California's Open-Carry Ban Shot Down By Federal Appeals Court

2026 started with a bang for proponents of the human right of armed self-defense, as a US appeals court on Friday ruled that California's de facto statewide ban on openly carrying firearms violates the US Constitution. However, there's reason to think it will flip the other way as the litigation proceeds to the next phase. For now, though, leftists are recoiling. California governor and likely 2028 presidential candidate Gavin Newsom said "Republican activists on the Ninth Circuit" want to "return to the days of the Wild West." 

As with other recent victories for gun rights, this one springs from the test prescribed by the impactful 2022 US Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen. In that case, the court said firearm restrictions are only permissible if they are consistent with the country's "historical tradition of firearm regulation." The three-judge panel ruled against the open-carry ban in a 2-1 ruling, overturning a lower-court judge's interpretation. As Judge Lawrence VanDyke wrote in the majority opinion: 

“The historical record makes unmistakably plain that open carry is part of this nation’s history and tradition. It was clearly protected at the time of the founding and at the time of the adoption of the 14th Amendment. There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation... for the first 162 years of its history open carry was a largely unremarkable part of daily life in California.”

California law forbids open carry in any county with a population of more than 200,000 people, a threshold that covers 95% of the population. In practice, however, it's a 100% ban. Technically, Californians in sparsely-populated counties are allowed to apply for a license to carry openly in their home county, but, as noted in the 98-page ruling, "California admits that it has no record of even one open-carry license being issued, and one potential reason is that California has misled its citizens about how to apply for an open-carry license." 

The opinion also points to the 19th century, which saw plenty of concealed carry restrictions but few on open carry (and those that did exist were usually struck down) pic.twitter.com/0yvJqiTU6B

— Kostas Moros (@MorosKostas) January 2, 2026

The sole judge in the minority, George W. Bush-appointed N. Randy Smith, said the ban passed constitutional muster because California lets residents carry concealed firearms, if they can get a permit. “A state may not prohibit the public carriage of firearms by eliminating both open and concealed carry, but a state can lawfully eliminate one manner of carry to protect and ensure the safety of its citizens, as long as they are able to carry in another manner,” he wrote in his dissent. 

The majority opinion skewered California's strained attempt to find some tangential way to characterize the open-carry ban as consistent with the "historical tradition of firearm regulation," and thus pass the Bruen test:   

"Open carry remains open carry, just as it was at the Founding. And concealed carry remains concealed carry, just as it was in 1791. To get around that reality, the analogical argument that California would have us adopt really boils down to the idea that today a state can ban all open carry because some other states regulated some other things at the Founding in some other ways. That is too sloppy a fit. Bruen requires a closer relationship between “how” and “why” a historical regulation burdened the right to bear arms and “how” and “why” a modern analogue burdens that right."  

The victory will likely be short-lived, according to Kostas Moros, Director of Legal Research and Education for the Second Amendment Foundation. "With near certainty, it will be en banc'd and reversed," Moros wrote in a thread on X in which he analyzed the ruling. Pointing to a previous, dubious ruling, he said, it's "hard to see how the Ninth Circuit would ever let this ruling stand."