Preliminary Injunction of California Open Carry Law

In 2022, the U.S. Supreme Court ruled in New York State Rifle Pistol Association versus Bruen (2022) 142 S. Ct. 2111, at 2222, that the Second Amendment includes an individual’s right to carry a handgun for self defense outside the home, but that a state may regulate who is excluded from this right and the manner of carry. A state’s regulation of the manner of carrying is proper only if it demonstrates that the regulation is identical or closely analogous to a firearm regulation in effect when the Second (1791) or Fourteenth Amendment (1868) was ratified. Id. at 2029-2030, 2133.

This ruling has caused many challenges to California’s firearm laws.

For example, following Bruen, Mark Baird and Richard Gallardo, both California residents, challenged California’s open carry licensing scheme. They sued (in civil court) the California Attorney General, Rob Bonta, in federal court to preliminarily enjoin enforcement of California Penal Code §§ 25850 and 26350, which criminalize unlicensed open carry of a handgun.

They claimed that California’s open carry licensing scheme effectively establishes a statewide ban on open carry by ordinary law-abiding Californians. With narrow exceptions, those Californians who reside in counties with more than 200,000 residents – roughly 95% of state residents – may not apply for an open carry license. California Penal Code §§ 25850, 26150(b)(2), 26155(b)(2), 27350; see also §§ 26361-92 (exceptions). A subset of the remaining 5% of Californians not subject to other categorical bars may apply for an open-carry license from the local county sheriff or police chief, but California has provided no evidence that any such license has even been issued.

Mr. Baird and Mr. Gallardo resided in counties with fewer than 200,000 inhabitants and were unable to obtain an open-carry license, so they cannot legally carry a handgun. They argued this violates their rights to self-defense covered by the Second Amendment.

The U.S. District Court denied the request for a preliminary injunction and so Mr. Baird and Mr. Gallardo appealed to the United States Court of Appeals for the Ninth Circuit in Pasadena.

The Ninth Circuit reversed the District Court, finding it applied an incorrect legal standard, and remanded the case back to the District Court with instructions to perform a proper preliminary injunction analysis. The Ninth Circuit found that the District Court failed to analyze whether Mr. Baird and Mr. Gallardo were likely to succeed on the merits of their claim or likely to suffer irreparable injury.

The Ninth Circuit explained that the appropriate legal standard to analyze a preliminary injunction motion requires a district court to determine whether a movant has established that (1) he is likely to succeed on the merits of his claim; (2) he is likely to suffer irreparable harm absent the preliminary injunction; (3) the balance of equites tips in his favor; and (4) a preliminary injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc. (2008) 555 U.S. 7, 20; accord Chamber of Com. of the U.S. v. Bonta (9th Cir., 2023) 62 F. 4th 473, 481.

The Ninth Circuit commented that as a general matter, district courts “must consider all four Winter factors.” Vivid Ent., LLC v. Fielding (9th Cir. 2014) 774 F. 3d 566, 577.

The court further stated that the first factor, likelihood of success on the merits, is a threshold inquiry and the most important. If a plaintiff shows he is likely to succeed on the merits that usually demonstrates he is suffering irreparable harm no matter how brief the violation. See Planned Parenthood Ariz., Inc. v. Humble (9th Cir. 2014) 753 F. 3d 905, 911.

While the Ninth Circuit did not state that Mr. Baird and Mr. Gallardo were likely to succeed on the merits of their claim, they did suggest that the Second Amendment right to bear arms is “not a second-class right subject to an entirely different body of rules than other Bill of Rights guarantees.” McDonald v. City of Chicago (2010) 561 U.S. 742, 780.

The Ninth Circuit then suggested that if California seeks to enforce its restrictions on open carry (some might say a ban), it must identify a “well-established and representative historical analogue” to its open-carry laws that was in force when the Second or Fourteenth Amendment was ratified, noting that any general firearm regulation California may “unearth” cannot simply be to combat general gun violence. Instead, the analogue from 1791 or 1868 laws must be “distinctly similar” to California’s needs today.

In short, the Ninth Circuit strongly seemed to suggest that Bruen very well may invalidate many of California’s firearm laws, which we think would in turn likely lead to legislative action to bring new laws to replace such laws.