One of the many cases challenging plainly unconstitutional gun control laws that’s been winding its way through the courts is Baird v. Bonta. That’s a case challenging California’s ban on open carry. As a ruling by a Ninth Circuit panel today notes . . .
Appellants Mark Baird and Richard Gallardo wish to openly carry handguns in California for self-protection, but California’s current licensing regime 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 opencarry license. … 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 ever been issued.
In other words, a few Californians may be able to apply for an open carry permit, but no one will issue one. The plaintiffs argued for a preliminary injunction blocking the ban while the case was argued, but a District Court denied that request on an interest balancing basis.
As the Ninth Circuit noted . . .
…the district court erroneously determined that because the public interest and balance of harms disfavored the issuance of a preliminary injunction, it was not necessary to assess Appellants’ likelihood of success on the merits.
That determination, however, was made a long time ago. Much has changed since then, not least of which is the Supreme Court’s Bruen decision. Interest balancing is no longer a valid justification for denying Second Amendment rights and the Ninth Circuit panel has ordered the lower court to reconsider the plaintiffs’ motion for an injunction.
The district court’s analysis of the first Winter factor must include consideration of whether the conduct that California’s general open-carry ban regulates is covered by the text of the Second Amendment. If it is, California bears the burden to identify a well-established and representative historical analogue to its open-carry ban that was in force when the Second or Fourteenth Amendment was ratified.
Good luck with that. The panel also ordered the District Court to get a move on.
Noting that it has been more than four years since Appellants first moved for a preliminary injunction and more than fourteen months since Bruen was decided, the panel directed the district court to complete its preliminary injunction review expeditiously.
Finally . . .
If the district court determines that Appellants showed that they are likely to succeed on the merits of their claim, the district court must account for the impact that determination has on the remaining Winter factors when it analyzes each of them. This means recognizing that, in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, and strongly tips the balance of equities and public interest in favor of granting a preliminary injunction
In short, the three-judge panel reversed the District Court’s decision denying the injunction and told them to reconsider it, noting that “by declining to assess Appellants’ likelihood of success on the merits of their Second Amendment claim, the district court abused its discretion by failing to apply the proper preliminary injunction standard for a case raising a constitutional challenge.”
Read the full ruling here.
