SACRAMENTO, Calif. (CN) — A federal judge is considering motions for summary judgment after hearing Friday from both sides in a case over California’s open-carry firearms law.
Mark Baird and Richard Gallardo sued the state attorney general in 2019, claiming that despite living in a county without an open-carry restriction, they still couldn’t obtain licenses.
Their attorney Amy Bellantoni argued Friday that open carry, concealed or otherwise, is a natural right. The state of California can’t require someone to obtain a license in order to openly carry a firearm.
Under questioning from Chief U.S. District Judge Kimberly Mueller, Bellantoni said her clients’ suit challenges two statutes that she argued criminalize open carry. She referred to New York Rifle and Pistol Association v. Bruen, a U.S. Supreme Court decision that changed how states determine who may carry a concealed weapon in public.
Under Bruen, a “historical analogue” must exist — a similar law restricting firearms at the time the Second Amendment was ratified — for a present-day firearms restriction to pass muster.
“You have to look back to the founding era,” Bellantoni said.
Deputy state Attorney General Lara Haddad said there were broad restrictions on firearms in 1791, when the Bill of Rights was ratified. In fact, there’s a tradition of restricting open carry and licensing was one method.
“That was the entire point of codifying the Second Amendment,” Bellantoni responded, saying open carry already existed at the time and the amendment made it law. The country had just fought a war against England, which sought to take away colonists’ guns.
“What sense does it make that they would then give that authority back to another government?” Bellantoni asked.
Referring to U.S. Supreme Court case District of Columbia v. Heller, another major firearms decision, Mueller noted the right to bear arms isn’t unlimited. Prohibitions in schools and government buildings, for example, are allowed. The judge then questioned if those restrictions can be imposed, why can't a state have a licensing system for firearms.
For Bellantoni, the issue comes down to Bruen and the need for a historical analogue, or similar law at the time of the nation’s founding. Licensing penalizes people by prohibiting the open carry of firearms until the individual obtains a license, essentially removing that prohibition.
“Everyone starts with the natural right,” Bellantoni said.
Haddad said historical analogues don’t need to be “a dead ringer or historical twin” to qualify. She pointed to an 1837 Georgia law that restricted carrying any weapon.
Bellantoni countered that the Georgia Supreme Court later overturned that law.
“You can’t criminalize a natural right,” she added.
Friday’s hearing was a separate issue from the Ninth Circuit Court of Appeals’ September decision reversing Mueller’s denial of a preliminary injunction requested by Bellantoni’s clients. They had asked for the injunction to stop enforcement of the state law criminalizing unlicensed open carry.
Mueller, a Barack Obama appointee, denied the injunction in 2020, leading Baird and Gallardo to appeal. In September, a three-judge panel found that Mueller used an incorrect legal standard in her ruling. Remanding, the panel wrote Mueller should hold her review quickly.
In mid-October, Bellantoni wrote to the appeals court over 30 days after its decision about the lack of action from Mueller. The attorney referenced the Friday hearing, saying she was concerned the judge would delay a decision on the injunction until after the summary judgment motions were submitted and possibly decided.
Court records showed no response from the appeals court to Bellantoni’s letter as of Friday.
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