California has effectively banned ordinary people from openly carrying handguns in the places where almost everyone lives, while insisting that a rural licensing “escape valve” still preserves their rights. Two rural gun owners say that the escape valve doesn’t exist in the real world. A recent Ninth Circuit decision partly agreed, striking down the urban open‑carry ban while leaving the on‑paper rural licensing system intact.
How California Split Its Open‑Carry Rules
Two distinct California gun laws are at issue in these filings: the urban open‑carry ban and the statewide licensing scheme that governs both concealed and open carry. Since each law doesn't have an official title but is referred to through the relevant sections of the California Penal Code, we will call them the “urban open-carry ban” and the “rural licensing scheme,” which is how the court refers to them.
The urban open-carry ban makes it a crime to carry a gun (loaded or unloaded) in public in any county with a population over 200,000, covering about 95 percent of Californians and the state’s major cities. These provisions evolved over a long period.
California allowed public carry (open or concealed) with essentially no regulation since it first became a state in 1850 for over a century. Then, in 1967, the Mulford Act was passed in response to the Black Panthers’ armed protests. This law criminalized carrying loaded guns in public while still allowing unloaded open carry. In 2012, the Legislature went further and criminalized even unloaded open carry in urban areas, making California the only Ninth Circuit state to ban open carry for the overwhelming majority of residents.
Enforcement is through ordinary criminal prosecution. Anyone openly carrying a handgun in public in these urban counties without fitting into narrow statutory exemptions faces arrest, potential incarceration, and fines.
The Rural Escape Valve
At the same time as the urban open-carry ban, the Legislature preserved a narrow exception by authorizing open‑carry licenses in more sparsely-populated areas. This “rural licensing scheme,” on its face, requires sheriffs and police chiefs to issue a license if an applicant satisfies objective criteria. Such criteria include: good moral character, residency, training, and (historically) “good cause” (good cause is no longer a consideration after the Supreme Court's decision in Bruen). The law then gives the issuing authority a choice between a concealed‑carry license, available statewide, and an open‑carry license that may be issued only in counties with fewer than 200,000 residents and is valid only within the issuing county.
In practice, however, this scheme has functioned less as a genuine avenue for open carry than as a theoretical safety valve. Sheriffs in under‑200,000‑population counties have declined to develop open‑carry application forms or procedures, have pre‑filled state forms to steer applicants into concealed‑carry only, and have publicly stated that they will not issue open‑carry licenses, with the result that the Department of Justice’s own records show zero open‑carry licenses issued anywhere in California since the 2012 changes took effect.
Two Rural Plaintiffs Hit a Wall
Mark Baird of Siskiyou County and Richard Gallardo of Shasta County are law‑abiding rural gun owners who want to carry handguns openly in public for self‑defense. In both counties, the sheriffs offer only concealed‑carry forms, have stated they will not issue open‑carry licenses, and have denied the men’s attempts to apply, even though state law says applications and licenses must run through a person’s county of residence.
The two sued the California attorney general, alleging that the urban open‑carry ban criminalizes open carry across most of the state while the rural licensing scheme’s “may‑issue” design and universal non‑issuance in rural counties leave them with no lawful way to exercise what they view as a core right to openly carry for self‑defense without risking arrest and prosecution.
Baird's lawsuit attacks both the criminal prohibitions and the licensing framework as unconstitutional under the Second and Fourteenth Amendments. It argues that the urban open‑carry ban flatly forbids him from openly carrying a handgun for self‑defense in the vast majority of the state, while the rural licensing scheme, though nominally “may‑issue” for open carry in under‑200,000‑population counties, is administered in a way that ensures no licenses are ever issued.
How the District Court Ruled
The district court first cut back the case. It allowed only facial challenges and dismissed the plaintiffs’ as‑applied attack on the rural licensing scheme. The court reasoned that they had sued only the attorney general, not the local sheriffs who actually issue or deny licenses, so a judgment against the state would not fix any injury caused by the sheriffs’ non‑issuance.
On the remaining claims, the court treated California’s regime mainly as a licensing system, not a ban. It accepted that open carry for self‑defense is covered by the Second Amendment, but concluded that the urban open‑carry restrictions and associated licensing rules fit within the nation’s historical tradition of regulating how people carry guns. It therefore upheld the scheme, granted summary judgment to the state, and denied Baird’s request for a preliminary injunction as moot.
Ninth Circuit Strikes Down Urban Ban
The Ninth Circuit largely disagreed. In an opinion by Judge VanDyke, the court struck down the urban open‑carry ban but left the rural licensing provisions in place.
For the urban ban, the panel applied Bruen’s text‑and‑history test and held that open carry is deeply rooted in American tradition. It stressed that there were no broad open‑carry bans at the Founding or Reconstruction, and that 19th‑century decisions consistently allowed states to forbid concealed carry while treating open carry as the protected way to bear arms.
Because California’s law responds to ordinary public‑safety concerns rather than new technology, the absence of historical analogues made the case “straightforward,” and the court rejected the state’s attempt to re‑label the urban provisions as mere “licensing.” When no one can lawfully open carry in counties where about 95 percent of Californians live, the court said, the law functions as a ban.
On that basis, the panel held that the statutory prohibition on open carry in counties over 200,000 residents violates the Second and Fourteenth Amendments, both facially and as applied to Baird.
Rural Licensing Scheme Upheld
The court reached the opposite result for the rural licensing scheme. It treated the under‑200,000‑population provisions as as facially consistent with Bruen’s description of shall‑issue public‑carry regimes system that obligates sheriffs and police chiefs to issue open‑carry licenses when applicants meet objective criteria, noting that Bruen itself indicates such public‑carry licensing frameworks are generally permissible so long as a general desire for self‑defense is enough.
Baird’s separate, as‑applied claim about rural officials refusing to issue any open‑carry licenses stayed dismissed for lack of standing, because he sued only the attorney general and not the local licensing officials; the panel said that kind of non‑issuance challenge would have to be brought in a new as‑applied case against those local officials.
Related Resources
- Eighth Circuit Says Commutation Doesn’t Bar Appealing a Criminal Sentence (FindLaw's Federal Courts)
- Sixth Circuit Upholds Gun Ban for the Undocumented (FindLaw's Federal Courts)
- 11th U.S. Circuit Court of Appeals Upholds Georgia Federal Hate Crime Convictions of Ahmaud Arbery’s Killers (FindLaw's Federal Courts)
