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Are "open carry" rights about to be restored in California?

Posted by Neil Shouse | Aug 02, 2018 | 0 Comments

Updated

Is “open carry” coming back to California?

Open carry laws may be about to be restored in California. In the recent case of Young vs Hawaii, the 9th Circuit ruled that open carry was guaranteed by the 2nd Amendment. The court said that people have a Constitutional right to carry guns in public for self-defense. It was a subpanel of the 9th Circuit that ruled on this decisions. We are awaiting a ruling from the full court. That decision could pave the way for open carry rights to be restored in California. Prior to 2012, anyone legally permitted to own a gun could carry an unloaded handgun in public. This so-called “open carry” exception to California’s gun laws applied as long as the gun was in plain sight and the individual was not in a prohibited area. However, California’s “open carry” right was repealed effective January 1, 2012. This is the date on which California Assembly Bill 144 went into effect as Penal Code 26350. Thanks to Penal Code 26350, the open carrying of both loaded and unloaded handguns in public is now illegal. More info at http://www.shouselaw.com/open-carry.html

The open carry of firearms in California is still generally illegal. But things may change in the next year or so. In 2018, the Ninth Circuit ruled in Young v. State of Hawaii that the Second Amendment guarantees open carry. But the Ninth Circuit will be rehearing the case. Pending the court's new decision, open carry remains largely unlawful in California.

1. Is open carry legal in California?

In general, it is illegal to openly carry guns in California.1 But there are various exceptions depending on:

  1. Whether the firearm is loaded or not;
  2. The type of firearm;
  3. The location of the carrying; and
  4. The particular county or city the carrying occurs in

1.1. Open carry of loaded handguns

In counties with a population under 200,000, the sheriff or a chief of police may grant licenses to carry a loaded and exposed handgun. These licenses do not apply to long guns (such as rifles or shotguns). And these licenses are valid only county-wide.2

In general, carrying loaded firearms in vehicles is illegal as well. But there are various exceptions, such as for people with CCW permits.3 Learn how to get CCW permits in California.

The unlawful open carry of loaded handguns is usually a misdemeanor. (Scroll down to section 3 for penalties.)

1.2. Open carry of unloaded handguns

In general, it is illegal to open carry an unloaded handgun in public.4 But California has various exceptions for:

  • Peace officers
  • Military members
  • Hunters with a license

It is usually legal to carry an unloaded handgun in a vehicle's locked trunk or a locked container.5 And it may be legal to open carry an unloaded handgun in a vehicle if:

  • The street is in an unincorporated area, and
  • It is not illegal to possess guns in that area6

Car owners or drivers could be prosecuted for knowingly allowing other people to open carry in their vehicles.7

The unlawful open carry of unloaded handguns is usually a misdemeanor. (Scroll down to section 3 for penalties.)8

1.3. Open carry of unloaded long guns

In general, it is illegal to open carry an unloaded shot gun or rifle in the following locations:

  • An incorporated city,
  • An incorporated county, and
  • Places where guns are forbidden in unincorporated areas9

As with unloaded handguns, there are exceptions in California for:

  • Peace officers
  • Military members
  • Hunters with a license10

The unlawful open carry of unloaded handguns is usually a misdemeanor. (Scroll down to section 3 for penalties.)11

2. What is Young v. Hawaii? How does it affect California law?

In Young v. State of Hawaii, the plaintiff challenged Hawaii's restrictions on gun permits. Hawaiian law stated that:

  • Open carry is limited to people “engaged in the protection of life and property,” and 
  • Concealed carry is limited to people who can demonstrate an “exceptional case” to fear injury

The Ninth Circuit Court of Appeals agreed with Hawaii that the concealed carry restriction is lawful. It cited the Ninth Circuit's holding in Peruta v. County of San Diego (Peruta II). In Peruta, the Ninth Circuit upheld California's prohibition on carrying concealed weapons. The justices concluded that the Second Amendment does not guarantee the right to carry a concealed firearm in public.

However, the Ninth Circuit's three-justice panel decided 2-1 that open carry was guaranteed by the Second Amendment. The justices said that people have a constitutional right to openly carry guns in public for self-defense.

The Ninth Circuit's ruling overrides California law. But it has yet to take effect. Hawaii requested that the court rehear the case en banc. This means with a full panel of 10 justices deciding on the case. The Ninth Circuit could then either:

  • Uphold the decision in the Young case, or
  • Overturn the decision. This would set up an inconsistency between the Ninth Circuit and other circuits that have upheld open carry. 

But this rehearing has been stayed. It is pending the U.S. Supreme Court's ruling in New York State Rifle & Pistol Association Inc. v. City of New York. The rehearing will probably occur in 2020 or 2021.12

Note that Ninth Circuit decisions apply to California as well as:

  • Nevada,
  • Oregon,
  • Alaska,
  • Hawaii,
  • Arizona,
  • Idaho,
  • Montana,
  • Guam, and
  • The Northern Mariana Islands

3. What are the penalties for open carry in California?

Carrying a loaded firearm in public (Penal Code 25850 PC) is usually a misdemeanor. The punishment carries:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $1,000

But depending on the defendant's criminal history and the circumstances, it can sometimes be punished as a felony. Felony penalties for carrying a loaded gun can include:

  • 16 months, or two (2) or three (3) years in county jail, and/or
  • A fine of up to $1,00013

Meanwhile, carrying an unloaded handgun is also a misdemeanor if both:

  1. The defendant is in immediate possession of the handgun and ammunition, and
  2. The defendant is not in lawful possession of the handgun

The sentence includes:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $1,00014

Finally, carrying an unloaded long gun is a misdemeanor. The penalties include:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $1,00015

Legal References

  1. California Penal Code 25858 PC.
  2. California Penal Code 26150 PC, 26155 PC.
  3. California Penal Code 25400 PC.
  4. California Penal Code 17030 PC, 26350 PC.
  5. California Penal Code 26389 PC.
  6. California Penal Code 17030 PC, 26350 PC.
  7. California Penal Code 17512 PC
  8. California Penal Code 26350 PC.
  9. California Penal Code 26400 PC.
  10. California Penal Code 26405 PC.
  11. California Penal Code 26400 PC.
  12. Young v. State of Hawaii, 896 F.3d 1044 (9th Cir. 2018), reh'g en banc granted, 915 F.3d 681 (9th Cir. 2019).
  13. California Penal Code 25850 PC.
  14. California Penal Code 26350 PC
  15. California Penal Code 26400 PC

 

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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