By Alan Riquelmy
SACRAMENTO, Calif. (CN) — A federal judge on Friday gave California Attorney General Rob Bonta a major win in an open carry case, granting the state’s request for summary judgment.
U.S. District Court Chief Judge Kimberly Mueller also found a motion for a preliminary injunction filed by Mark Baird and Richard Gallardo moot, as the case is now closed.
Baird and Gallardo sued the California attorney general in 2019 over a licensing issue. The state bans open carry, except in counties with a population under 200,000. The two men live in counties without that prohibition, yet still couldn’t get an open carry license.
Their attorney, Amy Bellantoni, argued in court last month that open carry, concealed or not, is a natural right, and that the state can’t force someone to get a license to carry. She also pointed to New York Rifle and Pistol Association v. Bruen, a landmark U.S. Supreme Court ruling that has had resounding implications for firearm policy since it was decided in 2022.
Under Bruen, a historical analogue must exist — a similar law affecting firearms when the Second Amendment was ratified in the 18th century — for a current gun restriction to be lawful.
Mueller, a Barack Obama appointee, ruled Friday that California, in fact, did have such laws.
“Those historical laws also were similarly restrictive, if not more so,” the judge wrote. “Baird and Gallardo have not refuted the state’s evidence. For these reasons … the court concludes the state has shown what it must to prove its laws are constitutional.”
According to Mueller, Baird and Gallardo object to asking the government for permission before they can lawfully use a preexisting right. However, attorneys for the state countered that the Second Amendment doesn’t “compel unlicensed open carry.”
“Nor, in the state’s view, does ‘the plain text of the Second Amendment … require any right to openly carry when concealed carry (and open carry under more limited circumstances) is authorized.’”
Mueller wrote that Baird and Gallardo argue that California cannot require them to carry handguns in a specific way — in this case, concealed. The judge called that argument unpersuasive because American governments have placed restrictions on the manner people carry firearms since the nation’s founding.
Baird and Gallardo also argue that the state pointed to irrelevant statutes either before or long after the point the Second Amendment was adopted, in its attempt to satisfy the Bruen requirement.
Mueller wrote that the men’s expert — who has a master’s in history and has published papers on the Second Amendment and firearms history — offered “poorly reasoned” opinions that suggested a lack of expertise. He also made verbal, hyperbolic attacks rooted more in partisanship than history.
“’Of course, California’s politicians would rather focus on guns rather than ask how deinstitutionalization in the 1960s created cities awash in homeless often mentally ill drug addicts, sidewalks with discarded hypodermic needles and human feces and random acts of mass murder,” Mueller quoted the expert in her ruling.
Conversely, the state’s experts were “measured, persuasive and thorough,” Mueller wrote.
Additionally, the judge wrote that neither man sued any local authority over licensing, or provided evidence about their policies and procedures. Also, Baird testified at a deposition that in 2021 he had an open carry license application approved, though it has since expired.
The issue of the pending motion for preliminary injunction by Baird and Gallardo, now deemed moot, was a separate, though related, matter.
Mueller previously had denied the men a preliminary injunction, which sought to stop enforcement of the state law criminalizing unlicensed open carry. They then appealed to the Ninth Circuit Court of Appeals.
The appeals court in September reversed Mueller’s decision, stating the federal judge used an incorrect legal standard in her ruling. It also stated Mueller should move quickly on the issue.
Bellantoni, the men’s attorney, in mid-October wrote to the appeals court about a lack of a decision. She worried that Mueller would delay a decision on the injunction until the summary judgment motions were submitted and possibly decided.