The Ninth Circuit’s latest decision, if sustained following further appeal, reinstates the fundamental natural right to keep and bear arms for tens of millions of Californians.

Tweet

“When seconds matter, the police are only minutes away.”  

Reciting that adage in no way disparages police officers.  

Rather, it simply acknowledges that during home invasions, assaults or active threats, officers must be contacted, dispatched, drive to the scene, locate the exact point of crisis and act as best they can.  That chain of events is typically measured in minutes, not seconds.  

The reality that violence can erupt without notice offers a fundamental reason why our Founding Fathers deliberately protected the individual right to keep and bear arms in the Second Amendment to our Constitution.  

To that end, a welcome new ruling from a federal appellate court shows that the judicial branch continues to chip away at government attempts to stifle our Second Amendment rights.  The fact that the decision emerges from the notoriously left-leaning Ninth Circuit Court of Appeals only offers additional reason for celebration.  

In Baird v. Bonta, issued earlier this month, the Ninth Circuit held that California’s near-total prohibition on open carry of firearms violates the Second Amendment under recent United States Supreme Court precedent.  That controlling Supreme Court ruling, New York State Rifle & Pistol Association v. Bruen (2022), requires that modern restrictions upon our right to keep and bear arms must be affirmatively proven by government authorities to fall within longstanding historical tradition of similar regulation.  Otherwise, those restrictions violate the Second Amendment.  

In Baird, the Ninth Circuit ruled that California cannot cite any such longstanding historical tradition:  

For most of American history, open carry has been the default manner of lawful carry for firearms.  It remains the norm across the country – more than thirty states generally allow open carry to this day, including states with significant urban populations.  …  Similarly, for the first 162 years of its history open carry was a largely unremarkable part of daily life in California.  From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California (open or concealed) was entirely unregulated.  

And when California first deviated (or considered deviating) from this practice, its reasons for doing so were less than morally exemplary.  The first restriction on public carry that California contemplated was a concealed-carry ban in 1856 – which was intended to apply only to “Mexicans,” who were considered dangerous.  

So there you have it.  Not only is California unable to affirmatively prove that open carry prohibitions fall within longstanding historical tradition, the only time that it was contemplated in its early history was for discriminatory reasons that would be impermissible today.  

“Open carry,” the Court concluded, “is unquestionably part of our Nation’s history and tradition of ‘the right to keep and bear arms.’”  Consequently, it determined, “this is a straightforward case.”  

The Ninth Circuit’s latest decision, if sustained following further appeal, reinstates the fundamental natural right to keep and bear arms for tens of millions of Californians.  Additionally, it underscores a broader trend in American jurisprudence toward protecting, rather than eroding, citizens’ gun rights.  For decades, anti-Second Amendment activists and politicians have treated the right to keep and bear arms as some sort of peculiar privilege to be whittled away in the alleged name of public safety.  

The Ninth Circuit emphatically rejected that illogic, instead reaffirming that the Bill of Rights and our nation’s history safeguard the right of law-abiding citizens to protect themselves and their communities by exercising their right to self-defense against assault.  

The Ninth Circuit’s Baird ruling arrives at a pivotal moment for another reason.  

On the nationwide level, the U.S. Supreme Court just heard oral argument in Wolford v. Lopez, another Second Amendment challenge to Hawaii’s draconian firearms restrictions.  Specifically, Hawaiian law requires that concealed-carry permit holders secure express affirmative permission from property owners – such as stores or restaurants – before bringing firearms onto the premises.  At oral argument, the justices appeared skeptical of that law’s constitutionality, naturally prompting speculation that a conservative majority will strike the law down as inconsistent with Bruen and the nation’s history of Second Amendment regulation.  

Cumulatively, these cases offer encouraging reaffirmation of the nation’s ongoing trajectory toward more individual Second Amendment freedom, not less.  

For Americans who rightly value the individual freedom to keep and bear arms under the Second Amendment, this is a moment to celebrate the hard work that led to a judicial branch populated by judges and justices who rule accordingly.  We must also, however, continue to work within the legislative and executive branches at the federal, state and local levels to ensure that we needn’t rely on judges continuing to make correct rulings on this important right.  

Although the arc of American jurisprudence continues to bend toward justice, we mustn’t allow it to reverse course.