A federal appellate panel has told a judge to quickly reexamine her refusal to stop California from barring residents from openly carrying guns, saying the judge failed to consider the merits of a constitutional challenge to the ban.
The Sept. 7 decision was penned by Circuit Judge Lawrence Van Dyke, with agreement from Circuit Judges Kenneth Lee and N. Randy Smith, of the U.S. Court of Appeals for the Ninth Circuit. The decision favored plaintiffs Mark Baird and Richard Gallardo in their action against California Attorney General Rob Bonta.
In 2019 in U.S. District Court for the Eastern District of California, plaintiffs sued Bonta to overturn the state's effective ban on residents openly carrying guns in public. Plaintiffs pointed out state law, with narrow exceptions, prohibits Californians in counties of more than 200,000 residents, which is 95 percent of all residents, cannot secure an open-carry license. Certain individuals of the remaining 5 percent may seek a license from their sheriff or police chief, but no evidence has been put forth that such licenses have ever been issued, according to court papers.
Plaintiffs asked for an injunction, contending the state is violating the U.S. Constitution's Second Amendment, which guarantees Americans the right to keep and bear arms.
U.S. Chief District Judge Kimberly Mueller denied the injunction request, determining the public interest in maintaining the law overrode any need to consider the merits of plaintiffs' case.
On appeal, Ninth Circuit Judge Van Dyke and his colleagues found otherwise.
"This was error. In a case presenting a constitutional claim, it is always necessary for a district court to determine whether a plaintiff is likely to succeed on the merits. This means recognizing that, in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm and strongly tips the balance of equities and public interest in favor of granting a preliminary injunction," Van Dyke said.
Van Dyke noted that for the state to win the day, it must point to a "historical analogue," in which the right to openly carry a gun for self-defense was curtailed to a similar degree as does California's current law.
Plaintiffs' case hinged on the 2022 U.S. Supreme Court ruling in N.Y. State Rifle & Pistol Ass'n v. Bruen. That ruling lets government regulate open-carry, if it can show its law is comparable to a gun regulation broadly in effect when the Second or Fourteenth Amendments were ratified.
The Second Amendment was ratified in 1791 and the Fourteenth in 1868. The Fourteenth gave citizenship to all people born or naturalized in the U.S., and its Due Process Clause incorporated the Second Amendment.
Van Dyke instructed District Judge Mueller to take another look at the injunction petition, and to do so "expeditiously," because the petition has been on the table more than four years.
"Even a brief deprivation of a constitutional right causes irreparable injury," Van Dyke pointed out.
Plaintiffs have been represented by Amy L. Bellantoni, of The Bellantoni Law Firm, of Scarsdale, N.Y.