WHY DON’T I FEEL SAFER?

The Ninth Circuit just issued an Opinion in Baird v. Bonta, No. 24-565 (January 2, 2026) (“Baird”) which took an expansive view of the United States Supreme Court decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (“Bruen”).  Basically, Baird found California’s Open Carry law unconstitutional on its face as it related to counties with populations of 200,000 or more.  (It denied an “as applied” challenge to the application of the law to counties of less than 200,000 for failing to preserve the issue below.)

The Opinion concluded that 30 states do not restrict open carry of firearms and that, “[I]t remains the norm across the country.”  As we may recall, it was 1967 when open carry of firearms became illegal without a permit – it was the Black Panthers who precipitated the law by arriving at the state capital peacefully but openly armed.  So the opinion stated that, “for the first 162 years of its history open carry was a largely unremarkable part of daily life in California.  From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California  (open or concealed) was entirely unregulated.”  The court then goes back further to the founding of the country finding that none of the states had restrictions on carrying firearms in public.  For those who want to read it carefully, there is a long discussion about whether concealed carry and open carry are fungible (according to the court, they are not) and whether California could justify, “a relevant historical tradition” of open carry firearm regulation (which it could not).

Read broadly, which it surely will be, the Ninth Circuit has held that a ban on open carry is unconstitutional in that gun violence has always been an issue while open carry was allowed.  The opinion claims that there is nothing new to upset the historical record as to what transpired before there was a ban.  It can also be read more narrowly, particularly to the extent that it accepts the Bruen nuanced approach to determining whether a ban can be imposed on concealed carry. 

We will see if the Ninth Circuit grants en banc review and whether whatever remains of the decision is taken to the United States Supreme Court. Nevertheless, I am not going to feel safer – if nothing else, a group of open carry folks with pearl handled 45 revolvers or tactical 40 caliber semi-automatics are likely to catch each other and innocent bystanders in a cross-fire at high noon in the mall.