Ninth Circuit reconsiders challenge to California restrictions on open carry of firearms

SEATTLE (CN) — An en banc panel of the Ninth Circuit appeared confused at times with arguments about California laws restricting the open carry of firearms.

Attorney Amy Bellantoni, representing a Siskiyou County man challenging statutes she said criminalize open carry, asked the appeals court to prohibit the state from enforcing those laws. She argued the laws criminalized a natural right that existed before the formation of any government.

“These statutes, by threat of criminal penalties, forbid the general public from possessing a loaded firearm,” Bellantoni said.

The questions came quickly.

U.S. Circuit Judge Eric Miller, a Donald Trump appointee, said the landmark case on point — New York State Rifle & Pistol Association v. Bruen— said the law did allow certain prohibitions on open carry. Other judges questioned whether Bellantoni’s client was using a facial challenge, meaning the laws were unconstitutional in all respects, or an as-applied challenge: the laws are constitutional, except when enforced in a specific way.

Bellantoni said Bruen requires a “historical analogue” to exist for a firearm prohibition to pass muster. That means a similar law restricting firearms had to exist at the time of the Second Amendment’s ratification for a present-day law to prevail.

A lower court judge in 2023 ruled against Bellantoni’s client. However, in January, a three-judge appeals panel reversed that ruling in a split decision. It found that California’s restriction on open carry in counties with populations over 200,000 had no historic justification under Bruen.

That triggered Wednesday’s hearing before the en banc court.

Bellantoni said her client’s suit didn’t focus on California’s licensing scheme but instead was a challenge to its restrictive laws that could impose criminal penalties.

“In all circumstances, this statute would be unconstitutional,” Bellantoni said, indicating the challenge was facial. “It bans the actual right itself.

“The right to bear arms exists before the licensing, not because of it,” she added.

One judge said that, under Bellantoni’s theory, any licensing scheme would be considered unconstitutional. Bellantoni countered that open carry has never faced licensing regulations in the nation’s history, which makes them fail under Bruen.

Arguing for California, attorney Samuel Harbourt argued states are empowered to impose licensing requirements on firearms.

According to Harbourt, Bruen allows a restriction on the manner of carry, like open or concealed. California isn’t imposing a ban.

U.S. Circuit Judge Kenneth Lee, a Trump appointee, said no restriction on open carry has existed in the past.

“Shouldn’t we give at least some deference to that?” asked Lee, who sided with the majority in January’s decision that reversed the lower court.

Harbourt argued Bruen’s purpose isn’t to freeze 18th and 19th century regulations in place. Instead, it instructs courts to examine historic laws through the lens of the right of armed self-defense.

California allows people to concealed carry, which Harbourt called an effective mechanism of self-defense.

One judge questioned how difficult it is for a Californian to obtain a concealed carry license. That potentially could lead to a scenario where someone couldn’t open or concealed carry, as they couldn’t get a license for either.

Given a chance to rebut, Bellantoni said “manner of carry” referred to what people today would consider brandishing or menacing, not merely openly carrying a firearm.

“Open carry had no negative context and never had any negative context,” she added.

The en banc court took the matter under submission.

The court included Chief Judge Mary Murguia, a Barack Obama appointee, as well as U.S. Circuit Judges Milan Smith Jr., a George W. Bush appointee; Morgan Christen, Jacqueline Nguyen, John Owens and Michelle Friedland, all Obama appointees; Ryan Nelson and Bridget Bade, Trump appointees; and Ana de Alba, a Joe Biden appointee.