On January 2, 2026, the Ninth Circuit held that California’s near-statewide prohibition on open carry — applicable in counties with populations over 200,000 and covering roughly 95% of Californians — violates the Second Amendment under the Supreme Court’s Bruen framework. The decision directs entry of judgment for the plaintiff on the urban open-carry ban, while not reaching the validity of California’s “shall-issue” open-carry licensing scheme in less populous counties due to waiver of the as-applied challenge.
Key Facts and Procedural Posture
California law recognizes two methods of public carry — concealed and open. But, as a practical matter, California bans open carry in counties with populations of 200,000 or more, while in less populous counties it authorizes a “shall-issue” open-carry licensing scheme administered by sheriffs and police chiefs. Under the “shall-issue” licensing scheme in rural counties, an applicant who satisfies certain statutory criteria may obtain an open-carry license, but any such license is valid only within the issuing county. By contrast, concealed-carry licensing is available statewide.
The plaintiff, a law-abiding citizen from Siskiyou County, challenged both the urban open-carry ban and the rural licensing scheme under the Second, Fourth, and Fourteenth Amendments. The district court granted summary judgment to the State on all issues, concluding the ban was consistent with historical tradition.
Holding and Majority Reasoning
The Ninth Circuit held that the open carry of firearms is clearly protected by the Second Amendment. According to the panel, the protection of open carry is supported by Founding-era and Reconstruction-era history distinguishing the permissibility of open carry from occasional bans on concealed carry. Applying Bruen, the panel concluded this is a “straightforward” case (using Bruen’s terminology): California’s categorical ban on open carry in populous counties lacks any “distinctly similar” historical analogue addressing a comparable societal problem, thus defeating the State’s defense under the default historical inquiry without resort to a “nuanced” analogical approach.
At step one of the Bruen analysis, the panel accepted that openly carrying a handgun in public by a law-abiding citizen is protected by the text of “the right of the people to keep and bear Arms,” causing the burden to shift to the State to justify its regulation with a well-established historical tradition. The State’s proposed analogs — including affray (i.e., public disturbance) and selectively enforced nineteenth-century enactments — failed. The court reasoned that the proposed analogs differed in both the “how” (what conduct they burdened and to what extent) and the “why” (their justification and scope). The court also rejected California’s “heavy reliance on racist or explicitly xenophobic laws” as historical analogs, concluding that such laws are part of the “history the Constitution left behind.” The panel emphasized that Bruen does not permit a state to ban one mode of carry simply because another is allowed; concealed and open carry are not fungible under the Nation’s historical tradition. And the majority reiterated that courts may not engage in means-end interest balancing of the State’s objectives in lieu of the historical test.
In regard to the remedy, the court found that the urban ban is not severable under California law, and warned against judicial policymaking. The opinion stressed that the Legislature — not the judiciary — must decide whether and how to craft any replacement scheme for populous counties. The court also affirmed summary judgment for the State on the facial challenge to the rural “shall-issue” licensing regime and held that the plaintiff waived any as-applied challenge to that regime by failing to contest the standing-based dismissal.
Judge Lee’s Concurrence
Judge Lee (joined by Judge VanDyke) joined the majority opinion and authored a separate concurrence, which highlighted evidence that California has “resorted to subterfuge” to frustrate open-carry licensing in rural counties. Judge Lee highlighted the State’s admission that it has no record of “even one open-carry license being issued,” and uses a 17-page “CCW” — i.e., concealed-carry form — that nowhere mentions “open carry.” The concurrence opined that “constitutional rights . . . should not hinge on a Where’s Waldo quiz,” and noted that “California routinely sues private companies for engaging in similar deceptive conduct.”
Concurrence/Dissent (Senior Judge N.R. Smith)
Senior Judge N.R. Smith concurred in part and dissented in part, arguing Bruen’s focus is “public carry” generally, not the manner of carry, and that a state may eliminate one mode (open or concealed) so long as it does not “ban public carry altogether.” He would have upheld California’s open-carry restrictions given the availability of concealed carry, and explained that his conclusion aligns with the Second Circuit’s decision in Frey v. City of New York, 157 F.4th 118 (2d Cir. 2025). Judge Smith further contended that the majority erred by invoking facial overbreadth principles in the Second Amendment context and by refusing to sever the population and geographic limitations to preserve an urban open-carry licensing pathway under California’s severability doctrine.
Implications for Second Amendment Jurisprudence
The decision deepens the post-Bruen debate on whether open and concealed carry are interchangeable for constitutional purposes, rejecting the proposition that allowing concealed carry enables an open-carry ban. This creates a direct tension with the Second Circuit’s Frey decision, which upheld New York’s open-carry ban because concealed carry remained available. With an established circuit split, this issue may be ripe for determination en banc or before the Supreme Court.
The opinion underscores the impact of the level of generalization used by the courts in selecting or rejecting historical analogs. Further, the opinion grapples with and resoundingly rejects the use of discriminatory historical laws to justify modern bans.
The severability discussion cautions lower courts against reconstructing firearms-licensing frameworks to salvage unconstitutional provisions, potentially affecting remedial approaches in future Second Amendment cases.
Implications for the Firearms Industry and Stakeholders
In California’s populous counties, the decision invalidates the statutory open-carry prohibition, which may precipitate rapid legislative or regulatory action to replace the unconstitutional ban. Until then, enforcement of the invalid provisions is foreclosed.
The concurrence’s critique of the misleading open-carry form may prompt administrative changes to application forms, agency guidance, and training for licensing authorities.
Businesses, event venues, and security providers in urban counties should anticipate compliance updates to workplace and premises policies concerning visible firearms, recognizing that other valid constraints (e.g., “sensitive places” rules not at issue here) may still apply.
Conclusion
The Ninth Circuit’s decision strikes down California’s urban open-carry prohibition. It reinforces Bruen’s text-and-history methodology, declining to find one firearms-carry modality fungible with another, and signaling that categorical bans lacking close historical analogs are unlikely to survive judicial scrutiny. Stakeholders should expect near-term administrative adjustments and potential legislative efforts in California, alongside continued appellate activity that could clarify whether open and concealed carry are constitutionally interchangeable.