For years, the Ninth Circuit was easily the most anti-gun court in the nation. There wasn't a gun control law they didn't love. The only good news came from decisions handed down by "Saint" Roger Benitez. He was the isolated voice of sanity in a sea of crazy, though, and so his decisions didn't last very long.
But following the Bruen decision, there's far less ambiguity for the lower courts to play with. Now, there's a line in the sand that has to be crossed before a law can be declared constitutional, and states like California don't remotely comprehend the line actually exists.
So, the Ninth Circuit has, among other things, killed the open carry ban in California, and the Citizens Committee for the Right to Keep and Bear Arms is thrilled by this.
From a press release:
The Citizens Committee for the Right to Keep and Bear Arms is cheering the ruling by a three-judge panel of the U.S. Ninth Circuit Court of Appeals striking down California’s ban on open carry in urban areas, which is a serious blow to the state’s effort to trample the Second Amendment rights of its citizens. The case is known as Baird v. Bonta.
The 2-1 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.
“We’re delighted with Judge VanDyke’s majority opinion,” said CCRKBA Chairman Alan Gottlieb, “not only because it strikes down Calfornia’s restrictive open carry law, but also because it sends a signal to anti-gun legislatures in other Ninth Circuit states that the Second Amendment cannot be treated as a second-class right, which they seem to believe is a government-regulated privilege.
“We are mindful this ruling may quickly bring a request from California for a re-hearing before a full Ninth Circuit panel,” he continued. “That’s been the pattern for years, so we are fully aware this battle is not finished, and it could go to the U.S. Supreme Court, where we anticipate Judge VanDyke’s opinion will be upheld.”
In his ruling, Judge VanDyke observed, “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.”
“Essentially,” Gottlieb stated, “Judge VanDyke’s majority opinion affirms the Second Amendment means what it says. The right to keep, and especially bear, arms ‘shall not be infringed,’ which is exactly what the State of California has been doing with its open carry ban. It’s time for California lawmakers to not only read the proverbial writing on the wall, but to read every word of Judge VanDyke’s opinion and take it to heart.”
I've always shaken my head at open carry bans, as well as any other carry restriction, since the right to bear arms seems self-explanatory to me. I'm not a fan of open carry from a tactical standpoint, personally, but I defend the right to do so. I won't even say that I don't do it sometimes, especially when I'm at a Second Amendment event. That's the perfect time to have open carry, actually, and I do it at the 2A Freedom Fest in Summerfield, Florida, every year, where I'll be speaking again this year. (Did you like that oh-so-subtle plug?)
Up until this year, you could only open carry in Florida if you were camping, fishing, or hunting, and, since I was camping, I carried openly.
But that wasn't an option in much of California. They were explicitly prohibited by law from open carry by a measure that was passed in 2012, if I remember correctly. In other words, they had open carry, but then took pains to pass a ban. This despite there having been zero problems with open carry other than sensitive anti-gunners getting their feelings hurt because someone disagreed with them and walked around armed and not bothering anyone otherwise.
So yeah, the CCRKBA has a reason to be thrilled.
Will this stand an en banc review? I actually think it will, because this goes well beyond anything permissible under the Bruen standards, even with Rahimi muddying the waters as it did.
If not, this is a chance for the Supreme Court to step up and actually do what it's supposed to do and kill such a blatantly unconstitutional law. Of course, I suspect that it'll come to that one way or another, regardless of what happens next in the Ninth Circuit.
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