9th Circuit Open Carry en banc Oral Argument Recap
On Wednesday, June 3, 2026, a limited, eleven-judge en banc panel of the 9th Circuit Court of Appeals heard oral argument in Mark Baird v. Rob Bonta.
The Lawsuit
Mr. Baird’s lawsuit seeks to enjoin the enforcement of California Penal Code (“PC”) sections 25850 and 26350.
The former makes it a crime to carry a loaded firearm outside of one’s home in incorporated cities, the incorporated county and City of San Francisco, as well as unincorporated county territory where the discharge of a firearm is prohibited.
The latter makes it a crime to openly carry an unloaded handgun outside of one’s home in the same places. There is a California law that exempts carrying a handgun on one’s private property, but that exemption applies only to places where PC 25850 does not apply. That means that unless one lives in unincorporated county territory where it is legal to step outside the door to one’s home and discharge a firearm, the exemption does not apply.
The lone plaintiff, Mark Baird, limited the scope of his lawsuit to handguns. He does not challenge any other law, which means if he were to prevail, it would still be illegal to possess, let alone carry, a handgun within 1,000 feet of the grounds of every K-12 public and private school without a license.
As for licensing, California Penal Code sections 26150 et seq “regulate” the carrying of concealable firearms, which are firearms with a barrel length of less than 16 inches. Given that short-barreled rifles and shotguns are illegal in California, this means that one can only obtain a CCW (“Carry Concealable Weapon”) license for handguns.
The licensing statutes provide for licenses to openly carry a handgun, but the licenses are limited to the county in which they were issued, and are only available to residents of the county (the statute provides for 90-day licenses for persons substantially employed in the county).
There is no evidence in the record that the State of California has ever issued a license to openly carry a handgun pursuant to PC 26150 et seq.
The Oral Argument
Given the judges assigned to the en banc panel, nothing surprising took place. The oral argument was rather subdued. Typically, with sharply divided panels, the judges can be quite heated with their questioning. But there was no need with this panel. Only two judges on the eleven-judge panel seemed sympathetic to Mr. Baird: Judges R. Nelson and Lee.
And true to form, Mr. Baird’s attorney was hostile to Judge Nelson.
Given that Mr. Baird is going to lose, and given that his petition for a writ of certiorari will be denied, the only questions are how badly he is going to lose and how badly his loss will damage my California Open Carry lawsuit. My lawsuit, Charles Nichols v. Gavin Newsom et al, is not limited to handguns. My lawsuit seeks to openly carry long guns as well as handguns within 1,000 feet of the grounds of every K-12 public and private school, but not on the grounds of any school.
Mr. Baird’s lawsuit is a purely facial lawsuit. If the majority opinion limits its decision to purely facial lawsuits, then my lawsuit will continue in the district court because I also challenge the laws as applied. If the en banc panel holds that there is no right to Open Carry any firearm outside the doors to one’s home, then I lose in the district court and will once again be headed to the 9th Circuit Court of Appeals (my 4th time).
Mr. Baird’s failure to challenge the laws as applied, his failure to challenge the licensing laws, and his failure to challenge the California bans on openly carrying long guns are self-inflicted. I had repeatedly urged him to do so. He promised he would, but when he filed his final, operative complaint, he had limited his lawsuit to the two laws mentioned at the top and presented a purely facial challenge.
A facial challenge is the hardest to win, especially when the challenge is brought under the Second Amendment, because the Supreme Court held in U.S. v. Rahimi (2024) that if there is but a single application of the challenged law that is constitutional, then the facial challenge fails.
Given the plain text of the two challenged laws, they are facially unconstitutional. But the panel will say that there are applications of the two laws that are constitutional. What they won’t, and can’t, do is to give a single application of the laws that is constitutional.
The two challenges laws prohibit only constitutionally protected conduct, and only by persons who are protected by the Second Amendment, and only in places protected by the Second Amendment.
I had explained that in the Amicus brief I filed with the three-judge panel, but Mr. Baird’s attorney opposed my Amicus brief, and so my motion to file the Amicus brief was denied.
Mr. Baird would have been better off representing himself. It would have saved the more than $500,000 his lawyer has been paid thus far. According to Mr. Baird, it cost $30,000 for his attorney to argue before the three-judge panel. Presumably, it cost as much this time as well. Or so Mr. Baird had indicated.
There is no telling how long it will take for the en banc panel to publish a decision. Typically, it can take a year or more (much more in Second Amendment cases), but given the lopsided panel, we could have a decision by the end of this year.
To save you the bother of YouTube advertisements, I have embedded the en banc oral argument below.
You can track both Mr. Baird’s lawsuit and my lawsuit on my website, at the following links.
Charles Nichols v. Gavin Newsom et al.