I don't know how many times California and the judges who cover for the state's unconstitutional guns and ammo laws need to get spanked for them, but Governor Gavin Newsom and his wingman at the attorney general's office just got another kick in the ass from the 9th Circuit Court of Appeals on Friday. And how.
Friday's Baird v Bonta decision pointed out that not only does California's law, in effect, ban open carry throughout the state, but basically tries to pull a fast one on the public by hiding that limited and unconstitutional open-carry law in a 17-page "license" permit that is tantamount to what a judge called a "Where's Waldo quiz." Oh, it's a beaut, too.
Indeed, the very law limiting Californians from open carrying was judged to be about as legit as that Where's Waldo quiz.
Judge Lawrence Van Dyke wrote for the three-judge panel that California's open-carry ban in 95% of California wasn't an open-carry law at all. California got cover from a federal district court judge who mocked and partially overturned its decision. Then Judge Van Dyke, whom Donald Trump appointed to the bench, remanded the case back to the district court and ordered that judge to change her decision and give the win to the Second Amendment fan who brought the lawsuit.
Since the 2022 Bruen Supreme Court decision, judges have been directed to weigh laws impacting Second Amendment rights to include the historical state of play at the time of the country's founding.
"[T]he historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition," Van Dyke wrote in the 98-page opinion. And then he got out the color crayons to draw some rhetorical simple stick figures for California Attorney General Rob Bonta, Governor Gavin Newsom, and the federal district judge who closed her eyes and gave California the win in the previous round of appeals. "There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation," he wrote.
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He was hardly done. Here's the best part of his decision.
The state suggests that we can ignore the tremendous evidence of a tradition of open carry dating back to the Founding because Baird is only challenging a licensing regime. But that is inaccurate. California’s legal regime is a complete ban on open carry in urban areas—the areas of the state where 95% of the people live. A licensing regime that entirely bans open carry in all the areas of the state where 95% of the population reside is a ban on open carry in those areas, theoretical exceptions notwithstanding. If a state by statute categorically banned drivers’ licenses for 95% of the state’s drivers, or for 95% of the roads in the state, it would be quite strange to characterize that as a mere “licensing” regime. We would have no trouble recognizing such a characterization as classic Orwellian doublespeak.
As Judge Kenneth K. Lee, also a Trump nominee, wrote in his concurring opinion, California would outlaw California's open-carry law if a company had been responsible for this "subterfuge."
California insists that citizens in counties with populations fewer than 200,000 people can apply for an open-carry license. Yet California admits that it has no record of even one open-carry license being issued. How could this be? One potential reason is that California has misled its citizens about how to apply for an open-carry license.
The judge continued:
The only way that a Californian seeking an open-carry permit would know that she must submit a Concealed Carry Weapon form is if she scoured the dense 17-page document and found in small print on one of the pages that a “CCW license shall be issued . . . [w]here the population of the county is less than 200,000 persons according to the most recent federal decennial census, a license to carry loaded and exposed in only that county a pistol, revolver, or other firearm capable of being concealed upon the person.” The reader can try to find that language in the form, which is attached as Appendix A to this concurrence. Most Californians would have no clue. But that appears to be the very point—California tries to hide the fact that citizens in those counties have a right to open carry their weapon under the law. Our constitutional rights, however, should not hinge on a Where’s Waldo quiz.
See the 17-page open carry license that applies only in counties where there are 200,000 or fewer persons — covering only 5% of California's population — here, on pages 61-74. Better have a can of Celsius or a hot coffee to keep you awake for this read. Oh, and you'll probably want to find yourself a magnifying glass.
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Kimberly J. Mueller, the Barack Obama judge who went along with this charade, is ordered to give the Siskyou County resident the win. Bonta's brigade of lawyers partially persuaded the district judge; they argued, weakly it turned out, that efforts to change open-carry laws based on the Black Panthers and "Mexicans" from the past somehow made banning open carry for 95% of California just fine. Indeed, Van Dyke characterized her attempt to stitch together those examples as "too sloppy a fit."
No doubt, Bonta will ask for a full 9th Circuit en banc hearing, since he got spanked so hard here.
Stay tuned.
