A three-judge panel in January reversed a lower court that sided with the state, leading to Wednesday’s hearing before the en banc court.<\/p>\n
SEATTLE (CN) \u2014 An en banc panel of the Ninth Circuit appeared confused at times with arguments about California laws restricting the open carry of firearms.<\/p>\n
Attorney Amy Bellantoni, representing a Siskiyou County man challenging statutes she said criminalize open carry, asked the appeals court to prohibit the state from enforcing those laws. She argued the laws criminalized a natural right that existed before the formation of any government.<\/p>\n
\u201cThese statutes, by threat of criminal penalties, forbid the general public from possessing a loaded firearm,\u201d Bellantoni said.<\/p>\n
The questions came quickly.<\/p>\n
U.S. Circuit Judge Eric Miller, a Donald Trump appointee, said the landmark case on point \u2014 New York State Rifle & Pistol Association v. Bruen\u2014 said the law did allow certain prohibitions on open carry. Other judges questioned whether Bellantoni\u2019s client was using a facial challenge, meaning the laws were unconstitutional in all respects, or an as-applied challenge: the laws are constitutional, except when enforced in a specific way.<\/p>\n
Bellantoni said Bruen requires a \u201chistorical analogue\u201d to exist for a firearm prohibition to pass muster. That means a similar law restricting firearms had to exist at the time of the Second Amendment\u2019s ratification for a present-day law to prevail.<\/p>\n
A lower court judge in 2023 ruled against<\/a> Bellantoni\u2019s client. However, in January, a three-judge appeals panel reversed that ruling<\/a> in a split decision. It found that California\u2019s restriction on open carry in counties with populations over 200,000 had no historic justification under Bruen.<\/p>\n That triggered Wednesday\u2019s hearing before the en banc court.<\/p>\n Bellantoni said her client\u2019s suit didn\u2019t focus on California\u2019s licensing scheme but instead was a challenge to its restrictive laws that could impose criminal penalties.<\/p>\n \u201cIn all circumstances, this statute would be unconstitutional,\u201d Bellantoni said, indicating the challenge was facial. \u201cIt bans the actual right itself.<\/p>\n \u201cThe right to bear arms exists before the licensing, not because of it,\u201d she added.<\/p>\n One judge said that, under Bellantoni\u2019s theory, any licensing scheme would be considered unconstitutional. Bellantoni countered that open carry has never faced licensing regulations in the nation\u2019s history, which makes them fail under Bruen.<\/p>\n Arguing for California, attorney Samuel Harbourt argued states are empowered to impose licensing requirements on firearms.<\/p>\n According to Harbourt, Bruen allows a restriction on the manner of carry, like open or concealed. California isn\u2019t imposing a ban.<\/p>\n U.S. Circuit Judge Kenneth Lee, a Trump appointee, said no restriction on open carry has existed in the past.<\/p>\n \u201cShouldn\u2019t we give at least some deference to that?\u201d asked Lee, who sided with the majority in January\u2019s decision that reversed the lower court.<\/p>\n Harbourt argued Bruen\u2019s purpose isn\u2019t to freeze 18th and 19th century regulations in place. Instead, it instructs courts to examine historic laws through the lens of the right of armed self-defense.<\/p>\n California allows people to concealed carry, which Harbourt called an effective mechanism of self-defense.<\/p>\n One judge questioned how difficult it is for a Californian to obtain a concealed carry license. That potentially could lead to a scenario where someone couldn\u2019t open or concealed carry, as they couldn\u2019t get a license for either.<\/p>\n Given a chance to rebut, Bellantoni said \u201cmanner of carry\u201d referred to what people today would consider brandishing or menacing, not merely openly carrying a firearm.<\/p>\n \u201cOpen carry had no negative context and never had any negative context,\u201d she added.<\/p>\n The en banc court took the matter under submission.<\/p>\n The court included Chief Judge Mary Murguia, a Barack Obama appointee, as well as U.S. Circuit Judges Milan Smith Jr., a George W. Bush appointee; Morgan Christen, Jacqueline Nguyen, John Owens and Michelle Friedland, all Obama appointees; Ryan Nelson and Bridget Bade, Trump appointees; and Ana de Alba, a Joe Biden appointee.<\/p>\n Subscribe to our free newsletters<\/p>\n Our weekly newsletter Closing Arguments offers the latest about ongoing
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