Baird v. Bonta: California Open Carry Ban Challenge (En Banc Rehearing Pending)

On January 2, 2026, a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit struck down California's prohibition on open carry of firearms in counties with populations exceeding 200,000 residents. The decision in Baird v. Bonta, No. 24-565 ^[1] covers approximately 95% of California's population and represents the most significant Second Amendment ruling to affect California's open carry laws in decades.

Statutes at Issue

The panel addressed two California Penal Code provisions as applied in counties with populations of 200,000 or more:

• PC 25850 ^[2] -- prohibits carrying a loaded firearm on the person or in a vehicle in any public place or on any public street in an incorporated city, or in a prohibited area of unincorporated territory
• PC 26350 ^[3] -- prohibits openly carrying an unloaded handgun in public places in incorporated cities and prohibited areas of unincorporated territory

Together, these provisions created a near-total open carry prohibition covering roughly 95% of Californians in the state's more populous counties.

The Majority Opinion

Judge VanDyke authored the majority opinion, joined by Judge Lee. Applying the text, history, and tradition framework from NYSRPA v. Bruen, 597 U.S. 1 (2022), the panel held that PC 25850 and PC 26350 are unconstitutional as applied in high-population counties.

On text: Open carry of a firearm in public constitutes "bearing arms" within the meaning of the Second Amendment, bringing the conduct within the Amendment's presumptive protection.

On history: California failed to identify any "distinctly similar" historical analogue for restricting open carry based on county population. The court found no Founding-era or Reconstruction-era laws that restricted open carry along population-threshold lines. Laws California cited were either too recent, too geographically narrow, or -- as to explicitly race-based enactments -- not legitimate historical analogues under the Bruen framework.

The Dissent

Judge N. Randy Smith dissented. He argued that Bruen protects "public carry" as a general right, not any specific mode of carry. Under this view, a state satisfies the Second Amendment by permitting some lawful public carry mode -- whether open or concealed -- and may restrict one mode if the other remains available. Because California's shall-issue CCW licensing scheme allows concealed carry, Judge Smith concluded California had not eliminated the right to public carry. He aligned this position with the Second Circuit's reasoning in Frey v. City of New York.

California's Response and DOJ Enforcement Guidance

Attorney General Rob Bonta filed a petition for rehearing en banc on January 16, 2026 ^[4]. The California DOJ initially issued Information Bulletin 2026-DLE-04 ^[5] instructing all law enforcement agencies to continue enforcing PC 25850 and PC 26350 while the en banc petition was pending.

That guidance was superseded by Information Bulletin 2026-DLE-10 (April 16, 2026), issued one day after the Ninth Circuit's April 15, 2026 vacatur and en banc rehearing order. 2026-DLE-10 is the current operative DOJ enforcement guidance and confirms that California's open carry statutes remain fully enforceable while the en banc rehearing proceeds.

Current Status (May 2026)

On April 15, 2026, the Ninth Circuit ordered the case reheard en banc and vacated the three-judge panel opinion issued on January 2, 2026 ^[6]. The panel opinion no longer exists as precedent. It was not merely "stayed" or "tolled," it was vacated and has no legal force.

En banc oral argument is scheduled for the week of June 1, 2026. The mandate will not issue until the en banc court hears and decides the case. Until then, California's open carry restrictions under PC 25850 and PC 26350 remain fully enforceable statewide. The California DOJ confirmed the enforcement posture in Information Bulletin 2026-DLE-10, dated April 16, 2026, which superseded the earlier 2026-DLE-04 guidance ^[7].

The en banc court's record in recent Second Amendment cases, upholding the large-capacity magazine ban in Duncan v. Bonta (7-4, March 2025) and sustaining many SB 2 sensitive places restrictions in May v. Bonta (September 2024), makes the eventual en banc outcome uncertain. The discussion of the panel's reasoning above describes a now-vacated opinion and is provided for historical context only.

Practical Guidance

Open carry remains illegal in California. Do not openly carry a firearm in any incorporated city or in any county with a population over 200,000, which covers nearly all of the state. The January 2, 2026 panel opinion has been vacated and provides no legal protection. Continue complying with all existing open carry prohibitions until the Ninth Circuit resolves the en banc rehearing.