California’s ban on the open carrying of firearms has been declared unconstitutional

California’s ban on handguns is unconstitutional, a San Francisco-based appeals court ruled Friday.

The 9th US Circuit Court of Appeals ruled that the ban, which applies to counties with populations over 200,000, violates citizens’ 2nd Amendment right to keep and bear arms. Under those laws, 95% of the state’s population was under the ban.

The 2-1 opinion was supported by two of President Trump’s appointees, US District Judges Lawrence VanDyke and Kenneth Kiyul Lee. US District Judge N. Randy Smith, a nominee of former President George W. Bush, denied it.

VanDyke, writing for the majority, said California’s city bans on open-carry permits do not stand up to the Supreme Court’s landmark gun rights decision in New York State Rifle & Pistol Assn. vs. Bruen. That 2022 resolution made it much easier to carry a gun in public by passing laws requiring people to demonstrate a special need for self-defense.

It also established a test to determine whether federal gun laws violate the Constitution by requiring that the restrictions be consistent with “historical tradition demarcating external limits on the right to keep and bear arms.”

VanDyke wrote in his opinion that California’s open-carry ban fails this test.

“History clearly states that freedom is part of the history and culture of this nation,” he wrote. “It was expressly protected at the time of the founding and at the time of the adoption of the Fourteenth Amendment.”

He also noted that California’s rationale for the ban — that open carry has the potential to create panic, chaos and an unsafe environment — is an existing challenge that has been faced since the nation’s founding.

He wrote that open carry has been the “default legal method” of carrying a gun for much of American history and that more than 30 states, including those with large urban populations, currently allow open carry of firearms.

Smith, writing in opposition, argued that because California enshrines the right to bear arms through its concealed carry permits, it can limit open carry permits.

“A state may not prohibit the public carrying of firearms by eliminating both open and concealed carry, but a state may legally eliminate one method of carrying to protect and ensure the safety of its citizens, as long as they can manage otherwise,” Smith wrote.

The lawsuit stemmed from a challenge brought by Siskiyou County resident Mark Baird, who opposed the county’s ban on land and license requirements for open carry permits in rural areas.

Although the appeals court ruled that the open-carry ban was unconstitutional, it upheld the state’s open-carry permit process. Baird’s attorney did not immediately respond to a request for comment Friday.

A representative for the California attorney general’s office said Friday the office is “committed to protecting California’s commonsense gun laws” and “reviewing the opinion and considering all options.”