Federal court overturns California’s open‑carry ban as unconstitutional — concealed‑carry permit rules untouched; effect limited to 28 major counties

Court challenges 30 smaller counties, including Mendocino, for upholding open‑carry legality yet never granting a permit 

The 9th U.S. Circuit Court of Appeals has ruled that California’s ban on openly carrying firearms in counties with more than 200,000 residents violates the Second Amendment. In a 2–1 decision, the panel found that the state’s prohibition on open carry in its most populated counties — where roughly 95% of Californians live — cannot stand under the Supreme Court’s 2022 Bruen standard, which requires gun regulations to align with the nation’s historical tradition of firearm laws. The court reversed part of a lower court ruling and sent the case back for further proceedings.

The judges also raised concerns about how California handles open‑carry rules in counties with fewer than 200,000 residents. While state law technically allows those counties to issue open‑carry permits, the panel noted that in practice, many or perhaps all counties have issued none at all, calling the system inconsistent and potentially deceptive in how it treats residents’ Second Amendment rights

The ruling is expected to have a significant long‑term impact because it was issued as a published opinion, allowing it to be cited as precedent. However, the case itself is not over; it now returns to the federal district court in Sacramento, which had previously upheld California’s open‑carry ban.

For the moment, the published ruling applies to just 28 of California’s 58 counties.

Mark Baird, a Siskiyou County resident who was denied an open‑carry permit by the sheriff, challenged California’s laws. A second plaintiff, Richard Gallardo, brought a similar claim in Baird’s suit, Gallardo’s identical claim against Shasta County after he was also refused a permit to do open carry by the sheriff there.

Most law enforcement, even in red states, oppose open carry. The two men who filed this case don’t believe in law enforcement, offering up a theory growing popular on the right that everyone must do pretty much everything for themselves, without any assistance desired or sought from any officers or programs representing civil society. Why this theory was placed in this lawsuit is a bit of a head scratcher, as it has nothing to do with the now successful legal claim that everyone has a right to open carry under the Second Amendment. While this is a new view, its also the way things were for most of American history, the two majority judges claimed in their ruling.

The lawsuit uses strong libertarian language, repeatedly arguing that police have no legal duty to protect individuals and that, as a result, citizens must rely on themselves for personal protection.

Read the lawsuit. I found a whole world has been growing into the notion that all government is borderline illegal, or at least that every person should be equipped to do everything government can do.

Equally weirdly, the lawsuit — filed back in 2019 — ultimately accomplished nothing for either man. Filing issues disqualified their claims in counties with fewer than 200,000 residents, and both Siskiyou and Shasta fall into that “smaller county” category.

Although the plaintiffs ultimately prevailed, the ruling applies only to counties with more than 200,000 residents. Because neither man lived in one of those larger counties (at the time the lawsuit was filed), the open‑carry victory does not directly benefit them or the residents of any of the smaller counties, such as Mendocino.

Both plaintiffs had applied for open‑carry permits in smaller counties and were allegedly told by their respective sheriffs that no such permits would ever be issued. While state law allows these smaller counties to issue open‑carry permits, the lawsuit argued in 2019 that none had done so since 2012. In the 2026 decision, the court noted that the state still had not produced evidence of a single open‑carry permit being issued by any of the 30 counties legally authorized to grant them.

Baird, after being told by local authorities that open‑carry licenses would not be issued in his county, filed suit against the State of California, raising claims under the Second and Fourteenth Amendments. His complaint challenged both the urban open‑carry ban and the rural county licensing system — including the model used in Mendocino County, where open carry is also technically legal but, in practice, never occurs. The lawwsuit does not single out any California county as an outlier, but alleges that the state itself is conspiring with counties to dodge this newer, broader interpretation of the Second Amendment by making open carry legal but impossible.

Because of procedural issues, the ruling does not apply to Shasta, Siskiyou, or Mendocino County. Instead, it applies only to the larger counties that impose a complete ban on open carry.

However, the published ruling may make it easier for someone from one of those smaller counties to prevail in a future challenge. The case also revealed a striking fact: not a single open‑carry permit has been issued in any of the 30 counties where open carry is technically legal. California has 30 counties with populations under 200,000 that are allowed to issue open‑carry permits — yet, according to the court, the state has never produced evidence that even one permit has ever been granted.

Under current California law, the sheriff or police chief in any county with fewer than 200,000 residents — including Mendocino County, which has a population under 90,000 — may issue licenses allowing qualified residents to carry a loaded, exposed handgun. These open‑carry licenses are valid only within the county that issues them, but in all other respects they function the same as California’s concealed‑carry permits.

All three circuit judges on the panel were appointed by Republican presidents. Judge Lawrence VanDyke, appointed by President Donald Trump in 2020, wrote the majority opinion. He was joined by Judge Kenneth K. Lee, a Korean‑born judge appointed by Trump in 2018. The dissent was written by Judge N. Randy Smith, who was appointed by President George W. Bush. Smith agreed with parts of the majority’s reasoning and disagreed with others. Smith is from Idaho, and VanDyke previously served as Nevada’s solicitor general. Circuit judges are among the highest‑ranking federal judges, just below the U.S. Supreme Court.

Judge Lee, joined by Judge VanDyke, wrote a separate concurrence to emphasize what they described as California’s use of subterfuge to deny citizens their Second Amendment rights. This was separate because both they and the lower court excluded smaller counties, but the judges wanted to attack the legality of that system too. The state maintains that residents in counties with fewer than 200,000 people may apply for an open‑carry license. Yet the state also acknowledges it has no record of a single such license ever being issued, the judges wrote. One possible explanation, the judges wrote is that California has misled residents about how to apply for an open‑carry permit in those counties. While these observations do not affect the outcome of the current case, they could carry weight in future litigation because this is a published opinion, with the non binding concurrence attached.

Initially, the federal district court in Sacramento granted summary judgment to the State of California and rejected Baird’s claim. The court concluded that the Second Amendment did not protect Baird’s desire to openly carry a firearm and that California’s regulatory framework aligned with the nation’s historical firearm tradition. It also dismissed the as‑applied challenges to the rural licensing scheme on the grounds that the plaintiffs lacked standing.

The United States Court of Appeals for the Ninth Circuit reviewed the appeal. Applying the historical‑tradition test established in New York State Rifle & Pistol Ass’n v. Bruen, the court held that California’s ban on open carry in urban counties is inconsistent with the Second Amendment because the state could not point to any historical tradition supporting such a sweeping prohibition. The panel reversed the district court’s grant of summary judgment on the urban open‑carry ban and remanded the case with instructions to enter judgment for Baird on that issue.

At the same time, the panel affirmed the district court’s ruling on the rural licensing scheme, agreeing that Baird lacked standing to challenge it because of how he had not responded to a motion on the subject. The district court’s judgment was therefore affirmed in part, reversed in part, and remanded.

The decision does not address who may qualify for an open‑carry permit. Instead, the judges emphasized that if a licensing system exists but results in no one ever receiving a permit, that outcome itself raises a Second Amendment problem.

In his dissent, Judge Smith argued that California’s restrictions on open carry in more populated counties are constitutional. First, he wrote, open carry is not conduct protected by the plain text of the Second Amendment. Second, he said, the state may lawfully eliminate one form of public carry to protect public safety so long as another form remains available for self‑defense. Because California permits concealed carry, Smith concluded, it may restrict open carry.

Do open‑carry laws decrease or increase crime? It remains one of the hardest questions to answer, in part because so many partisan organizations and think tanks are determined to prove their point with dueling “studies.” The New York Times and other neutral analysts have concluded that no reliable pattern emerges when comparing crime rates in states that allow open carry with those that prohibit it.

What the research does show, with far more consistency, is that gun‑safety measures — from secure‑storage rules to mandatory hunter‑education courses — reduce accidental shootings and gun‑related injuries. In other words, while the courts continue to debate the constitutional boundaries of open carry, the clearest evidence points somewhere else entirely: toward the quieter, less political work of teaching people how to handle firearms safely.

And as California’s open‑carry fight now heads back to the lower courts, that may be the one conclusion everyone can agree on.