carry is going to be appealed, likely all the way up to the Supreme Court.

I was about to say “as it should be,” but it shouldn’t. It’s not an “as it should be” because it should be so obvious to everyone that it shouldn’t get that far.

Especially post-Bruen.

I can’t imagine there’s a bevy of laws on the books from the 18th and early 19th centuries banning the open carry of firearms. After all, muzzleloaders of the era weren’t exactly known for disappearing into one’s clothes, for the most part. There were small pistols, sure, but those weren’t super common.

So most people carried long guns, which means they carried them openly, and in many parts of the nation, they weren’t really considered optional.

As a result, open carry is going to become the norm. I just don’t see it any other way. What we’ll have to do is wait a little bit before it happens, though.

We shouldn’t have to, but it is what it is.