In light of the violent events taking place around the country involving firearms, various states’ “open carry” restrictions are facing Second Amendment challenges. A new ruling last week from a federal court in Sacramento found that while California’s strict open carry requirements can withstand a Constitutional challenge for now, these laws may face additional challenges in light of a Ninth Circuit decision that is expected later this year.

In Baird v. Becerra (“Baird”), the two plaintiffs, who reside in Siskiyou and Shasta County respectively, alleged that they were unable to obtain an open carry license, in violation of their Constitutional rights. Under California law, a Sheriff of a county with a population under 200,000 is authorized to issue an open carry permit using the same criteria as concealed carry applications. A concealed carry permit may be issued if an applicant demonstrates: (1) good moral character; (2) “good cause” to issue the license; (3) residency in the county or city where the permit is sought; and (4) completion of the necessary training. An open carry license may be obtained only in the county where the applicant resides.

The Baird plaintiffs allege that they were wrongfully denied a permit to openly carry firearms in public for self-defense, citing District of Columbia v. Heller (“Heller”) in which the U.S. Supreme Court declared that the Second Amendment’s main purpose is to protect “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The plaintiffs sought an injunction to prevent the state from enforcing its open carry statutes, arguing that under Heller, the need for self-defense is sufficient “good cause” for a permit.

U.S. District Judge Kimberly Mueller denied the requested injunction, citing a California case that interpreted Heller to mean the Second Amendment does not extend a right to carry firearms in public. Judge Mueller also wrote that despite this precedent, the plaintiffs nonetheless raise “serious questions” regarding the Second Amendment, which are currently before the Ninth Circuit as it considers a similar challenge to Hawaii’s open carry ban.

In the pending Ninth Circuit case, Young v. Hawaii (“Young”), the Court will be rehearing the decision of a three-judge panel, which held that “the Second Amendment encompasses a right to carry a firearm openly in public for self-defense,” and that right is at the “core” of the Amendment. The Young decision, which will be binding in California, is expected to clarify the Constitutional scope of California’s open carry laws, especially in light of another challenge to California’s open carry laws currently before the Ninth Circuit, Nichols v. Newsom, which is currently stayed pending the Young decision. Young is scheduled for oral argument on September 24, 2020.

We will continue to monitor this changing legal landscape and report on further developments as they arise. A link to the Baird v. Becerra decision can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Doug White at Doug@whitebrennerllp.com, Nubia Goldstein at Nubia@whitebrennerllp.com, or Scott Miller at Scott@whitebrennerllp.com.