(CN) — Two California men fighting California’s longstanding open-carry gun laws failed in their bid to have the rules preliminarily overturned — though a federal judge did say Monday that they made a good case his Second Amendment rights might be violated.
The Golden State’s rules allow counties with fewer than 200,000 residents to issue open-carry permits in the same way concealed-carry permits are issued. The law leaves the decision on who qualifies for the permits to local police chiefs and sheriffs.
Two men from rural Northern California counties say they’ve been denied the chance to even start the application process because they can’t show “good cause” for why they should be granted open-carry permits. They say that condition amounts to a de facto ban.
Mark Baird of Siskiyou County and Richard Gallardo of Shasta County sued California Attorney General Xavier Becerra in April 2019, arguing the state’s rules on open-carry violate the Second, Fourth and Fourteenth amendments.
According to the men, the population requirement is unfair, and the law gives local law enforcement too much discretion. They also argue that previous Supreme Court cases define the “core component” of the Second Amendment right as “self-defense” and the right to openly carry a firearm in self-defense is protected.
And because the Second Amendment does not protect concealed-carry, the plaintiffs argue open-carry must be protected and any law that burdens that right must be strictly scrutinized by courts.
On Monday, U.S. District Judge Kimberly Mueller found the men may have a point — but the point wasn’t enough to warrant a preliminary injunction of California’s open-carry permit scheme.
Mueller, a Barack Obama appointee, noted a Ninth Circuit panel ruled in 2018’s Young v. Hawaii that the Second Amendment “encompasses a right to carry a firearm openly in public for self-defense” and the right is “core” to the Second Amendment. However, since Young will now be heard by an en banc Ninth Circuit, Mueller is not currently bound by the original ruling.
“Thus, no controlling authority has held that the Second Amendment right protects an individual’s right to open carry. However, where ‘difficult legal questions require more deliberate investigation,’ the court may grant a preliminary injunction to preserve the status quo so long as plaintiff demonstrates ‘that serious questions going to the merits were raised,’ ‘the balance of the hardships tips sharply in the plaintiff’s favor,’ and plaintiff meets the other requirements,” Mueller wrote.
Mueller agreed the men raise “serious questions” regarding their Second Amendment claims that require further consideration. But since then Ninth Circuit is likely to bring more clarity to the scope of the Second Amendment in the near future — as Mueller noted, Second Amendment law is evolving — the men have “a chance if not a ‘fair chance of success on the merits.’”
Even so, Mueller said the harm the men may face from not being able to carry their guns openly is neither imminent nor life-threatening since they’ve not had the ability to do so since California’s open-carry law was repealed in 1967. And unlike other gun laws on the state’s books including the recently overturned ban of high-capacity magazines, the men don’t face criminal sanctions “for failure to act” since there’s nothing for them to get rid of in this case.
Because the balance of hardships does not tip sharply in the men’s favor given their “available options for self-defense” and the potential harm to the state and public interest is significant, Mueller rejected their request for a preliminary injunction of the open-carry laws.
She did so without prejudice should the en banc Ninth Circuit rule in a way that bolsters the men’s claims.
But Mueller also dismissed the bulk of their claims, finding only their procedural due process claim warrants a deeper look.
“Given that whether plaintiffs have a constitutionally protected right to open carry is still an open question, the court assumes without deciding that plaintiffs have adequately alleged a deprivation of a constitutionally protected liberty or property interest for the purpose of a procedural due process claim, and finds plaintiffs have adequately pled ‘a denial of adequate procedural protections,’” Mueller wrote.
She gave the men 21 days to file an amended complaint.
The plaintiff’s attorney said via email they are considering an appeal. Baird’s and Gallardo’s attorney, Amy Bellantoni, said that the Ninth Circuit took up the issue of whether a state’s open-carry permits could be invalid if they burdened the right to bear arms outside the home.
“I am hopeful that the Ninth Circuit’s en banc consideration of Young will yield an intellectually honest decision,” said Bellantoni in an email. “My clients’ Second and Fourteenth Amendment claims remain, and we will be moving forward accordingly.”