Open carry revolver holster
Dan Z for TTAG
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One of the many cases challenging plainly unconstitutional gun control laws that’s been winding its way through the courts is Baird v. Bonta. That’s a case challenging California’s ban on open carry. As a ruling by a Ninth Circuit panel today notes . . .

Appellants Mark Baird and Richard Gallardo wish to openly carry handguns in California for self-protection, but California’s current licensing regime effectively establishes a statewide ban on open carry by ordinary law-abiding Californians. With narrow exceptions, those Californians who reside in counties with more than 200,000 residents— roughly 95% of state residents—may not apply for an opencarry license. … A subset of the remaining 5% of Californians not subject to other categorical bars may apply for an open-carry license from the local county sheriff or police chief, but California has provided no evidence that any such license has ever been issued. 

In other words, a few Californians may be able to apply for an open carry permit, but no one will issue one. The plaintiffs argued for a preliminary injunction blocking the ban while the case was argued, but a District Court denied that request on an interest balancing basis.

As the Ninth Circuit noted . . .

…the district court erroneously determined that because the public interest and balance of harms disfavored the issuance of a preliminary injunction, it was not necessary to assess Appellants’ likelihood of success on the merits.

That determination, however, was made a long time ago. Much has changed since then, not least of which is the Supreme Court’s Bruen decision. Interest balancing is no longer a valid justification for denying Second Amendment rights and the Ninth Circuit panel has ordered the lower court to reconsider the plaintiffs’ motion for an injunction.

The district court’s analysis of the first Winter factor must include consideration of whether the conduct that California’s general open-carry ban regulates is covered by the text of the Second Amendment. If it is, California bears the burden to identify a well-established and representative historical analogue to its open-carry ban that was in force when the Second or Fourteenth Amendment was ratified.

Good luck with that. The panel also ordered the District Court to get a move on.

Noting that it has been more than four years since Appellants first moved for a preliminary injunction and more than fourteen months since Bruen was decided, the panel directed the district court to complete its preliminary injunction review expeditiously.

Finally . . .

If the district court determines that Appellants showed that they are likely to succeed on the merits of their claim, the district court must account for the impact that determination has on the remaining Winter factors when it analyzes each of them. This means recognizing that, in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, and strongly tips the balance of equities and public interest in favor of granting a preliminary injunction

In short, the three-judge panel reversed the District Court’s decision denying the injunction and told them to reconsider it, noting that “by declining to assess Appellants’ likelihood of success on the merits of their Second Amendment claim, the district court abused its discretion by failing to apply the proper preliminary injunction standard for a case raising a constitutional challenge.”

Read the full ruling here.

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68 COMMENTS

      • They did not actually rule on whether to issue the temporary injunction, only that the trial court abused its discretion in not considering the probability of plaintiff’s success on the merits, which the trial court had expressly declined to do. As you probably recall, Bruen did away with interest balancing, which again is the standard the trial court had used. Since open carry was the tradition at the time periods in question–in fact Calif0rnia did not outlaw loaded open carry until 1968 and open carry entirely until 2013 (for handguns) 2015 (for long guns), California has a huge burden to overcome.

        On the other hand, the effect of the ruling will likely be quite limited as the 1000′ “no carry” rule for the Gun Free School Zone Act puts a crimp on going anywhere with a gun on your hip and staying in compliance with the law. Plus there is a question as to the effect of the dramatic expansion of gun free zones called for under the pending CCW bill, SB2 (very similar the the NYS law).

        • The Baird plaintiffs do not challenge the 1,000-foot gun-free school zones that extend from every public and private K-12 school. My lawsuit, Charles Nichols v. Gavin Newsom et al., does.

          My lawsuit already challenges most of the places where SB 2 will make it a crime to possess or carry a firearm, even for those who have a permit to carry a handgun.

          My lawsuit is years ahead of any other lawsuit, including Baird v. Bonta.

      • “Or can-kicking?”

        Full court is always defying.

        If a case looks like a win for 2A, there will be a “catch” somewhere.

      • A little of both.

        Once we get a ruling from the lowest court on the preliminary injunction, the issuance of that injunction can be appealed up the food chain to a three judge panel, then en banc and then Supreme Court.

    • Not this time. Were they to go en banc and uphold this clearly erroneous district court decision, they would be all but guaranteeing SCOTUS reaching out via the shadow docket.

      Plus, the anti-2A judges on CTA9 know that the district court will probably find some other BS reason to deny the injunction, and then it’ll all start over again.

      • Basically where we are here in NY waiting on the second circuit to make a decision from the spring hearing.

  1. Even if the lower court issues the desired ruling the state will find myriad other reasons to delay and deny. I can accurately predict that even if the plaintiffs win and are permitted to open carry they will be subject to continuous police monitoring waiting for any reason, jaywalking, to arrest and confiscate. The communists NEVER give up.

  2. Glad to hear about the ruling, but I never understood the desire to open carry. Shouldn’t be illegal, just never understood it. I’ll always believe that, for some, it’s what I call the “look at me” syndrome. Kinda like the guys that drive with the bass thumping. Just attracts unwanted attention. At least, it should be unwanted. There is a time and a place for open carry. Wal-Mart is not it. Besides, if you have to enter a gun free zone you have no choice but to disarm. I was paid to open carry for 25 years and could legally do it off duty as long as I displayed a badge. Never did. Always concealed off the clock.

    • I have zero personal interest on OC here in Florida, but the option would be nice I ever wanted to.

      Like you, I suspect the assholes down here would abuse it and make life unpleasant… 🙁

    • open carry upsets people…it also makes you a target for someone desiring to get that gun off of you…in certain situations, I suppose it’s ok… but to me it’s just asking for trouble and reflects poorly on the rest of us…

      • Frank, that is a crock of shit. The chances of someone trying to take your gun away from you in open carry is slim and none. Can you cite any cases where a person who was open carrying, had his/her gun taken from them? So you are a proponent of concealed carry. Good for you, but your reasoning is faulty at best.

    • I live in MS. Usually in public I’ll carry concealed, but I don’t make any special effort to make it invisible. If it shows, it shows. And in some public areas (gas stations, Walmart, Dollar General, etc.) I’ll deliberately let it show. No big deal, and I’m not breaking any laws by doing it. And I don’t even have a carry permit! How ’bout that 🙂 .

      • This is the important part of open carry. If you are legally conceal carrying, and someone sees a portion of your firearm, it’s still lawful.

        • My carry this morning picking up stuff in town was my 1911 Commander w/Stag grips riding in a quality custom leather OWB holster on my hip. Loaded with .45acp 255grn +P hardcast flat nose ammo + 2 spare mags. Wearing jeans and polo shirt. I’m 6′, 200lbs, bald with full beard, and in pretty good shape for being nearly 80. Got a lot of smiles from the pretty girls. 🙂

        • Correct! I moved from NY to a free state with constitutional carry a couple years back. In NY, printing = brandishing = prison. In my new homeland, printing = legal open carry = no big deal. I have taken to wearing more comfortable holsters, carrying OWB, and carrying larger pistols for these reasons. I still don’t usually open carry “for real” because I don’t really like being noticed, but I always smile when I see guys at the grocery store proudly carrying while buying cheerios. The way it should be!

    • Gadsden Flag,

      I have been camping and hiking in wilderness areas where there are LARGE black bears (upwards of 400 pounds and one harvested specimen over 600 pounds) and have decided that a large revolver (with 6-inch barrel) chambered in .44 Magnum is my best choice for protecting me and my family from said large black bears. The only practical carry solution (which keeps that revolver readily accessible should a black bear suddenly attack us) is a shoulder or chest holster. And while it is easy to conceal that in cooler temperatures with an unzipped jacket or coat, I really don’t want to have to wear a jacket if it is 75 degrees or warmer (or even in the low 60s if hiking). In those conditions I want the option for open carry.

      So, while concealed carry has a lot of advantages in a lot of situations, it is nice to have the option for open carry in some situations as well.

    • I have always felt that “open carry” makes one a target.. to be mugged from behind and disarmed. At least in town… probably not while camping or hunting..
      Usually no one knows if I’m armed (or not)….

    • “There is a time and a place for open carry. Wal-Mart is not it“

      Agreed.

      “to me it’s just asking for trouble and reflects poorly on the rest of us… “

      Agreed.

      “I have always felt that “open carry” makes one a target.. “

      Agreed.

      • “There is a time and a place for open carry. Wal-Mart is not it“

        “Agreed.”

        So what?

        “to me it’s just asking for trouble and reflects poorly on the rest of us… “

        “Agreed.”

        Who cares?

        “I have always felt that “open carry” makes one a target.. “

        “Agreed.”

        Suck eggs.

      • MajorLiar,

        What part of “it’s an inherent HUMAN RIGHT, protected from governmet f**kery by the 2A” was opaque to you??? I mean, we’ve ALL accepted that you’re stupid, and an ideological, propagandist, but . . . your OPINION as to MY rights means exactly f**k all, to me.

        Thanks for playing, moron.

  3. There is another open carry case in Kommiefornia in the courts. Check out Nichols v. Newsom (C.D. Cal., Case No. 11-cv-09916) a one-man operation that needs our backing.

    • Thanks for the honorable mention. My lawsuit is once again before the 9th Circuit Court of Appeals. The three-judge panel assigned to my appeal had remanded my case back to the district court one year ago. I filed a motion to recall the remand and for an extension of time to file a petition for rehearing/rehearing en banc or to seek review by SCOTUS less than two days later. Ten months later, my motion was granted. I expect my petition for rehearing/rehearing en banc will be denied tomorrow or next week. I will then be filing my petition for a writ of certiorari with SCOTUS within 90 days.

      • Mr. Nichols, thank you for checking in, and please keep us advised on the progress of your case. You’ll find a receptive and supportive audience here.

        • Thanks, but it has been my experience that concealed carriers cannot resist throwing their virtual feces, including here. The best way to keep track of my case is to bookmark my lawsuit status page at my website CaliforniaOpenCarry dot com, and subscribe to my newsletter.

      • Charles,

        Don’t know (or care) if you are a veteran, or not, but . . . thank you for your service!! Good luck, and we’ll be following your progress.

        • Thank you. No, I am not a veteran. I was born a few years too late for Vietnam. I came very close to joining the Navy but the recruiter changed my paperwork from 3 years active + 3 years reserve to 5 years active but did not tell me about it until the day I left to be sworn in. When I discovered that I had been lied to, I refused to take the oath and went home.

          Probably just as well.

  4. Another let’s explain things to tyrants and ask them for a permission slip to exercise a Constitutional Right. Problem is so called Defenders of the 2A just cannot muster up the intestinal fortitude to show the face of Gun Control to a court…

  5. I open carry all the time. No one bats an eye. Police do not even look twice. Do you know why? I am not covered in tattoos or have any disgusting piercings. Nor do I dress like a scum bag. If people had a little more respect for their personal hygiene and manner of dress they might find open carry to be as drama free as I do.

  6. Why are so many complaining???
    You can perform sex acts in public and not be arrested in California. You can urinate and defecate in public. And not be prosecuted in California. You can do drugs in public an not be arrested in California.

    The communists figured out that if they give these things, you will vote them into office.

    Your gun rights are just “an equal trade”. For your most deviant desires to be made legal.

    • Now if there was only an Amendment for Reps pushing bad bills through legislatures to have these turds pass judicial review before they ram them down our throats and cost countless hours and dollars to have thrown out. Why was that never considered… My first stop when I get the time machine working.

      • “Now if there was only an Amendment for Reps pushing bad bills through legislatures to have these turds pass judicial review before they ram them down our throats…”

        That would be an effective means of grinding the judiciary to a halt, while doing nothing to prevent legislative bills from being created; govt by unelected elites.

  7. And just for the record. It was a Jewish lawyer and member of the board of directors for the ACLU. Who co-wrote the Mulford Act. The most racist modern day gun control law.
    And it was a h0mosexual lawmaker. Tom Ammiano California state senate, who supports that racist law.

    Both of them are Democrats.

    • Every. Time. Every. Damn. Time.

      My significant other is Jewish she can’t understand the mindset of 90% of her faith ie. the Democrat-voting, genocide of the pre-born, anti-gun crowd.

      • I have seen that mindset described as “the gas chamber mindset”, attributed to the founder of JPFO, Aaron S. Zelman.

      • Actually, the Jewish has no problem with early abortions, the Old Testament gives specific instructions on abortion methods (“bitter waters”).

        “Until 40 days gestation, the fetus is not considered life.

        Yes, during this period, the Talmud [a compendium of rabbinical commentaries and laws written during the 1st millennium C.E.] characterizes a fetus as “mere water.”

        In fact, the Talmud wouldn’t even call terminating a pregnancy before 40 days gestation an abortion. During that period, the fetus is coming into being. You can’t abort that which hasn’t come into being yet.“

        “Is the fetus considered a life after 40 days gestation?

        A potential life. The Talmud is quite clear that a fetus only becomes a full-fledged life once the baby issues from the womb — when the head, or, in another interpretation, most of the body, has emerged from the mother’s body.“

        https://www.brandeis.edu/jewish-experience/social-justice/2022/july/abortion-judaism-kimelman.html

        • Here we go again — an atheist lecturing us on religion.

          That’s like a virgin sharing tips on bedroom technique.

          An acrophobic expounding on flight.

          A schizophrenic advising on mental health.

          A drooling moron explaining Einstein’s theories.

        • “Ive never come across that scripture in Sunday school“

          Of course not, it is not part of the current Christian narrative but it’s right there in the Holy Word of God as recorded in the Old Testament:

          Numbers 5:11–31

          https://mechon-mamre.org/p/pt/pt0405.htm#11

          “The best cure for Christianity is reading the Bible”
          Mark Twain

        • MajorLiar,

          Tell us you know NOTHING about Judaism (or religion, in general) without using the words, ‘I know nothing about Judaism’. Oops, you already did.

          Judaism, both as practices (there are various branches of Judaism, which fact you are entirely too stupid to be aware of – Orthodox, Reform, etc.), and as theology, has MANY different views on abortion. There are devout Jews who abhor, and religiously prohibit, abortion. There are others who permit it (up to a certain point), and others who express no opinion whatsoever. Now, what part of that are you too stupid to understand???? Oh, apparently all of it.

          As for the whole “40 days” thing???? Are you saying, “an abortion ban after 40 days would be totes OK with me”????? What a f**cking hypocrite you are!!

          Go f**k a rubber duck and have bouncing babies, you lunatic, Leftist/fascist quarter-wit.

  8. The 9th Circuit Court of Appeals did not reverse the denial of the preliminary injunction. It remanded the case back to the district court for a do-over and to give the State of California yet another opportunity to prove that there is no right to openly carry arms, particularly handguns, outside the doors to our homes.

  9. I talked to a woman the other evening who had moved from California. She said California used to be a really good place when the majority were people who had moved there from Oklahoma. I suppose Texas may be saying something similar in the future?
    The only good thing I’ve found out of California was Vicky.

  10. The 9th circuit got it wrong regarding the 14th amendment. Anything after 1791/1792 can only be used to enhance gun rights and not take them away. The 14th amendment was added to the constitution in 1868 so it cannot be used to take away any gun rights. It can be used to enhance them.

    • “Anything after 1791/1792… “

      Interesting. So reading for ‘text and tradition’, the amendment against the ownership of slaves should be discarded as it was adopted after 1865?

      • Liar69er, here’s your problem — you truncated the quote and jumped off-topic.

        Here’s the full quote:
        “Anything after 1791/1792 can only be used to enhance gun rights and not take them away.”

        Care to try your answer again — this time, addressing the topic at hand?

        • no name,

          No, no he wouldn’t – because he KNOWS he’s a lying, Leftist/fascist propagandist, and can’t address ANY topic honestly. But it was brave of you to try to hold him to his own standards (Saul Alinsky would be proud!).

          The scary part about MajorLiar is that he (and his Leftist/fascist fellow travelers) think he’s the shiznit, when he’s actually too stupid to pour p**s out of a boot, with the instructions on the heel.

          He is the living embodiment of the original Greek meaning of the word ‘sophomoric’ – he’s so stupid that he THINKS he’s smart (to the extent that ‘thinks’ could ever be applied to a verbal eruption by MajorLiar).

      • MINOR49er, Try again, this time in English?
        It seems you are trying to say that the 13, 14, 15th Amendments should be what?

  11. @SAFEupstateFML
    “So an improvement?”

    Possibly. 2A cases would certainly languish in the backlog long after the plaintiffs went to see the spirit in the sky.

    • Well we have more than a bit of that now and it “could” drastically reduce the flow of new laws. With that said such an approach would make more sense in NY/NJ/CA/MA/others willing to produce copious amounts of constitutionally dubious garbage laws while slowing down productive states advancing rights so for the moment the current path is likely the better option.

  12. How many average people can understand the doubletalk legalese used in these court decisions, be it spoken or written. The “interpretations” are no better at explaining it to anyone other than another lawyer, so they are of little help.

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