This afternoon, a three-judge panel of the 9th Circuit Court of Appeals heard oral argument in the appeal of the final judgment of Mark Baird v. Rob Bonta, which seeks to enjoin the enforcement of California’s ban on openly carrying loaded and unloaded handguns in public for the purpose of self-defense. The Court of Appeals jurisdiction is limited to openly carrying loaded handguns, and is limited to the prohibition on openly carrying unloaded handguns. The panel consisted of Judges Lee, VanDyke, and N.R. Smith.
I've written several articles criticising Mark Baird's attorney for making a mess of the case, which Judge N.R. Smith hammered her on during the oral argument.
Fortunately, he also hammered the state's attorney.
Judge N.R. Smith got the state's attorney to concede that the relevant time range is 1791-1868. Having made the concession, Judge N.R. Smith said he had read all of the opinions in the relevant time frame, and nowhere could he find a case where Open Carry was banned in favor of concealed carry.
Surprisingly, it was Judge VanDyke who raised Peruta v. San Diego (en banc), and said that the holding that if the Second Amendment protects the right to bear arms in public, it is the right to Open Carry, was not abrogated by NYSRPA v. Bruen. Judge N.R. Smith was on the Peruta en banc panel, and based on what he said during the oral argument in Peruta, he was always a worry. During the preliminary injunction oral argument, Judge VanDyke was openly hostile toward Mr. Baird’s attorney and fawned over the state’s attorney.
Judge Lee, who had remained silent during the oral argument of the preliminary injunction, likewise took issue with the state's position.
Mr. Baird’s attorney did not help herself during the oral argument in making her case, which at least two members of the panel pointed out to her.
For one thing, she argued that there is a right to carry handguns, openly and concealed, without a license, even though she does not challenge California’s statewide prohibition on concealed carry with or without a permit.
The panel only has jurisdiction to decide whether or not California’s bans on openly carrying handguns violate the Second Amendment. So why argue for concealed carry, given that the Court doesn’t have jurisdiction to decide whether or not California’s ban on carrying handguns concealed, or the requirement for a concealed carry permit, is unconstitutional?
The greatest weakness in Mr. Baird’s case is that he did not raise an as-applied challenge in his operative complaint, and he did not raise an as-applied challenge in his opening brief. His attorney reluctantly asserts that there is an as-applied challenge in her oral argument, but she is bound by the argument and claims she made in her opening brief. Nowhere in her opening brief does she argue, or claim, that California’s Open Carry bans are unconstitutional as applied to her sole client, Mark Baird.
While it is true that the Supreme Court in District of Columbia v. Heller (2008), McDonald v. City of Chicago (2010), and NYSRPA v. Bruen (2022) facially invalidated the challenged laws, in US v. Rahimi (2022), SCOTUS held that a facial challenge fails if there are constitutional applications of the law.
It is easy to contrive a constitutional application of a law, even an application of a law that has never been applied, in order to defeat a facial challenge.
However, the 3rd, 8th, and even 9th Circuit Court of Appeals have facially invalidated laws under the Second Amendment where one could have contrived an application. Unfortunately, Mr. Baird’s attorney never cited any of these decisions, even though the Presiding Judge, Judge Lee, was a member of the three-judge panel that facially invalidated Hawaii’s permit to purchase a handgun and requirement that firearms be brought to a police station for inspection.
Although it was heartening to hear Judge Lee state that California’s 1967 loaded Open Carry ban was racially motivated, Mr. Baird’s attorney never made that claim, and did not attempt to raise that claim for the first time on appeal, either in her opening brief or during the oral argument.
It is settled law that even if a law is otherwise constitutional, if racial animus was a motivating factor in enacting the law, then the law violates the 14th Amendment, or at the very least, is subject to strict scrutiny. No modern judge today is going to say that racial animus survives strict scrutiny.
Mr. Baird’s attorney, by failing to make the claim and by failing to argue the claim she never made, had deprived the panel of the jurisdiction to enjoin the Open Carry bans on the basis of racial animus alone. The Baird v. Bonta panel lacks jurisdiction to enjoin the two challenged laws because one or both were enacted due to racial animus.
However, the panel can hold that racial animus is inconsistent with the right to bear arms under the Second Amendment. Given that the State of California cited many racially motivated laws in support of its position, those racially motivated laws are in the record on appeal and fair game for the panel.
The panel spent far too much time focusing on California’s handgun Open Carry licensing laws, but the blame for that largely rests on Mr. Baird’s attorney and Mark Baird. I had urged Mark Baird, since before he filed his lawsuit, to seek a license to openly carry a handgun from his County Sheriff and/or police chief if he lived in an incorporated city, and to challenge California’s Open Carry licensing laws.
If Mr. Baird had been granted a license to openly carry a handgun in his county, he would still have standing to challenge the prohibition on his openly carrying his handgun outside of his county, and he would have standing to challenge the Open Carry licensing law in and of itself.
But in his final, operative complaint, Mr. Baird dropped his challenge to California’s licensing laws.
I had also pleaded with Mr. Baird to include long guns in his challenge. The ban on carrying loaded firearms (PC 26850) applies to long guns as well as handguns, and although there is a mountain of 19th-century case law upholding bans on concealed carry, and the possession of concealeable firearms, regardless of whether or not they are carried openly or concealed, there is no case law, or even state laws, prohibiting the Open Carry of loaded or unloaded long guns.
Mark Baird told me he would. When he didn’t include long guns, I asked him why he had excluded them. He said it's like eating an elephant; you eat it one bite at a time. I replied, “Handguns are the elephant; long guns are not.”
Perhaps the most frustrating part of the oral argument is that Mr. Baird’s attorney, who is an attorney from New York, said that the New York law at issue in Bruen prohibited Open Carry. It did not, which was clear from the briefs filed in the case. Both petitioners in Bruen had restricted licenses to carry a handgun in public, which allowed for both concealed and Open Carry in narrow circumstances.
New York did not change its law to prohibit Open Carry with a handgun carry license until the year after NYSRPA v. Bruen was decided. Moreover, in 2022, when NYSRPA v. Bruen was decided, a person with a restricted license to carry a handgun in public could not be criminally punished for carrying their handgun, whether openly or concealed, in violation of the restrictions placed on the license.
Under New York state law, the most severe consequence would be revocation of the license, provided the handgun was not possessed in a location where a licensee with an unrestricted license would not be permitted to possess a handgun.
Under California state law, if one carries a loaded or unloaded firearm, openly or concealed, to commit a crime, then he cannot be punished for violating the laws that prohibit the carrying of the firearm because, since 1872, Califoria law prohibits multiple punishments for the same act (and same continuous act). Additionally, under California law, more specific laws take precedence over general laws. For example, if one were to openly (or concealed) carry a handgun into a state courthouse, that person would be in violation of the California law that prohibits the unauthorized carrying of a firearm in a courtroom, and therefore, that law is controlling.
But even if it were not, California law prevents a person from being punished for both carrying a loaded (or unloaded handgun, in the context of the Baird v. Bonta case), for openly carrying a loaded or unloaded handgun if the person carrying the firearm is carrying it in a place or for a purpuse that is otherwise in violation of California law.
However, the Baird v. Bonta panel is unaware of this because it was never briefed or argued.
In short, what is a constitutional application of California’s bans on openly carrying loaded and unloaded handguns? Whatever application the State of California could contrive is an application that the person could not be punished for. A law that punishes only constitutionally protected conduct is a law that is facially invalid.
New York did not, and as of late last year, still does not prohibit the Open Carry of loaded and unloaded long guns in public for the purpose of self-defense. No license is required to openly carry a loaded or unloaded long gun, except in the City of New York, which has a local license requirement.
Given that Mr. Baird’s attorney is the attorney in the Frey v. Bruen, handgun Open Carry lawsuit out of New York, she should have known this.
Telling the panel that New York's license to carry a handgun in 2022 did not permit open carry was factually incorrect and hurt her case. The same license to carry a handgun in public for the purpose of self-defense was the same license for carrying a handgun for hunting and target shooting. It was also the same license required by armored car drivers and corrections officers to openly carry handguns in public.
The State’s greatest weakness is that its primary position is that unlicensed Open Carry is not protected by the Second Amendment, even though there are no licenses; Mr. Baird (or anyone) could not obtain a license to openly carry a handgun statewide, pursuant to California Penal Code sections 26150 et seq.
Which brings us to the State’s secondary position that California is free to ban Open Carry if it allows concealed carry. Fortunately, Judge N.R. Smith, the weakest of the three judges on the panel for Open Carry, hammered the state’s attorney on that point.
I do not know what this panel will decide or how long it will take to publish its decision.
None of the parties asked the panel to overrule Pertua v. San Diego’s en banc panel opinion. Indeed, the State of California argued that its position is consistent with Peruta v. San Diego, to which Judges N.R. Smith and VanDyke were openly skeptical.
In upholding the State’s may-issue concealed carry licensing requirement, the en banc panel in Peruta v. San Diego said:
If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment.
It is hard to square what the en banc panel said in Peruta v. San Diego with the state’s position that it can ban Open Carry in favor of concealed carry.
Finally, District Court Judge Mueller, in her final judgment in favor of the State of California, stated that Open Carry, not concealed carry, was a Second Amendment right. She said that because modern handguns are “murder weapons,” the State of California can prohibit Open Carry today even though Open Carry was the right in 1791 and 1868.
If I had been arguing Mr. Baird’s case before the three-judge panel, I probably would have opened with that.