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9th Circuit ruling threatens California ban on open carry of handguns without a license


California laws prohibiting people from openly carrying handguns in public without a license are under even greater legal threat after a federal appeals court ruling on Thursday.

A three-judge conservative panel of the U.S. 9th Circuit Court of Appeals ruled that a lower court “abused its discretion” by refusing to halt state law enforcement when their constitutionality was challenged.

The higher court’s decision did not find that the execution should be halted, instead sending the case back to the lower district court for further analysis. However, he provided “instructions” on how that analysis should be conducted, in terms that will make it harder for the state to prove its laws are constitutional, legal experts said.

“The court seems to think California can’t meet that burden,” said Jake Charles, an associate professor at Pepperdine Caruso Law School and an expert in firearms law.

Amy L. Bellantoni, attorney for Mark Baird and Richard Gallardo, the plaintiffs who filed the lawsuit challenging state laws, said she was “very pleased” with the ruling and “looks forward to a speedy reassessment.” by the district court.

Atty from California. General Rob Bonta’s office, which defends state laws in court, did not immediately respond to a request for comment Thursday.

The Baird v. Bonta case is one of several challenges to California’s gun laws that received a major boost after the US Supreme Court ruled last year that gun restrictions fire violated the 2nd Amendment if not deeply rooted in the country’s history or the like. to a historical rule.

The “Bruen test”, as it is now called after the New York State Rifle & Pistol Assn case. against Bruen, radically altered the legal process by which gun regulations are scrutinized when individuals challenge them as unconstitutional. Rather than considering the public good of these gun laws, courts are now asking whether laws intended to govern modern firearms like assault rifles are sufficiently similar to centuries-old gun laws. to be considered historic and therefore constitutional.

California generally prohibits people living in counties with populations over 200,000 from openly carrying handguns, with some exceptions. People who live in jurisdictions with fewer than 200,000 residents, such as Baird and Gallardo, can apply for an open-carrying license from local law enforcement, but those licenses are also difficult to obtain.

Baird and Gallardo first filed suit against these laws more than four years ago, alleging they violated the 2nd Amendment right to bear arms in self-defense.

In his ruling Thursday, Trump-appointed Circuit Judge Lawrence VanDyke wrote that the lower court must consider the likelihood that Baird and Gallegos will ultimately prevail in their assertion that the bans are unconstitutional.

However, the lower court did not, VanDyke wrote. Instead, he said, the state simply rejected the injunction on the grounds that it could “endanger public safety” by temporarily depriving California of its “primary means of limiting public wear.” handguns to “ordinary law-abiding citizens”.

VanDyke wrote that if the lower court determines that California licensing laws impact rights covered by the 2nd Amendment, then the lower court must apply the Bruen test.

Legal experts said that if VanDyke had stopped there, the decision would have been less important than the procedure. However, they said, VanDyke went further by offering a standard for how California could meet Bruen’s demands that was even stricter than what the Supreme Court had set out.

Along with Bruen, the Supreme Court declared that gun laws are only legitimate if they exist or are sufficiently similar in some way to the laws that existed in 1791, when the 2nd amendment was passed, or in 1868, when the 14th Amendment was passed. This last amendment prohibits states from depriving people of their property without due legal process.

The Bruen decision was vague enough that judges have since interpreted it in different ways. Many are closely watching a case the Supreme Court will hear soon involving laws restricting gun ownership by domestic abusers, to see if the country’s High Court will provide further direction on how to enforce Bruen.

Conservative justices have generally applied Bruen more strictly than liberal justices, and VanDyke’s decision on Thursday is no exception.

VanDyke wrote that because states were already grappling with gun violence in 1791 and 1868, California needed to show historic law “distinctly similar” to its current open carry laws for them to be constitutional today – and not just “any general law”. gun regulations that California might discover” from the past.

He said the historic law must be similar in “how” and “why” it “restricted the right of individuals to bear firearms” in order to be relevant in the present case.

Citing Bruen’s other tough applications to appellate courts elsewhere in the country, VanDyke wrote that “in short,” California “must identify a historical analog that restricts the right to openly and peacefully carry handguns for defend themselves to a comparable degree, with a comparable degree. seriousness, and with general application comparable to the open carry ban in California.

VanDyke was joined in his decision by Circuit Judges N. Randy Smith, appointed by President George W. Bush, and Kenneth K. Lee, appointed by Trump.

Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law, said the decision clearly shows how things have changed in gun laws in the post-Bruen era.

“It’s getting harder and harder for lawmakers to defend gun safety laws,” he said.

Bellantoni, Baird and Gallardo’s attorney, said California’s open carry bans have no basis in history and should be overturned.

“California’s open carry regulations are contrary to the plain text of the 2nd Amendment and a preliminary injunction should follow,” she said.

VanDyke urged the lower court to “quickly” reconsider and rule on the injunction request given that the underlying litigation already dates back more than four years and the Bruen decision was issued more than a year ago. one year, but he did not set a specific deadline.

Thursday’s ruling could be appealed, as could any further lower court rulings.