Major 2nd Amendment Victory in Baird vs Bonta Open Carry is Now Legal In California
California's open carry ban has been ruled unconstitutional by the 9th Circuit Court of appeals in a case titled 'Baird v. Bonta'. The ruling was published on January 2, 2026. Don't go walking into Starbucks with your gun in sight quite yet. There is a chance that the 9th Circuit will review the case with all the judges voting. But still, this is a major victory for 2nd Amendment rights.
NOTE TO CRIMINAL DEFENSE LAWYERS: We emphasize that every open carry criminal case must be fought by raising the Baird v Bonta decision and on grounds that the law is void for vagueness, vague as applied and in violation of the 2nd Amendment on all grounds raised in Baird including those grounds/arguments rejected by the Ninth Circuit.
An excellent Supreme Court brief on Open Carry from the Wolford v. Lopez case can be viewed here: 'Open Carry'
The entire Published Baird v Bonta decision can be viewed here:Baird v Bonta
The first part of this blog is an overview of the case. The second part is a view of the case with quotations from the decision, more background and greater detail.
Case Overview
In a 2-1 decision, the United States Court of Appeals for the Ninth Circuit partially affirmed and partially reversed a district court's summary judgment in favor of California Attorney General Rob Bonta. The case involves a Second Amendment challenge to California's restrictions on the open carry of firearms in public. Plaintiff Mark Baird, a resident of rural Siskiyou County, sought to openly carry a holstered handgun for self-defense throughout the state, including in more populous areas.
The opinion was authored by Judge Lawrence VanDyke (joined by Judge Kenneth K. Lee), with Judge Lee concurring and Senior Judge N. Randy Smith concurring in part and dissenting in part. The panel applied the framework from New York State Rifle & Pistol Ass'n v. Bruen (597 U.S. 1, 2022), which requires gun regulations to be consistent with the nation's historical tradition of firearm regulation.
Key Points of the Case:
The Core Argument: Plaintiffs argue that California’s ban violates the Second Amendment because the prohibited firearms are typically used for lawful purposes like self-defense. They contend the law’s definitions (based on features like pistol grips or folding stocks) are arbitrary.
Judge Benitez’s Ruling: U.S. District Judge Roger Benitez has twice ruled the ban unconstitutional (in 2021 and 2023). In his famous 2021 opinion, he likened the AR-15 to a 'Swiss Army Knife'—a versatile tool for home and homeland defense.
The 'Bruen' Standard: After the Supreme Court's Bruen (2022) decision, the case was remanded to be re-evaluated under a new 'text and history' test, which requires the government to prove a gun regulation is consistent with the nation's historical tradition of firearm regulation.
Current Status (January 2026):
As of early 2026, the California assault weapons ban remains in effect. While Judge Benitez struck down the law again in late 2023, the Ninth Circuit Court of Appeals issued a stay on that ruling. The case has been held in abeyance (on hold) pending the outcome of related cases like Duncan v. Bonta (regarding magazine capacity). Legal experts, including Daniel Horowitz, note that the case is likely headed to the U.S. Supreme Court to provide a final, nationwide resolution on assault weapon bans.
What 'Stay' and Further Review Mean
This landmark decision is presently 'Frozen' so that the California Attorney General can challenge the ruling. This 'stay' temporarily suspends a court's ruling to maintain the status quo during appeals. Under Federal Rules of Appellate Procedure, California can (and is expected to) request a stay pending en banc consideration or Supreme Court certiorari. This prevents immediate implementation of the panel's reversal. The Ninth Circuit has a history of en banc review in Second Amendment cases, often altering panel outcomes favoring gun rights.
Every open carry case should raise the Baird v Bonta ruling as an objection to the prosecution. Defense counsel should argue that since the decision is 'stayed' the criminal prosecution should likewise be 'stayed'.
In essence, the law is unconstitutional and open carry is legal except the rule is frozen in time. Paradoxically, this means that people can still be prosecuted even though the law is unconstitutional.
California's Regulatory Scheme:
California generally prohibits the open carry of firearms in public.
In counties with populations over 200,000 (covering approximately 95% of the state's population, including major urban areas), open carry is completely banned, with no licensing option available.
In rural counties with populations under 200,000, open carry licenses may be issued under a 'shall-issue' regime where a general desire for self-defense suffices as good cause.
Concealed carry is available statewide via a separate shall-issue licensing system (post-Bruen reforms eliminated discretionary 'good cause' requirements for concealed carry).
Plaintiff's Challenges:
Baird brought facial and as-applied challenges to both the outright ban on open carry in populous ('urban') counties and the licensing requirements for open carry in rural counties.
Holding:
Reversed in part: The court held that California's ban on open carry in populous counties is unconstitutional under the Second Amendment. The panel remanded with instructions to enter judgment in favor of Baird on this claim.
Affirmed in part: The court upheld the district court's rejection of Baird's challenges to the open-carry licensing scheme in rural counties. Baird waived his as-applied challenge (by not adequately briefing it on appeal), and his facial challenge failed because the rural scheme is a permissible shall-issue regime consistent with Bruen.
Key Reasoning on the Urban Open-Carry Ban:
Under Bruen's text-and-history test, the Second Amendment's plain text covers the conduct of openly carrying handguns for self-defense in public.
The burden shifts to the government to demonstrate a historical tradition of analogous regulations.
Historical evidence from the Founding era and Reconstruction shows that open carry was widely permitted and often the preferred or default manner of public carry. Many 19th-century cases explicitly struck down bans on open carry (e.g., Nunn v. State, 1 Ga. 243 (1846): 'a prohibition against bearing arms openly, is in conflict with the Constitution, and void').
While some historical laws restricted concealed carry (viewed as deceptive or dangerous), there is no tradition supporting outright bans on open carry.
California failed to identify any 'distinctly similar' historical regulation justifying a broad ban on open carry in populated areas. Modern concerns about urban density or public safety do not override the absence of historical analogs.
The court rejected California's argument that states can 'channel' carry by banning one manner (open) while allowing another (concealed), noting that historical traditions did not support eliminating open carry entirely, especially where it was the historically protected norm.
The majority emphasized that constitutional rights do not 'hinge on a Where’s Waldo quiz' based on county population thresholds.
Key Reasoning on the Rural Licensing Scheme:
Baird's as-applied challenge was waived due to inadequate briefing.
Facially, the rural open-carry licensing is a shall-issue system (self-defense suffices), which Bruen explicitly suggested is constitutional.
No need to invalidate it on the record presented.
Concurring and Dissenting Opinions:
Judge Lee's Concurrence: Agreed with the majority but wrote separately to emphasize broader implications.
Judge Smith's Partial Concurrence/Partial Dissent: Agreed that the rural scheme is constitutional but dissented on the urban ban, arguing the majority 'got this case half right.' He contended that states may eliminate one manner of carry (open) if another (concealed) remains available, and that historical analogs for concealed-carry bans could extend to modern channeling of carry modes for public safety.
Implications:
This ruling invalidates California's effective statewide ban on unlicensed open carry in most areas, potentially allowing open carry in urban counties unless further appealed.
The ban remains in effect pending potential rehearing en banc (which means all the judges, not just the 3 who ruled on this case) by the full Ninth Circuit or Supreme Court review. California's Attorney General's office stated it is reviewing the opinion and considering all options.
The decision aligns with post-Bruen trends expanding public carry rights but leaves concealed-carry licensing intact and distinguishes between total bans and regulatory channeling.
It contributes to circuit splits on the extent to which states can prefer one mode of carry over another. This means the case may end up in the United States Supreme Court. Recently the Supreme Court sat back and let a lot of lower courts rule on gun cases with the idea that once the Supreme Court ruled it would have a broad range of opinions so that it could fashion a single ruling that applied nationwide.
The Baird v. Bonta Case Discussed in Detail
Why Baird v. Bonta is a critical 2nd Amendment Case
Baird v. Bonta, No. 24-565 (9th Cir. Jan. 2, 2026), represents a pivotal Second Amendment case that scrutinizes California's longstanding restrictions on the open carry of firearms under the Second and Fourteenth Amendments. Initiated as a civil rights lawsuit under 42 U.S.C. § 1983, the case was brought by plaintiff Mark Baird, a resident of rural Siskiyou County, California, who sought declaratory and injunctive relief against California's penal code provisions that effectively prohibit open carry in most of the state. The Ninth Circuit panel, in a 2-1 decision authored by Judge Lawrence VanDyke and joined by Judge Kenneth K. Lee, with Senior Judge N.R. Smith concurring in part and dissenting in part, affirmed in part and reversed in part the district court's grant of summary judgment to California Attorney General Rob Bonta. Specifically, the court invalidated California's 'urban open-carry ban'—which prohibits open carry in counties with populations exceeding 200,000—as unconstitutional under the framework established by the U.S. Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), due to a lack of analogous historical regulations from the Founding or Reconstruction eras. However, the panel upheld the facial validity of the state's licensing requirements for open carry in less populous 'rural' counties.
This ruling has generated significant attention in legal and gun rights communities, as it potentially disrupts California's firearm carry regime, which has historically favored concealed carry over open carry. The decision underscores the post-Bruen emphasis on historical tradition in Second Amendment jurisprudence, rejecting modern policy justifications untethered to Founding-era practices. Nonetheless, the opinion's immediate impact is tempered by procedural stays and the likelihood of further review, as discussed in detail below.
Factual and Procedural Background
Mark Baird, described in the complaint as a 'law-abiding firearm owner' residing in Siskiyou County (population approximately 42,498 as of the 2020 Census), alleged that he desired to openly carry a loaded handgun for self-defense while traveling throughout California, including in more populous areas. Baird claimed he had made multiple attempts to obtain an open-carry license from local authorities but was repeatedly informed that 'no Open Carry licenses will be issued' in his county, despite its rural status qualifying under state law. California's open-carry framework is governed by several Penal Code sections: § 25850 criminalizes carrying a loaded firearm in public without a license; § 26350 prohibits openly carrying an unloaded firearm in public without a license; and §§ 26150 and 26155 authorize sheriffs and police chiefs to issue open-carry licenses, but only in counties with populations under 200,000, and such licenses are valid solely within the issuing county. Concealed-carry licenses, by contrast, are available statewide under a 'shall-issue' regime post-Bruen, requiring only good moral character and a general self-defense need.
As the majority opinion detailed: 'Roughly 95% of California’s population lives in counties with populations over 200,000, and thus California’s open-carry ban acts as a total ban on open carry for 95% of the state’s population.' Baird's travels frequently took him into urban counties like Sacramento and Los Angeles, where open carry is outright prohibited, exposing him to criminal penalties including fines and imprisonment. Baird filed his initial complaint in April 2019 in the U.S. District Court for the Eastern District of California, challenging the laws under the Second, Fourth, and Fourteenth Amendments. Following the Supreme Court's decision in Bruen in June 2022, Baird amended his complaint and moved for a preliminary injunction. The district court, presided over by Judge Kimberly J. Mueller, denied the injunction and later granted summary judgment to Bonta in November 2023, applying a pre-Bruen means-end scrutiny that was subsequently deemed erroneous.
A prior Ninth Circuit panel had reversed the denial of the preliminary injunction in Baird v. Bonta, 81 F.4th 1036 (9th Cir. 2023), remanding for further proceedings under Bruen. On remand, the district court again sided with the state, prompting this appeal argued on June 24, 2025, in Seattle. The panel's de novo review focused on Baird's facial and as-applied challenges to the urban ban and rural licensing scheme.
Legal Issues
Baird's claims centered on two primary components of California's regime: (1) the outright prohibition on open carry in 'urban' counties (populations over 200,000), which he argued constituted a total ban on a core Second Amendment right; and (2) the licensing requirements for open carry in 'rural' counties (under 200,000), which he contended were overly burdensome and discretionary in practice. The overarching question was whether these restrictions align with Bruen's mandate: If the Second Amendment's plain text covers the conduct, the regulation is presumptively unconstitutional unless the government demonstrates it is 'consistent with this Nation’s historical tradition of firearm regulation.' Baird asserted both facial challenges (arguing the laws are unconstitutional in all applications) and as-applied challenges (contending their enforcement against him specifically violated his rights).
Bruen is the Key
Application of the Bruen Framework
The majority rigorously applied Bruen's two-prong test, emphasizing a text-and-history approach over interest-balancing.
Step 1: Plain Text Coverage
The court swiftly concluded that open carry is protected by the Second Amendment's text, which guarantees the right to 'keep and bear Arms.' Drawing from District of Columbia v. Heller, 554 U.S. 570 (2008), and Bruen, the majority noted: 'The term 'bear arms' naturally encompasses public carry, and most particularly the open carry of a loaded gun for self-defense.' Historical evidence showed that open carry was the predominant mode of public carry at the Founding, with concealed carry often viewed suspiciously as indicative of illicit intent. The opinion quoted Bruen: 'If 'the Second Amendment’s plain text covers an individual’s conduct' that is proscribed by a firearms regulation, then 'the Constitution presumptively protects that conduct.'' California's arguments that open carry falls outside the Amendment's scope were dismissed as contrary to Bruen's rejection of means-end scrutiny.
Step 2: Historical Tradition
For regulations addressing 'general societal problem[s]' like public safety that predate the Founding, Bruen requires a 'distinctly similar historical regulation' to justify the modern law. The majority determined that open-carry bans address such longstanding concerns, obviating the need for Bruen's 'nuanced analogue' approach reserved for novel technological issues. A comprehensive review of historical sources revealed no analogous bans.
Founding Era (circa 1791): No statutes directly banned open carry. Regulations focused on misuse, such as a 1790 Ohio territorial law prohibiting firing guns near buildings but permitting open carry. A 1786 Pennsylvania statute barred discharging firearms on highways but explicitly allowed 'travelling with such arms.' The majority observed: 'there were no direct statutory bans on the carry of arms' during this period, and open carry was 'unquestionably part of our Nation’s history and tradition.' English antecedents, like the 1328 Statute of Northampton, were interpreted narrowly in Bruen as prohibiting only 'affray' (terrorizing with arms), not peaceful carry.
Antebellum and Reconstruction Eras (1820s–1870s): Open carry received even stronger protections. State courts in Alabama, Georgia, Louisiana, Tennessee, and Kentucky invalidated concealed-carry bans but affirmed open carry as the constitutionally preferred method. In State v. Reid, 1 Ala. 612, 616–17 (1840), the court held: 'A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.' Similarly, Nunn v. State, 1 Ga. 243, 251 (1846), declared a ban on open carry 'in conflict with the Constitution, and void.' By the time of the Fourteenth Amendment's ratification in 1868, six state supreme courts had reinforced this distinction, viewing concealed carry as potentially regulable but open carry as sacrosanct for self-defense.
California's proffered analogues—such as 19th-century bans on concealed carry or restrictions in sensitive places—were deemed insufficiently similar, as they did not impose total bans on open carry. The majority cautioned against 'high-level' analogies that could 'bless bans on conduct that was indisputably unregulated' at the Founding, emphasizing: 'It is hard (if not impossible) to find any practice associated with the carriage of firearms that received more explicit constitutional protection under the Second Amendment in the nineteenth century than open carry.'
Bicycle Guns
Talk about open carry! There are guns designedfor children to carry on their bicycles. There is obviously a long U.S. history of open carry. Every John Wayne movie has people open carrying on horses, going into bars (saloons!) etc.. In our opinion, all open carry and Concealed Weapons bans in restaurants that serve alcohol are unlawful.
Key Holdings
Urban Open-Carry Ban: Reversed. The prohibition in counties over 200,000 violates the Second Amendment, as 'there is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation.' Baird's facial challenge succeeded under Wolford v. Lopez, 116 F.4th 959, 984 (9th Cir. 2024), which holds that a regulation lacking historical tradition is 'unconstitutional in every conceivable application.' The court remanded with instructions to enter judgment for Baird on this claim.
Rural Licensing Scheme: Affirmed. Baird waived his as-applied challenge by failing to raise it in his opening brief, forfeiting arguments about local officials' discretionary denials. His facial challenge failed, as the scheme is a 'shall-issue' system requiring only 'good moral character' and a general self-defense justification, consistent with Bruen's endorsement of objective licensing regimes. The majority noted: 'At least on its face, California’s rural licensing scheme is a shall-issue regime under which a general desire for self-defense is sufficient to obtain a permit.' However, the opinion highlighted potential issues with the application form's misleading emphasis on concealed carry (mentioning it 67 times without referencing 'open carry'), but deemed this insufficient for facial invalidation.
Dissent (Judge N.R. Smith, Concurring in Part and Dissenting in Part)
A dissent is when a judge loses the vote but writes his/her opinions expressing his/her point of view. It is not the law because the majority won the vote.
Judge Smith concurred in upholding the rural licensing but dissented on the urban ban, arguing it does not infringe the Second Amendment because California permits concealed carry statewide as an alternative. He contended the majority misapplied Bruen by ignoring historical precedents allowing states to regulate the 'manner' of carry—banning one form (e.g., concealed) while permitting another (open)—as in Reid and Nunn. Quoting Bruen: 'Nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes,' which may include manner restrictions. Smith viewed California's scheme as addressing 19th-century concerns like violence and public security, with analogues in antebellum laws preferring open carry but allowing alternatives.
He criticized the majority for overlooking Baird's waiver of as-applied claims and suggested severing the population and territorial limits to expand open-carry licensing statewide. Under United States v. Salerno, 481 U.S. 739 (1987), the scheme survives facial challenge if constitutional in some applications. Smith warned of a circuit split with the Second Circuit's Frey v. City of New York, 157 F.4th 118 (2d Cir. 2025), which upheld manner restrictions, potentially inviting Supreme Court intervention.
The Stay of the Case and Its Implications
Even though the 2nd Amendment won, the amendent (law/ruling) is on hold.
The panel's decision, filed on January 2, 2026, does not take immediate effect due to procedural rules governing appellate mandates. Under Federal Rule of Appellate Procedure 41, the mandate— which enforces the ruling—typically issues no earlier than 21 days after the opinion's entry, potentially around January 23, 2026, absent extensions. However, California Attorney General Rob Bonta announced plans to file a petition for rehearing en banc by January 16, 2026, which automatically stays the mandate until the Ninth Circuit resolves the petition. If en banc review is granted, the mandate remains withheld pending a full court's decision, which could take months or longer. As of January 14, 2026, no en banc order has been issued, and the California Department of Justice has confirmed in an information bulletin that 'California's Firearm Open Carry Laws Currently Remain in Effect.' The state may also seek an additional stay pending Supreme Court certiorari if en banc is denied.
This stay maintains the status quo, meaning California's open-carry bans under Penal Code §§ 25850 and 26350 continue to be enforced statewide, with no legal open carry permitted in urban counties and licensing hurdles persisting in rural ones. Law enforcement agencies have been advised accordingly, and individuals attempting open carry risk arrest and prosecution until the mandate issues. The Ninth Circuit's history of en banc reversals in Second Amendment cases—such as in Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc)—heightens the likelihood of overturning this pro-gun rights panel decision, as noted by commentators and gun rights organizations.
The implications are multifaceted:
- Short-Term Practical Effects: With the stay in place, there is no immediate change for Californians. Gun owners like Baird cannot openly carry without facing penalties, preserving public safety measures amid ongoing litigation. This delay allows the state time to prepare potential legislative responses, such as amending licensing statutes to create urban open-carry permits or imposing new restrictions (e.g., on loaded carry).
- Broader Second Amendment Jurisprudence: If the panel decision survives, it could establish unlicensed open carry (at least unloaded) in California's urban areas, affecting 95% of the population and setting precedent for other circuits to strike down similar bans. It reinforces Bruen's strict historical test, potentially invalidating other 'manner' restrictions nationwide. However, a circuit split with Frey could prompt Supreme Court review, clarifying whether states may ban one carry mode if another is available.
- Policy and Political Ramifications: The ruling highlights tensions between gun rights and public safety in a state with strict firearm laws, rooted in historical events like the 1967 Mulford Act (banning loaded open carry in response to Black Panther demonstrations). En banc or Supreme Court reversal could embolden anti-gun advocates, while affirmation might inspire challenges in other blue states. For rural residents like those in Siskiyou County, it underscores licensing disparities, potentially leading to as-applied challenges if implementation falters.
Hire the Best 2nd Amendment Lawyers
Daniel Horowitz is a well known 2nd Amendment lawyer. If you face gun charges and are innocent, acted in self or need to pose a constitutional challenge, call Daniel Horowitz at (925) 283-1863
Daniel Horowitz is a prominent trial attorney based in Lafayette, California, recognized as a State Bar of California Certified Criminal Defense Specialist—a distinction held by a small fraction of attorneys in the state. He is well-known for handling high-profile, complex cases and serving as a legal commentator on national networks like CNN, Fox News, and MSNBC.
Qualifications in Gun Cases & Second Amendment Law
Horowitz specializes in defending the constitutional rights of gun owners, particularly in the wake of the U.S. Supreme Court’s landmark decision in New York State Rifle & Pistol Association v. Bruen.
His specific qualifications and experience in this area include:
Criminal Defense Specialization: He is one of approximately 200 attorneys in California certified as a specialist in criminal law, which requires rigorous testing and extensive trial experience.
Second Amendment Litigation: He represents citizens in both criminal and civil matters related to:
Self-Defense: Defending individuals who have used firearms for legitimate self-protection or defense of property.
Regulatory Compliance: Cases involving 'unsafe storage' charges and navigating California’s evolving firearm statutes.
High-Stakes Experience: In 1999, he represented a defendant in what the ATF claimed was the nation’s largest black-market weapons trafficking case at the time.
Constitutional Advocacy: His practice emphasizes 'out of the box' constitutional arguments. He maintains an active legal blog analyzing major Second Amendment rulings, such as Baird v. Bonta (concerning California's open carry laws) and Miller v. Bonta (the assault weapons ban).
Trial Track Record: With over 200 jury trials to verdict, he has the courtroom experience necessary to handle complex firearm-related felonies and has successfully negotiated felony gun charges down to misdemeanors.
