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

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

It is still illegal to openly carry a gun in public in California. But a recent court ruling may change this.

The case is Young v. State of Hawaii, which was decided in February. In the Young case, the Ninth Circuit Court of Appeals held that the Second Amendment guarantees the right of open carry. Ninth Circuit decisions apply to California, Nevada, Oregon, Alaska, Hawaii, Arizona, Idaho, Montana, Guam, and the Northern Mariana Islands.

The plaintiff in the case had challenged Hawaii's restrictions on gun permits. The Hawaiian law basically 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 court agreed with Hawaii that the concealed carry restriction is lawful. It cited the Ninth Circuit's en banc holding in Peruta v. County of San Diego (Peruta II). In Peruta, the full 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.

In the Young decision, however, the court 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.

Does the ruling in Young v. Hawaii mean I can now openly carry a gun in California?

No… or at least, not yet. The Ninth Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the court's opinion. This presumably means the court would invalidate Hawaii's law.

But, Hawaii is likely to appeal the decision to a full (en banc) Ninth Circuit panel. The full Ninth circuit could then either:

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

In either case, the decision is likely to be appealed to the United States Supreme Court. There is no guarantee, however, that the Supreme Court would agree to hear this case.

In the meantime, California's law against open carry is still on the books. So, law-abiding gun owners will just have to wait a little bit longer.

Violation of California's law against carrying a loaded firearm in public (Penal Code 25850) is usually a misdemeanor. As a misdemeanor, it can be punished by:

  • 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 $1,000.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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