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.
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.
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.
