Erwin Chemerinsky is the dean of the UC Berkeley School of Law. His latest book, “Campus Speech and Academic Freedom: A Guide for Difficult Times,” written with Howard Gillman, will be published later this month.
The Jan. 2 decision of the United States Court of Appeals for the 9th Circuit declaring unconstitutional California’s law prohibiting the open carrying of firearms reflects the ideology of two very conservative judges on the panel that considered the case. The state has promised to appeal Baird v. Bonta, and there is every chance that the decision will be overruled.
When I make an appellate argument, the first thing I want to know is who will judge the case. In federal appeals courts, cases are almost always initially heard by three judges chosen at random from the full circuit’s membership. In many cases, especially ones dealing with ideologically charged issues such as gun regulation, the identity of the judges is likely to make all the difference in the outcome.
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The opinion in Baird v. Bonta, was written by Judge Lawrence VanDyke, one of the most pro-gun rights judges in the country. Last year he dissented from a decision upholding a California law prohibiting guns in many public places and posted an 18-minute video on YouTube that not only criticized the ruling but showed him loading guns. So far as I know, this is the first judicial dissent in U.S. history to be posted as a video.
VanDyke’s opinion in Baird v. Bonta was joined by another conservative 9th Circuit judge, Kenneth Kiyul Lee, who, like VanDyke, was appointed by President Trump during his first term. Interestingly, the dissenting judge, N. Randy Smith, is also regarded as a conservative jurist, although he was appointed by President George W. Bush.
The California law at issue in Baird v. Bonta prohibited the open carrying of firearms in counties with populations exceeding 200,000 people. It effectively banned “open carry” where 95 percent of the state’s population lives.
Mariel Garza
Prohibiting open carry is not a new idea in California. The state first banned it in the 1967 Mulford Act, which was introduced by Republican Assemblyman Don Mulford in response to armed demonstrations by the Black Panthers at the state Capitol. Gov. Ronald Reagan signed the bill into law.
Such a regulation makes sense in terms of public safety. Research indicates that allowing people to openly carry guns increases the likelihood that the weapons will be used; permissive gun carry laws increase violence and stricter laws save lives.
Not that this mattered to the 9th Circuit panel. It held that the California law violated the Second Amendment to the Constitution – the right to bear arms.
VanDyke’s opinion relied on the Supreme Court’s 2022 decision in National Rifle & Pistol Association v. Bruen, which declared unconstitutional a New York law that allowed a person to carry a concealed weapon only if they could show a particular need to do so and obtained a permit.
Justice Clarence Thomas wrote the decision for the court, expanding the earlier 5-4 ruling in District of Columbia v. Heller that discovered in the Second Amendment an individual right to own and possess handguns at home. Bruen emphasized that gun regulations are constitutionally permissible only if they are of a type that existed historically in the United States.
Heller and Bruen represented stunning reversals in U.S. law. From 1791, when the Second Amendment was adopted, until 2008, when Heller was decided, not once did the Supreme Court declare unconstitutional any federal, state or local gun regulation. Rather, in the handful of cases about the Second Amendment, the court found that it meant what its wording says, a guarantee of a collective rather than a personal right to have guns, for militia service: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Paul Thornton
VanDyke’s Baird v. Bonta opinion references Bruen’s assertion of the right to bear arms outside the home. It is based, however, on a misreading of what Thomas and the court actually said in that case.
The Bruen decision allows for options. Nothing in the decision keeps a state from banning open carry if, as in California, it allows for the concealed carrying of weapons. This was exactly Smith’s point in his Baird v. Bonta dissent: “A state may not prohibit the public carriage of firearms by eliminating both open and concealed carry, but a state can lawfully eliminate one manner of carry to protect and ensure the safety of its citizens, as long as they are able to carry in another manner.”
Also, as Smith explained in his dissent, there is a long tradition and history of regulating the open carrying of firearms to protect public safety. Even as the Supreme Court has redefined the meaning of the Second Amendment to protect individual gun rights, it has been clear that the government can regulate firearms to save lives. In United States v. Rahimi, in 2024, the court, 8-1, upheld a federal law that prohibits those under a restraining order in a domestic violence case from having guns.
The 9th Circuit’s decision striking down the California law restricting the open carrying of guns misreads Supreme Court precedent, misinterprets history to support its desired result and ignores the strong public safety interest in such regulation.
California Attorney General Rob Bonta has indicated that he will ask the full membership of the 9th Circuit to vacate the VanDyke ruling and reconsider the case. The issue may ultimately go to the Supreme Court. In one or another venue, VanDyke’s extreme position will, one hopes, be overturned. California’s open-carry law should be upheld. The state should be allowed to protect people from gun violence.
