SAF Director of Legal Research and Education Kostas Moros cut straight to the heart of California’s open-carry problem.
“The plain text of the Second Amendment protects the right to bear arms – openly or concealed – and open carry has been the default manner of lawful carry for most of American history. California’s ban has no foundation in our nation’s tradition, and this Court should reaffirm that open carry is protected just as the Founders and generations of Americans understood it to be. As our brief argues, neither open nor concealed carry may be banned today.”
The Second Amendment protects the right to “bear arms.” California does not get to rewrite that command into a narrow government-approved privilege. The right is not limited to concealed carry. It is not erased because a state leaves behind a different, heavily regulated pathway to legally carrying. The Second Amendment is certainly not subject to California’s public-safety panic language dressed up as constitutional law.
The Second Amendment Foundation, joined by the California Rifle & Pistol Association, Minnesota Gun Owners Caucus, and Citizens Committee for the Right to Keep and Bear Arms, filed an amicus brief in Baird v. Bonta, now before the Ninth Circuit en banc. The brief supports plaintiff-appellant Mark Baird in his challenge to California’s restrictions on open carry.
The procedural posture is important. A Ninth Circuit panel previously held that California’s ban on open carry in counties with populations greater than 200,000 was inconsistent with the Second Amendment. That panel opinion has now been vacated after the Ninth Circuit voted to rehear the case en banc.
California’s scheme is not some small technical regulation. The panel opinion described California as banning open carry in counties with more than 200,000 residents, which covers roughly 95% of the state’s population. Even in smaller counties, the supposed ability to obtain an open-carry license is limited and, based on the record described by the panel, often theoretical at best.
SAF’s amicus brief attacks the state’s position at the foundation. The brief argues that history shows a longstanding tradition of lawful open carry predating the Founding, and that the Second Amendment protects open carry for lawful purposes. The brief also argues that concealed carry is protected today, even though some nineteenth-century laws treated concealed carry differently. The bottom line is simple: the state may not ban both, and it may not erase one mode of carry by pointing to the other.
California’s argument depends on treating open carry and concealed carry as interchangeable. Gun owners and gun rights groups say they are not. For most of American history, open carry was the ordinary, lawful way Americans bore arms in public. The brief notes that this included California from statehood in 1850 until 1967. Earlier generations understood open carry and concealed carry as different practices, not fungible substitutes.
That is where California’s position collapses. The state wants courts to accept a trade: California effectively bans open carry, leaves behind a highly regulated version of concealed carry, and then claims the Second Amendment supposedly survives.
The Supreme Court rejected that kind of logic in Heller. The government could not ban handguns because other firearms remained available. California should not be allowed to ban open carry because a version of concealed carry remains available.
The amicus brief also warns the Ninth Circuit not to misuse Bruen. SAF argues that some lower courts have turned Bruen’s “plain text” step into a way to avoid real historical analysis altogether. The brief describes this as a restrictive “Goldilocks” test, where a Second Amendment claim is either too far removed from the text to count or too specific to survive unless the plaintiff clears extra judge-made hurdles.
That is not Bruen. That is interest balancing by another name.
The Ninth Circuit should not turn the Second Amendment into a right that exists only after judges decide the conduct is sufficiently familiar, sufficiently popular, and sufficiently comfortable for the government. The Constitution does not ask California whether open carry makes politicians nervous. It asks whether the state can justify its restriction through this nation’s historical tradition of firearm regulation. Gun rights groups say California cannot meet that burden.
The brief also takes aim at California’s public-safety claims. California has argued that allowing open carry would create fear, panic, and chaos. SAF responds that Bruen rejected judge-empowering interest balancing and that public-safety appeals do not replace historical tradition. The brief further points out that the overwhelming majority of states allow open carry, and the predicted chaos has not followed.
California’s argument is the standard gun-control argument: trust the government, surrender the right, and accept whatever narrow substitute remains. That is not how constitutional rights work.
The right to bear arms is not a concealed-carry-only right. It is not an open-carry-only right. It is the right to bear arms.
As SAF’s brief concludes, California’s ban on open carry in populous counties fails Bruen and should be struck down.
The Ninth Circuit now has a clean choice. It can apply Bruen faithfully and recognize that California has no historical tradition supporting a broad open-carry ban. Or it can once again bend Second Amendment doctrine to save another California gun-control law.
Kostas Moros framed it exactly right: “neither open nor concealed carry may be banned today.”
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