In layman’s terms: The U.S. Court of Appeals for the Ninth Circuit used the Bruen ruling to simultaneously strike down California’s ban on open carry, while upholding the permitting scheme underpinning it, which has never issued a single permit.
On Friday, January 2, the Ninth Circuit Court of Appeals issued a panel decision on a case challenging California’s restriction on the open carry of firearms and permitting scheme, reversing in part and affirming in part the previous decision by a lower court. The legal gymnastics in this case set a new standard for judicial activism.
The 98-page decision was issued by Judge VanDyke, along with a concurrence by Judge Kenneth K. Lee and a partial concurrence and partial dissent by Judge N.R. Smith. The decision is an answer to a second appeal arising out of the United States District Court for the Eastern District of California, in Baird v. Bonta.
In this case, challenger Mark Baird wished to openly carry a firearm, which California bans in all counties with populations greater than 200,000, which is nearly 95% of the densely populated state. For the other 5%, California insists that individuals may apply for a special license, distinct from the concealed carry license. Under these circumstances, Baird challenged the restrictions on both Second and Fourteenth Amendment grounds.
In its decision, the appeals court noted that the inferior district court circumvented the directions of the higher court, one of many questionable issues that arose in the challenge:
Baird initially sought a preliminary injunction, which the district court denied without analyzing Baird’s likelihood of success on the merits. This court vacated and remanded for the district court to properly consider the likelihood of success. Rather than address the requested preliminary injunction on remand, the district court granted summary judgment in favor of California, holding that the Second Amendment does not protect Baird’s desired conduct. Appealing again, Baird argues that the district court erred…
In its recent review, the appeals court struck down California’s open carry ban, finding it inconsistent with the Second Amendment and the nation’s tradition – specifically the Bruen Standard. “Applying the standard set forth in Bruen, the historical record makes unmistakably plain that open carry is part of this nation’s history and tradition,” writes the court, adding, “For most of American history, open carry has been the default manner of lawful carry for firearms. It remains the norm across the country – more than 30 states generally allow open carry to this day, including states with significant urban populations.”
Yet, the court also ruled that with regard to Baird’s as-applied and facial challenges, he “…waived his as-applied challenge by not contesting the district court’s dismissal in his opening brief,” identifying a procedural error as the underlying factor.
Even more incredible, the court found the mere existence of a post-Bruen, shall-issue licensing scheme (valid only in the county it’s issued in) to be enough evidence to deny his facial challenge, a scheme which the court describes as ineffective window dressing:
At least on its face, California’s rural licensing scheme is a shall-issue regime under which a general desire for self-defense is sufficient to obtain a permit.
Yet, in his concurring opinion, Judge Lee notes that the licensing scheme is subterfuge at best, with no record of even one license being issued:
I also write separately to highlight how California has apparently resorted to subterfuge to deny its citizens their Second Amendment rights. California insists that citizens in counties with populations fewer than 200,000 people can apply for an open-carry license. Yet California admits that it has no record of even one open-carry license being issued. How could this be? One potential reason is that California has misled its citizens about how to apply for an open-carry license.
It’s also interesting to note that the opinion documents the racist underpinnings of California gun control, with the first ever restriction on carry “…intended to apply only to ‘Mexicans,’ who were considered dangerous.” The court calls the 1967 Mulford Act, signed by then-governor Ronald Reagan, “legislation tainted with racial animus.”
The court remanded the case back to the district court with “instruction to enter judgment in favor of Baird with respect to his challenge to California’s urban open-carry ban.”
The case is likely to be further appealed.
