A divided federal appeals court on Jan. 2 struck down California’s ban on open carry of firearms in most parts of the state, finding that it violates the U.S. Constitution’s Second Amendment.

A panel of the U.S. Court of Appeals for the Ninth Circuit ruled 2–1 in favor of a gun owner, finding that the state prohibition on open carry of guns in counties that have more than 200,000 residents violates the constitutional right to keep and bear arms.

About 95 percent of the Golden State’s inhabitants reside in counties of that size.

Gun owner Mark Baird had previously filed a civil rights lawsuit against California Attorney General Rob Bonta, arguing the ban was unconstitutional. A federal district court denied Baird’s request for a preliminary injunction blocking the law, without providing an analysis of Baird’s likelihood of succeeding on the merits.

The Ninth Circuit then vacated the ruling and sent the case back to the district court to properly consider Baird’s likelihood of success. Instead, the district court failed to comply with the Ninth Circuit’s direction and granted summary judgment in favor of the state.

On Jan. 2, the panel reversed the district court’s ruling.

Circuit Judge Lawrence VanDyke said the state law was inconsistent with the U.S. Supreme Court’s 2022 ruling in New York State Rifle and Pistol Association v. Bruen. That decision held that there is a constitutional right to bear arms in public for self-defense and that gun restrictions must adhere to “this nation’s historical tradition of firearm regulations.”

“The historical record makes unmistakably plain that open carry is part of this Nation’s history and tradition,” the judge said in the panel’s majority opinion.

“It was clearly protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment, [which applied the Second Amendment to the states],” he said. “There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation.

“[Under the Bruen precedent], this is a straightforward case. California is attempting to address a general societal problem through materially different means than were used during either the Founding or Reconstruction.”

VanDyke said upward of 30 states generally allow open carry and that, until 2012, California had allowed residents to carry holstered handguns openly.

In a concurring opinion, Circuit Judge Kenneth Lee criticized the state, saying that it has “apparently resorted to subterfuge to deny its citizens their Second Amendment rights.”

Although California claims that people in counties with populations of less than 200,000 can apply for an open carry license, the state acknowledges that it “has no record of even one open-carry license being issued,” according to Lee.

“How could this be?” he said. “One potential reason is that California has misled its citizens about how to apply for an open-carry license.”

Lee also said the application a person seeking an open carry license needs to complete is cumbersome and confusing.

“Our own state government must behave better than an unscrupulous telemarketer,” he said.

Reuters contributed to this report.