The Second Amendment after Bruen

Overview

The Ninth Circuit just struck down California's ban on openly carrying guns in urban areas, ruling that a law affecting 95% of the state violates the Second Amendment. Judge Lawrence VanDyke wrote that open carry was widely protected at America's founding—exactly the kind of historical analysis the Supreme Court demanded in its 2022 Bruen decision. The ruling creates a circuit split with the Second Circuit, which said states can ban one form of carry as long as they allow the other.

Bruen replaced decades of balancing tests with a single question: Does history support this gun regulation? Lower courts have struggled to apply it. Since 2022, judges have issued over 450 Bruen-related decisions, upholding most gun laws but creating confusion about how far back in history to look and how similar historical laws need to be. California will likely appeal, and the Supreme Court—already hearing two major gun cases this term—may have to clarify whether states can choose between open and concealed carry or must allow both.

Play on this story Voices Debate Who Said What? Predict

Key Indicators

95%

California residents affected by struck-down ban

The open-carry prohibition applied to all counties over 200,000 people

450+

Bruen-related court decisions since 2022

Double the Second Amendment cases filed in Heller's first year

88%

Gun laws upheld post-Bruen

Most regulations survive the history test despite initial fears

2-1

Ninth Circuit panel vote

Split decision striking down California's urban open-carry ban

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People Involved

Lawrence VanDyke

Author of majority opinion in Baird v. Bonta

N. Randy Smith

Dissented in Baird v. Bonta

Rob Bonta

Filed en banc petition January 16; mandate stayed pending decision

Mark Baird

Prevailed in challenging California's open-carry ban

Organizations Involved

Mountain States Legal Foundation

Conservative legal advocacy nonprofit

Represented Mark Baird in successful challenge

Colorado-based conservative nonprofit that litigates gun rights, property rights, and environmental regulation cases.

Supreme Court of the United States

Federal court

Set Bruen precedent; hearing two more gun cases in 2026

The nation's highest court, which fundamentally reshaped Second Amendment law in 2022.

U.S. Court of Appeals for the Ninth Circuit

Federal appellate court

Issued split decision on California open-carry ban

The nation's largest circuit court, covering California and eight other states.

Timeline

Supreme Court Hears Hemani
Supreme Court

Oral arguments on whether drug users can possess firearms. Challenges federal prohibition for unlawful substance users.
March 2nd, 2026
Supreme Court Hears Wolford
Supreme Court

Oral arguments on Hawaii's sensitive places law. Tests how broadly states can ban guns from public locations.
January 20th, 2026
Bonta Issues Statement on Open Carry
Public Statement

Attorney General called open carry dangerous, saying it 'terrorizes children' and 'instills fear throughout our communities' in statement supporting en banc petition.
January 17th, 2026
California Files En Banc Petition
Legal

Attorney General Bonta petitioned full Ninth Circuit to vacate panel decision and grant en banc rehearing. Mandate stayed pending decision.
January 16th, 2026
DOJ Backs Gun Owners in Ammunition Case
Legal

Justice Department's Civil Rights Division filed en banc brief supporting gun owners challenging California's ammunition background check system in Rhode v. Bonta.
January 5th, 2026
Ninth Circuit Strikes Down Urban Open-Carry Ban
Court Decision

VanDyke wrote majority opinion finding California's ban on open carry in populated counties unconstitutional. Creates circuit split.
January 2nd, 2026
Supreme Court Refines Bruen in Rahimi
Supreme Court

Court clarified historical test, allowing analogical reasoning rather than exact matches. Upheld domestic violence gun ban.
June 2024
District Court Dismisses Baird Case
Legal

Lower court rejected Baird's challenge. He appealed to Ninth Circuit.
2023
Supreme Court Decides Bruen
Supreme Court

6-3 ruling struck down New York's concealed-carry law. Established historical tradition test for gun regulations.
June 23rd, 2022
Baird Files Lawsuit
Legal

Mark Baird sued California, challenging open-carry restrictions. Mountain States Legal Foundation represented him.
2019
California Bans Unloaded Open Carry
Legislation

Governor Jerry Brown signed AB 144, prohibiting open carry of unloaded handguns statewide. Took effect January 1, 2012.
October 13th, 2011
Heller Decision
Supreme Court

Supreme Court ruled Second Amendment protects individual gun rights. Opened modern era of constitutional challenges.
June 26th, 2008
Reagan Signs Mulford Act
Legislation

California banned loaded open carry after Black Panthers armed patrol. Governor Ronald Reagan backed the restriction.
July 28th, 1967

Scenarios

Predict which scenario wins. Contrarian picks score more — points lock in when the scenario resolves.

Predictions leaderboard

Ninth Circuit En Banc Reversal, Ban Reinstated

California requests en banc rehearing before the full Ninth Circuit. With 16 of 29 active judges appointed by Democrats, the court votes to reverse the panel decision—just as it did with California's large-capacity magazine ban. The full court adopts Judge Smith's dissent: states can eliminate one carry method as long as the other remains available. Since California now issues concealed-carry permits post-Bruen, the open-carry ban survives. Gun rights groups petition the Supreme Court, but the Court denies review, leaving the circuit split unresolved.

Discussed by: Legal analysts familiar with Ninth Circuit gun litigation patterns

Consensus —

Supreme Court Takes Case, Rules States Must Allow One Method

The Ninth Circuit declines en banc review, and California petitions the Supreme Court to resolve the circuit split. The Court grants cert and rules 6-3 that states can ban either open or concealed carry—but not both. The decision sides with the Second Circuit's approach and Judge Smith's dissent. California's ban stands because the state issues concealed-carry permits. But states must make one carry method reasonably available, preventing total prohibitions. The ruling gives states flexibility while preserving public-carry rights.

Discussed by: Bloomberg Law analysis of Supreme Court's Second Amendment docket

Consensus —

Supreme Court Rules Both Methods Protected, Broad Gun Rights Victory

The Supreme Court takes the case and rules 5-4 or 6-3 that both open and concealed carry are independently protected by the Second Amendment. The Court holds that states cannot force citizens to choose one method over the other—historical evidence shows both were widely practiced at the founding. The decision strikes down not just California's open-carry ban but also New York's and other states' concealed-carry restrictions. States scramble to rewrite gun laws. Gun safety advocates warn of increased public carry and gun violence.

Discussed by: Gun rights organizations and Duke Center for Firearms Law

Consensus —

Case Settles or Becomes Moot Before Supreme Court Review

California changes its law to allow limited open carry in urban areas with permit requirements similar to concealed carry, making the case moot. Or the state offers Baird a settlement to prevent Supreme Court review of the circuit split. The fundamental question—whether states can ban one carry method while allowing the other—remains unresolved, continuing to divide circuits until another case forces the issue.

Discussed by: Historical precedent from previous gun cases

Consensus —

Historical Context

District of Columbia v. Heller (2008)

2008

What Happened

The Supreme Court ruled 5-4 that the Second Amendment protects an individual's right to possess firearms, striking down D.C.'s handgun ban. Justice Scalia's majority opinion anchored gun rights in self-defense but noted the right isn't unlimited. For 14 years, lower courts applied a two-step test: Does the Second Amendment cover this conduct? If yes, apply heightened scrutiny balancing government interests against individual rights.

Outcome

Short Term

D.C.'s handgun ban fell, but many state and local restrictions survived interest-balancing tests.

Long Term

Opened modern Second Amendment litigation but left regulations largely intact through balancing frameworks.

Why It's Relevant Today

Bruen explicitly rejected Heller-era balancing tests, replacing them with pure historical analysis and dramatically shifting the landscape.

The Mulford Act (1967)

1967

What Happened

After the Black Panthers conducted armed patrols in Oakland, California banned loaded open carry. Republican Don Mulford authored the bill. Governor Ronald Reagan—who supported gun rights generally—signed it, saying he saw 'no reason why on the street today a citizen should be carrying loaded weapons.' The NRA backed the restriction. Thirty armed Black Panthers had occupied the state Capitol in May 1967, frightening lawmakers into swift action.

Outcome

Short Term

California prohibited loaded open carry statewide, disarming the Black Panthers' copwatching patrols.

Long Term

Became the foundation for California's incremental restrictions, culminating in the 2011-2012 total open-carry ban.

Why It's Relevant Today

The Ninth Circuit's ruling directly challenges laws descending from the Mulford Act, raising questions about whether racial motivations undermine historical justifications.

Peruta v. San Diego County (2016-2017)

2016-2017

What Happened

A Ninth Circuit panel initially ruled California must allow either open or concealed carry. But the full court reversed en banc, finding no Second Amendment right to concealed carry since open carry remained theoretically available. Gun rights advocates appealed to the Supreme Court, which denied review. The en banc decision allowed California to maintain its dual ban by threading a logical needle: concealed carry isn't protected because open carry exists; open carry can be banned because it's dangerous.