California’s law that prohibits open carry of handguns without a license is on thin legal standing.
The 9th Circuit Court of Appeals has ordered a lower court to reconsider its ruling because the lower court had “abused its discretion” when it did not prevent the open-carry handgun law from being enforced while it is being challenged.
The Appeals Court instructed the lower court with language that will ultimately make it more difficult to uphold the ban.
The Ninth Circuit judges sent the ruling back to the district judge and provided instructions on how she should view the constitutional questions, giving the lower court judge side rails that make it more difficult for the state to prove its laws are constitutional.
The case involves two men — Mark Baird and Richard Gallardo — who want to exercise their right to openly carry handguns in California.
California says that in counties that have over 200,000 residents, open carry is prohibited without a license. Although Baird and Gallardo do live in counties smaller than 200,000, were not able to get open-carry permits from California.
The two men have been litigating the matter since 2019 and have asked the lower court on three different occasions to stop enforcing the law that criminalizes open carry.
The district judge, who is an Obama appointee, denied the men’s request for a preliminary injunction in 2020.
Baird and Gallardo took their case to the Ninth Circuit to get a reversal of that denial. A three-judge panel granted their wish on Thursday. The judges on the panel were two Trump appointees and a George W. Bush appointee, who found that the district court judge had abused the legal standard when she denied the preliminary injunction.
“This appeal presents the question whether, in a case in which a plaintiff alleges a constitutional violation, a district court can deny a motion for a preliminary injunction without analyzing the plaintiff’s likelihood of success on the merits,” Judge Lawrence VanDyke wrote in the ruling. “The answer to that question is clear: a district court may not do so.”
The panel gave the lower court judge instructions on how she must consider the law in her ruling. She will be required to determine if California’s sweeping open-carry ban is covered by the Second Amendment. She must also consider if the State of California can show that an open-carry ban was in place when the Second Amendment or the 14th Amendment was ratified.
The lower court judge must also determine if Baird and Gallardo are likely to win their appeal on the basic right to open carry.