What is Penal Code § 25850 - California's
Open Carry Law?
Open carry is an American tradition. Cowboys carried guns when they rode their horses. People on bicycles carried guns on their bicycles to protect against bad guys and wild animals. Even in cities guns were not commonly banned or controlled. And yet .... in California and many states open carry of loaded firearms is considered dangerous and provocative. There are currently many constitutional challenges to state open carry gun laws but the U.S. Supreme Court has been hesitating to rule on each individual state statute. Instead it appears that the court is waiting until multiple similar restrictive laws are challenged in the court at which point the court may rule o the general issue in light of the many state restriction statutes on the same or similar topic. Meanwhile, in California which has some of the most restrictive gun laws in the country, here are the open carry rules.
In recent 2nd Amendment jurisprudence we look to historical traditions to decide whether gun ownership, use and carry are 2nd Amendment protected. The current research shows that there is one historical exception to the core position that open carry was a usual and not prohibited use of firearms in colonial times. Start with the exception. In 1686 in pre revolutionary war times so that each state truly functioned as if it were a separate nation -- New Jersey law had a strong law that prohibited concealed weapons carry by anyone. It also prohibited OPEN carry of pistols, daggers and swords for certain people. These people were "Plainters" who were people who were developing new lands which were seen as uncultivated territory. They could carry long arms to protect against animals or to hunt but handguns were seen differently. However, except for this unusual law, no colony had any restrictions.
On the other hand some laws existed that required adults to carry guns. Sometimes this was a blanket rule. Other laws required carry guns to specific places like to work or even to Church. No law prohibited open carry.
When restrictions were put in place they often prohibited hidden carry and not open carry. These laws were mixed (state by state) and not common. So when we consider open carry restrictions being recently enacted we run right into the rule in New York State Rifle & Pistol Association v. Bruen (2022) which requires that gun regulations must have historical precedent based upon the nation's historical tradition of firearm regulation. Courts must determine if a law is "relevantly similar" to historical precedents from 1791 (when the Second Amendment was ratified. It seems glaringly obvious that Open Carry restrictions did not exist in any meaningful way in early times and therefore is protected by the 2nd Amendment.
Starbucks & Open Carry
Starbucks was involved in several high-profile open carry controversies. To get publicity and test legal restrictions various groups advocated entering Starbucks stores with guns in plain view. (This was in 2010–2013) Starbucks tried to deal with this by requesting that people not test the laws in their businesses but they did not ban open carry if legal locally. Here is an article on Starbucks and Open Carry.
The Christian Science Monitor reports that:
Thirty-two states allow the open display of loaded weapons, while California, Utah, and North Dakota require that openly displayed guns be unloaded, according to the Brady Campaign. Twelve states allow open carry but only with a permit. Florida, Illinois, and Texas prohibit open carry.
But the Open Carry Laws are Still Enforced!
Bear in mind that if you are charged with violating these laws constitutional objections should be made and an attempt should be made to stay enforcement of the criminal and gun forfeiture statutes pending US Supreme Court resolution of the issues. As we have posted elsewhere, even when there is an appellate court declaration of unconstitutionality this does not, by itself, strip the government of authority to enforce the statute while an appeal is pending. As the Ninth Circuit made clear in Ostrosky v. State of Alaska, 913 F.2d 590 (1990), "under [state] law, the [court's] holding that the statute is unconstitutional does not preclude the state from continuing to enforce the statute while the decision is on appeal" and "the government did not need [a] stay of [the] unconstitutionality decision to prosecute [defendant] on new charges under the statute." This means that, even absent a formal stay, prosecutions may continue; a stay only reinforces that enforceability by suspending the effect of the unconstitutionality ruling entirely. Still, while a case is on appeal it is unfair to punish someone (jail!) or destroy their weapons.
Penal Code § 25850 is the California open carry law that prohibits carrying a loaded firearm on your person or in a vehicle while in any public place or on any public street in an incorporated city (or in prohibited areas of unincorporated territory).
Violations are generally charged as a misdemeanor (up to 1 year in county jail and/or a $1,000 fine), but can be filed as a felony with prior convictions or other aggravating factors. Certain exemptions apply, such as for individuals with a valid concealed carry weapons (CCW) permit or specific law enforcement and military personnel.
In our practice we see open carry violations tied to searches of cars. There is a car stop and the officers see a gun in "plain view". This gives them the right to seize the gun even without a search warrant and since it is in "plain view" it is also an open carry violation. A search and seizure motion will be the best defense to this type of charge as we challenge the initial stop. If that challenge is successful the later plain view of the gun is also subject to suppression. Sometimes cases like this get negotiated but usually as part of that negotiation the district attorney wants the gun destroyed.
The Statutory Definition of "Loaded" — § 16840(b)
Because § 25850 does not itself define "loaded," California law directs courts and law enforcement to Penal Code § 16840(b) for that definition.
Under Penal Code § 16840(b)(1), as applied to § 25850, "a firearm shall be deemed to be 'loaded' when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm." Penal Code § 16840 This is a broad physical-attachment test: it is not limited to ammunition already in the firing chamber — ammunition in a magazine or clip that is attached to the firearm equally renders the weapon "loaded."
For muzzle-loader firearms, Penal Code § 16840(b)(2) provides a distinct rule: such a firearm "shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder."
Can you open carry in California if you have a license?
The short answer is: generally, no. Even with a standard Concealed Carry Weapon (CCW) license, you cannot "open carry" (carry a visible firearm) in most parts of California.
The legal landscape is currently in flux due to recent court rulings, but here is the breakdown of how the law stands as of April 2026.
1. The Standard CCW License
If you have a CCW license you know that there are many restrictions on that right to carry even when the gun is concealed. Open carry is one such restriction but remember that there are many local restrictions as well. (See our blog on the the San Francisco rules about "no hollow point" ammunition!
A standard California CCW license is specifically for concealed carry.
The Restriction: California Penal Code remains strict regarding the visibility of a firearm. If you have a CCW, the weapon must remain concealed. Purposely carrying it openly can lead to the revocation of your permit and potential criminal charges for "open carry" violations under PC 26350 (unloaded) or PC 25850 (loaded).
The "Printing" Exception: While briefly exposing a firearm or "printing" (the outline showing through clothes) isn't always a crime, intentional open carry is a violation of the permit's terms.
2. The "Rural" Open Carry License
California law does allow for a specific Open Carry License, but it is extremely limited:
Population Cap: These are only available in counties with a population of less than 200,000 people.
Geographic Limit: If issued, this license is only valid within that specific county. You cannot take that "open" permit into a populous county like Contra Costa or Alameda and continue to carry openly.
So .... What are the Gun Laws in California Today with Respect to Open Carry?
In January 2026, the Ninth Circuit Court of Appeals issued a major ruling in Baird v. Bonta, stating that California’s ban on open carry in populous counties is unconstitutional.
- Current Status: While the court ruled against the ban, the decision has been stayed (paused) because the California Attorney General petitioned for an en banc rehearing.
- What this means for you: Until the court issues its final mandate and the stay is lifted, the existing bans remain in effect. You should not attempt to open carry in Lafayette or other urban areas based on this headline alone, as law enforcement is still directed to enforce the current statutes.
4. Narrow Exceptions (No License Needed)
There are very specific instances where open carry is legal without a permit, typically in "non-public" settings:
Daniel Horowitz and his legal team defend the rights of gun owners under the 2nd Amendment. If you are a lawful gun owner facing criminal charges or gun seizure call Daniel Horowitz to defend your rights. Call (925) 283-1863.
