The Golden State’s gun control hit the Bruen wall.
A federal court has ruled that an open carry ban affecting about 95% of California’s population is unconstitutional. When it comes to the Second Amendment right of the people to keep and bear arms, no state infringes quite like the “golden” one. California consistently ranks as the most restrictive in the country. But folks in the nation’s most anti-gun state can breathe a little easier now that the iron fist has been pried ever so slightly farther open.
California Hits the Bruen Wall
A panel of the San Francisco-based Court of Appeals for the Ninth Circuit ruled 2-1 that California’s ban on open carry in counties with more than 200,000 people violates the Second Amendment. Judge Lawrance VanDyke, a Trump appointee, wrote the majority opinion and argued the ban conflicts with the US Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen.
Bruen dealt with a specific issue in New York, but it also changed how gun control laws must be scrutinized by courts in Second Amendment cases. To be considered constitutional, gun laws must be consistent with the nation’s “historical tradition of firearm regulation.”
The state law banning open carry in urban counties was passed in 2012 – hardly historical. Prior to that, Judge VanDyke noted in his opinion, California allowed residents to openly carry holstered handguns for self-defense. “The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition,” the judge wrote. It’s a practice “that predates ratification of the Bill of Rights in 1791.” As he further explained:
“Similarly, 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.”
This ruling overturned part of a 2023 lower court decision that had dismissed a lawsuit filed in 2019 by a California gun owner who challenged open-carry licenses in smaller counties.
The Gun Control Capital of America
No state in the Union restricts the right to keep and bear arms as much as California. There are weapon type prohibitions, universal background checks even on private transfers, and limits on how many firearms a person can buy or how quickly they can do so.
Gun owners also have a lot of hoops to jump through before they can pack in public. To carry concealed in the Golden State, one must get a permit from the local law enforcement authority – either the city police chief or the county sheriff.
Applicants must be at least 21 years old, full-time residents of the county or city in which they’re applying, record their firearm with the California Department of Justice, and complete a required training course. They must also pass background checks and convince the authorities they’re “of good moral character.” There are fees, of course. They vary by county, but usually include separate charges for the initial application, Live Scan fingerprinting, and “issuance” upon final approval.
That covers concealed carry. But the urban open carry ban in question further restricted the rights of anyone living in a county with 200,000 or more residents. California isn’t the only place to try and justify banning open carry based on population, but it definitely covers the most gun owners. The Golden State has 58 counties, and 28 of them have populations over 200,000. An estimated 95% of Californians reside in those 28 counties – which, as the most populous state in the Union, accounts for slightly more than 11% of all Americans.
May They, Shall They?
The way the California law was worded evoked the very issue Bruen was brought up to address. In less populated counties, law enforcement “may” issue open-carry licenses. New York once had a strict “proper cause” requirement for concealed carry permits. It forced applicants, who were otherwise qualified under state and federal law, to show a “special need” for self-defense beyond just being out and about in the general public.
As Judge VanDyke wrote, “Bruen held that New York’s may-issue licensing regime was unconstitutional on its face.” Shall-issue states hold that, so long as applicants meet the stated requirements – which vary from one locale to the next in restrictiveness – they will be issued a license. In may-issue states, applicants don’t necessarily have to get their permit, even if they jump through all the hoops.
Bruen effectively ended may-issue permitting, pushing New York and five other states – including, unsurprisingly, California – to adopt shall-issue license laws, though they can still be quite restrictive. As well, the Ninth Circuit didn’t overturn the open-carry permit requirement itself, just the population limit. But it does mean that 95% of the state’s population is now legally allowed to seek a license to openly carry again. And with a ruling like this, don’t be surprised if more California gun laws crash against the Bruen wall in the near future.
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