Updated August 8, 2026. Educational information only — not legal advice.
Two circuits, two answers
The federal courts of appeals now disagree about a basic Second Amendment question: does the right to “bear” arms protect openly carrying a handgun in public?
In Baird v. Bonta (Ninth Circuit, January 2, 2026), a 2–1 panel said yes — striking California’s ban on open carry in counties over 200,000 people and holding that the state could not offer concealed carry as a substitute for a mode of carry the founding generation plainly practiced. In Frey, the Second Circuit went the other way, upholding New York’s open-carry prohibition on the theory that a state may channel public carry into the concealed, licensed variety.
Those positions cannot both be right, and that is exactly the kind of disagreement — a “circuit split” — that the Supreme Court exists to resolve.
Why the split isn’t ripe quite yet
There’s a procedural wrinkle: the Ninth Circuit granted en banc review of Baird, which wipes the panel opinion off the books while eleven judges reconsider the case. Argument was heard in June 2026 and a decision is pending. Until it lands, the “split” is only potential:
- If the en banc court affirms that open carry is protected, the split with Frey becomes concrete — and California would almost certainly petition the Supreme Court.
- If the en banc court reverses and upholds the ban, the circuits align — but then Baird’s lawyers become the ones seeking certiorari, armed with a sharp dissent or two and a Supreme Court that has taken a Second Amendment case in each of its last several terms.
Either way, the losing side has a credible path to One First Street.
Why the Supreme Court might bite
Three reasons. First, the Court’s own precedents — Heller, Bruen, and this June’s Wolford v. Lopez — keep reaffirming that public carry is part of the right, while leaving the open-vs-concealed question unresolved. Second, Bruen itself dropped a famous footnote observing that states may regulate the manner of carry, but only so long as some lawful avenue exists; whether a state can ban open carry entirely while licensing concealed carry is the natural next question. Third, the Court has shown, in Wolford, that it is willing to police lower courts it believes are underenforcing Bruen — and the Ninth Circuit’s en banc record on gun cases is a running theme in cert petitions.
What it would mean for California
A Supreme Court ruling that the Second Amendment protects open carry would not turn California into a constitutional-carry state. The realistic endgame is a licensing regime: open-carry permits with training requirements, location restrictions, and the sensitive-places rules that survive separate litigation. The Legislature, not the courts, would write those rules — likely under deadline pressure, as happened after Bruen with SB2.
What to watch
The en banc Baird decision is the trigger for everything else — expect it in the coming months. From there, a cert petition takes roughly a year to resolve, so the Supreme Court endgame, if it comes, is a 2027–2028 story. We’ll track each step here in Legal Updates.
Sources: Baird v. Bonta panel opinion • Volokh Conspiracy analysis • En banc argument coverage • Wolford v. Lopez, SCOTUSblog
This article is educational content from CAGUNS Resource Hub and is not legal advice. Consult a qualified attorney about your specific situation.