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.
SEATTLE (CN) – A Ninth Circuit en banc panel appeared at times confused by arguments about California laws restricting the open carry of firearms.
Attorney Amy Bellantoni, representing a Siskiyou County man challenging statutes she said criminalized open carry, asked the appeals court to stop the state from enforcing those laws. She argued that the laws criminalize a natural right that existed before the formation of any government.
“These statutes, by threatening criminal penalties, prohibit the general public from possessing a loaded firearm,” Bellantoni said.
The questions came quickly.
US Circuit Judge Eric Miller, an appointee of Donald Trump, said the landmark case in point – New York State Rifle and Pistol Association v. Bruen— said the law allowed some prohibitions on open carry. Other justices questioned whether Bellantoni’s client was using a facial challenge, meaning the laws were unconstitutional in all respects, or an as-applied challenge: laws are constitutional unless they are applied in a specific way.
Bellantoni took Bridge requires that there be a “historical analogue” for the firearms ban to pass. This means that a similar law restricting firearms had to exist at the time of the ratification of the Second Amendment for a law today to prevail.
A lower court judge in 2023 decided against Bellanton’s client. However, in January, a three-judge appeals panel reversed that decision in a split decision. He found that California’s restriction on open carry in counties with populations over 200,000 had no historical justification under Bridge.
That triggered Wednesday’s hearing before the enbanc court.
Bellantoni said her client’s lawsuit did not focus on California’s licensing scheme, but instead was a challenge to its restrictive laws that could impose criminal penalties.
“Under all the circumstances, this statute would be unconstitutional,” Bellantoni said, indicating that the challenge was facial. “He stops the current right itself.
“The right to bear arms exists before licensing, not because of it,” she added.
One judge said that, under Bellanton’s theory, any licensing scheme would be unconstitutional. Bellantoni countered that open carry has never faced licensing regulations in the country’s history, which makes them fail under Bridge.
Arguing for California, attorney Samuel Harbort argued that states are authorized to set firearms licensing requirements.
According to Harbourt, Bridge allows a restriction on the retention mode, such as open or hidden. California is not imposing a ban.
U.S. District Judge Kenneth Lee, a Trump appointee, said there have been no restrictions on open carry in the past.
“Shouldn’t we at least give that some respect?” asked Lee, who sided with the majority in the January ruling that reversed the lower court.
Harbourt argued that Bruen’s intention is not to freeze 18th and 19th century regulations in place. Instead, it instructs courts to examine historical laws through the lens of the right of armed self-defense.
California allows people to carry concealed, which Harbort called an effective self-defense mechanism.
A judge asked how hard it is for a Californian to get a concealed carry license. This could potentially lead to a scenario where one could not open or conceal carry, as they could not obtain a license for either.
Given a chance to object, Bellantoni said “manner” referred to what people today would consider waving or threatening, not simply carrying a firearm.
“Openly there was no negative context and there never was any negative context,” she added.
The court en banc took the case under submission.
The court included Chief Justice Mary Murguia, an appointee of Barack Obama, as well as US District Judges Milan Smith Jr., an appointee of George W. Bush; Morgan Christen, Jacqueline Nguyen, John Owens and Michelle Friedland, all Obama appointees; Trump appointees Ryan Nelson and Bridget Bade; and Ana de Alba, a Joe Biden appointee.
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