California's Ban on Openly Carrying Guns Is Unconstitutional, 9th Circuit Says |
Second Amendment
Jacob Sullum | 1.5.2026 3:05 PM
Under the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen, a law that restricts conduct covered by the "plain text" of the Second Amendment is constitutional only if the government can show it is "consistent with this Nation's historical tradition of firearm regulation." In trying to meet that test, government lawyers frequently cite 19th-century state laws that prohibited people from carrying concealed firearms.
It is therefore not surprising that California relied on those laws in defending its ban on openly carrying guns, which applies in urban counties that include 95 percent of the state's population. But as the U.S. Court of Appeals for the 9th Circuit recognized in ruling against that policy on Friday, those precedents undermine California's case instead of reinforcing it. The laws cited by California preserved the right to openly carry guns, which state courts said was clearly protected by the Second Amendment.
"For most of American history, open carry has been the default manner of lawful carry for firearms," Judge Lawrence VanDyke writes in Baird v. Bonta. "The historical record makes unmistakably plain that open carry is part of this Nation's history and tradition. It was clearly protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment. There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation. California's failure to satisfy its burden to present evidence of a relevant historical tradition of firearm regulation is dispositive with respect to California's urban open-carry ban."
For the first 162 years of the state's history, VanDyke notes, "open carry was a largely unremarkable part of daily life in California." That changed in 1967, when state legislators approved the Mulford Act, which banned open carry of loaded firearms without a permit. The Mulford Act was "tainted with racial animus," VanDyke argues, noting that it was "passed during a period of significant racial unrest" in response to "the Black Panther Party's activities, which included openly carrying firearms to protest police behavior in African-American communities." Those activities, as I detail in........