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Ninth Circuit revives challenge of California open-carry law

The three-judge panel ordered the lower court to take another look at enjoining California's de facto ban on open gun carriage — and to do so quickly.

(CN) — A Ninth Circuit panel on Thursday reversed a lower court’s ruling in a fight over California's open-carry gun laws, finding a federal judge used the wrong standard when denying a motion for preliminary injunction.

Mark Baird and Richard Gallardo want to openly carry handguns in the state. A ban with narrow exceptions on open carry in counties with over 200,000 residents bars some 95% of California residents from doing so. However, Baird and Gallardo live in counties without that restriction, but still couldn’t get an open-carry license.

In 2019 they sued the state attorney general, asking the lower court three times for a preliminary injunction to stop the enforcement of state law that criminalizes unlicensed open carry.

“They argue that this prohibits conduct covered by the Second Amendment, has no historical analogue, and therefore infringes their Second Amendment right to bear arms for self-defense,” U.S. Circuit Judge Lawrence VanDyke wrote in Thursday’s opinion.

U.S. District Court Chief Judge Kimberly Mueller, a Barack Obama appointee, denied the preliminary injunction in 2020. Baird and Gallardo appealed to the Ninth Circuit, arguing that the judge abused her discretion by failing to conduct a complete preliminary injunction analysis and used speculation or an impermissible analysis of public safety about the effects of issuing that injunction.

They asked the Ninth Circuit to reverse the denial of the injunction, which a three-judge panel granted Thursday.

The panel found Mueller used an incorrect legal standard in her decision — that because public interest and balance of harms tipped the scales against issuing the injunction, it wasn’t necessary to weigh Baird and Gallardo’s likelihood of success on the merits.

“This appeal presents the question whether, in a case in which a plaintiff alleges a constitutional violation, a district court can deny a motion for a preliminary injunction without analyzing the plaintiff’s likelihood of success on the merits,” VanDyke, a Donald Trump appointee, wrote. “The answer to that question is clear: a district court may not do so.”

The panel remanded with requirements to guide Mueller’s future ruling.

First, she must consider if the conduct California’s general open-carry ban regulates is covered by the Second Amendment. If it is, the state has the burden to show a well-established and historical comparison to an open-carry ban that was in place when the Second or 14th Amendments were ratified.

Second, as the appeal was filed years ago, Mueller should conduct her review quickly.

Third, if Mueller determines Baird and Gallardo are likely to succeed on the merits, she must also account for the impact of other factors. Those include whether they would likely suffer irreparable harm without the preliminary injunction; if the balance of equities tips in their favor; and if the injunction is in the public interest.

“My clients and I are very pleased with the 9th Circuit opinion today,” said attorney Amy L. Bellantoni, who represents Baird and Gallardo, in an email. “Simply put, there was no ban on the peaceable open carriage of firearms in the Founding Era — California itself did not criminalize open carry until passing the racially motivated Mulford Act of 1967. California’s open-carry regulations are repugnant to the plain text of the Second Amendment and a preliminary injunction should follow. We look forward to a swift reevaluation by the district court.”

U.S. Circuit Judges Kenneth K. Lee, also a Trump appointee, and N. Randy Smith, a George W. Bush appointee, rounded out the panel.

Categories / Appeals, Regional

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