Mark Baird v. Rob Bonta

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK BAIRD AND RICHARD No. 23-15016

GALLARDO,

D.C. No. 2:19-cv-

Plaintiffs-Appellants, 00617-KJM-AC

v.

ROB BONTA, in his official capacity OPINION

as Attorney General of the State of

California,

Defendant-Appellee.

On Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted June 29, 2023

Pasadena, California

Filed September 7, 2023

Before: N. Randy Smith, Kenneth K. Lee, and Lawrence

VanDyke, Circuit Judges

Opinion by Judge VanDyke

2 BAIRD V. BONTA

SUMMARY *

Second Amendment/Preliminary Injunctions

The panel reversed the district court’s denial of

Appellants’ motion for a preliminary injunction seeking to

enjoin enforcement of California Penal Code sections that

impose criminal penalties for the unlicensed open carry of a

handgun, and remanded with instructions.

The panel held that the district court abused its discretion

by applying an incorrect legal standard to deny Appellants’

motion for a preliminary injunction. Instead of analyzing the

first factor set forth in Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008)—whether Appellants were likely to

succeed on the merits of their claim—the district court

erroneously determined that because the public interest and

balance of harms disfavored the issuance of a preliminary

injunction, it was not necessary to assess Appellants’

likelihood of success on the merits. Analysis of the first

Winter factor is centrally important where a plaintiff alleges

a violation of a constitutional right, including the

individual’s right to carry a handgun for self-defense outside

the home under the Second Amendment. Pursuant to N.Y.

State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022),

a government may regulate the manner of that carry only if

it demonstrates that the regulation is identical or closely

analogous to a firearm regulation broadly in effect when the

Second or Fourteenth Amendment was ratified.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BAIRD V. BONTA 3

The panel set forth three requirements to guide the

district court’s preliminary injunction analysis on remand:

• The district court’s analysis of the first Winter factor

must include consideration of whether the conduct

that California’s general open-carry ban regulates is

covered by the text of the Second Amendment. If it

is, California bears the burden to identify a well-

established and representative historical analogue to

its open-carry ban that was in force when the Second

or Fourteenth Amendment was ratified.

• Noting that it has been more than four years since

Appellants first moved for a preliminary injunction

and more than fourteen months since Bruen was

decided, the panel directed the district court to

complete its preliminary injunction review

expeditiously.

• If the district court determines that Appellants

showed that they are likely to succeed on the merits

of their claim, the district court must account for the

impact that determination has on the remaining

Winter factors when it analyzes each of them. This

means recognizing that, in cases involving a

constitutional claim, a likelihood of success on the

merits usually establishes irreparable harm, and

strongly tips the balance of equities and public

interest in favor of granting a preliminary injunction.

4 BAIRD V. BONTA

COUNSEL

Amy L. Bellantoni (argued), The Bellantoni Law Firm

PLLC, Scarsdale, New York, for Plaintiffs-Appellants.

Mica Moore (argued) and Lara Haddad, Deputy Attorneys

General, Attorney General’s Office, Los Angeles,

California; Ryan R. Davis, Deputy Attorney General; R.

Matthew Wise, Supervising Deputy Attorney General;

Thomas S. Patterson, Senior Assistant Attorney General;

Rob Bonta, California Attorney General; California

Attorney General’s Office, Sacramento, California; for

Defendant-Appellee.

OPINION

VANDYKE, Circuit Judge:

Appellants Mark Baird and Richard Gallardo wish to

openly carry handguns in California for self-protection, but

California’s current licensing regime effectively establishes

a statewide ban on open carry by ordinary law-abiding

Californians. With narrow exceptions, those Californians

who reside in counties with more than 200,000 residents—

roughly 95% of state residents—may not apply for an open-

carry license. Cal. Penal Code §§ 25850, 26150(b)(2),

26155(b)(2), 26350; see also id. §§ 26361–92 (exceptions).

A subset of the remaining 5% of Californians not subject to

other categorical bars may apply for an open-carry license

from the local county sheriff or police chief, but California

has provided no evidence that any such license has ever been

issued.

BAIRD V. BONTA 5

Appellants brought a Second Amendment suit against

the Attorney General of California in his official capacity

and sought a preliminary injunction enjoining the

enforcement of California Penal Code sections that impose

criminal penalties for unlicensed open carry. The district

court applied an incorrect legal standard to deny the

preliminary injunction. We therefore reverse and remand to

the district court with instructions to perform a proper

preliminary injunction analysis.

I. BACKGROUND

Appellants reside in counties with fewer than 200,000

inhabitants but have been unable to obtain an open-carry

license, so they cannot legally openly carry a handgun. They

argue that this prohibits conduct covered by the Second

Amendment, has no historical analogue, and therefore

infringes their Second Amendment right to bear arms for

self-defense. They sued the Attorney General of California

in his official capacity and thrice moved the district court to

preliminarily enjoin enforcement of sections 25850 and

26350 of the California Penal Code, which criminalize

unlicensed open carry of a handgun.

After a hearing, the district court denied the instant

preliminary injunction motion without analyzing whether

Appellants were likely to succeed on the merits of their claim

or likely to suffer irreparable injury. They now appeal the

district court’s order, arguing that the district court abused

its discretion by (1) conducting an incomplete preliminary

injunction analysis (2) that was flawed even on its own terms

because it consisted solely of a speculative or even

impermissible public safety analysis of the effects of issuing

a preliminary injunction. Appellants ask this court to reverse

6 BAIRD V. BONTA

the district court’s denial of a preliminary injunction,

because the court abused its discretion.

II. STANDARD OF REVIEW

We review a district court’s denial of a preliminary

injunction motion for abuse of discretion. Olson v.

California, 62 F.4th 1206, 1218 (9th Cir. 2023). A district

court abuses its discretion if it bases its decision “on an

erroneous legal standard or on clearly erroneous factual

findings.” Cal. Chamber of Com. v. Council for Educ. &

Rsch. on Toxics, 29 F.4th 468, 475 (9th Cir. 2022) (quoting

Am. Beverage Ass’n v. City & Cnty. of San Francisco, 916

F.3d 749, 754 (9th Cir. 2019) (en banc)). A district court

bases its decision on an erroneous legal standard if it fails to

“employ the appropriate legal standards that govern the

issuance of a preliminary injunction,” or if it applies the

appropriate standards but “misapprehend[s] the law with

respect to the underlying issues in the litigation.” Id.

(quoting Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d

1091, 1096 (9th Cir. 2008)).

The appropriate legal standard to analyze a preliminary

injunction motion requires a district court to determine

whether a movant has established that (1) he is likely to

succeed on the merits of his claim, (2) he is likely to suffer

irreparable harm absent the preliminary injunction, (3) the

balance of equities tips in his favor, and (4) a preliminary

injunction is in the public interest. See Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008); accord Chamber

of Com. of the U.S. v. Bonta, 62 F.4th 473, 481 (9th Cir.

2023). As a general matter, district courts “must consider”

all four Winter factors. Vivid Ent., LLC v. Fielding, 774 F.3d

566, 577 (9th Cir. 2014) (emphasis added). The first factor

“is a threshold inquiry and is the most important factor.”

BAIRD V. BONTA 7

Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir.

2020). Thus, a “court need not consider the other factors” if

a movant fails to show a likelihood of success on the merits.

Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th

Cir. 2017). When, like here, the nonmovant is the

government, the last two Winter factors “merge.” Nken v.

Holder, 556 U.S. 418, 435 (2009); Roman v. Wolf, 977 F.3d

935, 940–41 (9th Cir. 2020) (per curiam).

It is well-established that the first factor is especially

important when a plaintiff alleges a constitutional violation

and injury. If a plaintiff in such a case shows he is likely to

prevail on the merits, that showing usually demonstrates he

is suffering irreparable harm no matter how brief the

violation. See Planned Parenthood Ariz., Inc. v. Humble,

753 F.3d 905, 911 (9th Cir. 2014), abrogated on other

grounds by Dobbs v. Jackson Women’s Health Org., 142 S.

Ct. 2228 (2022). And his likelihood of succeeding on the

merits also tips the public interest sharply in his favor

because it is “always in the public interest to prevent the

violation of a party’s constitutional rights.” Riley’s Am.

Heritage Farms v. Elsasser, 32 F.4th 707, 731 (9th Cir.

2022) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002

(9th Cir. 2012)).

An “individual’s right to carry a handgun for self-

defense outside the home” under the Second Amendment is

one such constitutional right. N.Y. State Rifle & Pistol Ass’n

v. Bruen, 142 S. Ct. 2111, 2122 (2022). A government may

regulate the manner of that carry only if it demonstrates that

the regulation is identical or closely analogous to a firearm

regulation broadly in effect when the Second or Fourteenth

Amendment was ratified. Id. at 2129–30, 2133. A district

court should not try to help the government carry its burden

by “sift[ing] … historical materials” to find an analogue. Id.

8 BAIRD V. BONTA

at 2150. The principle of party presentation instead requires

the court to “rely on the parties to frame the issues for

decision.” United States v. Sineneng-Smith, 140 S. Ct. 1575,

1579 (2020) (quoting Greenlaw v. United States, 554 U.S.

237, 243 (2008)); see also Bruen, 142 S. Ct. at 2130 n.6

(“Courts are … entitled to decide a case based on the

historical record compiled by the parties.”).

If a movant makes a sufficient demonstration on all four

Winter factors (three when as here the third and fourth

factors are merged), a court “must not shrink from [its]

obligation to enforce [his] constitutional rights,” regardless

of the constitutional right at issue. Porretti v. Dzurenda, 11

F.4th 1037, 1047 (9th Cir. 2021) (quoting Brown v. Plata,

563 U.S. 493, 511 (2011)). It may not deny a preliminary

injunction motion and thereby “allow constitutional

violations to continue simply because a remedy would

involve intrusion into” an agency’s administration of state

law. Id. (quoting Brown, 563 U.S. at 511).

III. DISCUSSION

This appeal presents the question whether, in a case in

which a plaintiff alleges a constitutional violation, a district

court can deny a motion for a preliminary injunction without

analyzing the plaintiff’s likelihood of success on the merits.

The answer to that question is clear: a district court may not

do so. Because of how a finding that a plaintiff is likely to

succeed on the merits of a constitutional claim impacts the

other Winter factors, a district court necessarily abuses its

discretion when it skips analyzing the likelihood of success

factor in a case involving such a claim. This rule of course

applies to claims alleging a violation of the Second

Amendment right to bear arms, which the Supreme Court

has repeatedly emphasized is not a “second-class right,

BAIRD V. BONTA 9

subject to an entirely different body of rules than the other

Bill of Rights guarantees.” McDonald v. City of Chicago,

561 U.S. 742, 780 (2010); accord Bruen, 142 S. Ct. at 2156.

The district court here declined to undertake any analysis

of Appellants’ likelihood of success on the merits of their

claim. Instead, it conducted only an analysis of the last two

merged Winter factors, on the theory that the public interest

disfavoring a preliminary injunction can outweigh a

plaintiff’s showing that a law likely infringes his

constitutional rights and causes him irreparable harm. 1 This

was an abuse of discretion. We reverse with instructions to

guide the district court’s preliminary injunction analysis on

remand.

A. The district court abused its discretion by

improperly applying the preliminary injunction

standard.

As noted above, proper analysis of a preliminary

injunction motion requires a district court to examine the

Winter factors. The first factor—likelihood of success on

the merits—is the most important (and usually decisive) one

in cases where a plaintiff brings a constitutional claim,

including a Second Amendment claim. Bruen did not

change this multifactor preliminary injunction test, and the

district court therefore abused its discretion when it

deliberately skipped any analysis of the first Winter factor.

1

As part of that analysis, the district court inferred from the record that

issuing a preliminary injunction could endanger public safety because it

would temporarily deprive California of its “primary means of limiting

public handgun carrying to ‘ordinary, law-abiding citizens.’” Although

the record raises serious doubts about the soundness of that conclusion,

the parties did not brief the question of whether the district court abused

its discretion in relying on those inferences and so we do not address it.

10 BAIRD V. BONTA

1. The first Winter factor is centrally important in

cases where a plaintiff brings a constitutional

claim.

We begin with the relevant preliminary injunction

principles. The first Winter factor, likelihood of success, “is

a threshold inquiry and is the most important factor” in any

motion for a preliminary injunction. Env’t Prot. Info. Ctr.,

968 F.3d at 989. That holds especially true for cases where

a plaintiff seeks a preliminary injunction because of an

alleged constitutional violation. If a plaintiff bringing such

a claim shows he is likely to prevail on the merits, that

showing will almost always demonstrate he is suffering

irreparable harm as well. See Humble, 753 F.3d at 911;

Melendres, 695 F.3d at 1002 (“[T]he deprivation of

constitutional rights ‘unquestionably constitutes irreparable

injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)

(plurality opinion))); Hernandez v. Sessions, 872 F.3d 976,

995 (9th Cir. 2017) (holding that a finding of irreparable

harm “follows inexorably” from a “conclusion that the

government’s current policies are likely unconstitutional”).

Accordingly, “[w]hen an alleged deprivation of a

constitutional right is involved, … most courts hold that no

further showing of irreparable injury is necessary.” 11A

Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 2948.1 (3d ed. 1998).

A plaintiff’s likelihood of success on the merits of a

constitutional claim also tips the merged third and fourth

factors decisively in his favor. Because “public interest

concerns are implicated when a constitutional right has been

violated, … all citizens have a stake in upholding the

Constitution,” Preminger v. Principi, 422 F.3d 815, 826 (9th

Cir. 2005), meaning “it is always in the public interest to

prevent the violation of a party’s constitutional rights,”

BAIRD V. BONTA 11

Elsasser, 32 F.4th at 731 (quoting Melendres, 695 F.3d at

1002); see also Cal. Chamber of Com., 29 F.4th at 482

(“[T]his court has ‘consistently recognized the significant

public interest in upholding [constitutional] principles.’”

(quoting Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014))).

The government also “cannot reasonably assert that it is

harmed in any legally cognizable sense by being enjoined

from constitutional violations.” Zepeda v. INS, 753 F.2d

719, 727 (9th Cir. 1983); see also Rodriguez v. Robbins, 715

F.3d 1127, 1145 (9th Cir. 2013) (holding that the

government “cannot suffer harm from an injunction that

merely ends an unlawful practice” implicating

“constitutional concerns”). Accordingly, we have held that

plaintiffs who are able to “establish[] a likelihood that [a]

policy violates the U.S. Constitution … have also

established that both the public interest and the balance of

the equities favor a preliminary injunction.” Ariz. Dream

Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014);

see also Hernandez, 872 F.3d at 996.

In sum, because of the importance of the first Winter

factor in cases where a plaintiff alleges a constitutional

injury, it is no surprise that “our caselaw clearly favors

granting preliminary injunctions to a plaintiff … who is

likely to succeed on the merits of his [constitutional] claim.”

Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir.

2009).

2. The right to carry a handgun for defense outside

the home can be regulated only in ways closely

analogous to regulations widely in effect in 1791

or 1868.

Having established the centrality of the likelihood of

success on the merits factor to the preliminary injunction

12 BAIRD V. BONTA

analysis, we next provide a brief overview of the substantive

law that governs the merits inquiry in Appellants’ Second

Amendment challenge to California’s general open-carry

ban.

The Second Amendment guarantees the right to keep and

bear arms, see District of Columbia v. Heller, 554 U.S. 570,

592 (2008), including “an individual’s right to carry a

handgun for self-defense outside the home,” Bruen, 142 S.

Ct. at 2122. The Due Process Clause of the Fourteenth

Amendment incorporated the Second Amendment against

the states. See McDonald, 561 U.S. at 791. Following

Heller and McDonald, we applied “a two-step inquiry in

deciding Second Amendment cases.” Silvester v. Harris,

843 F.3d 816, 820–21 (9th Cir. 2016). First, we looked to

history to determine “whether the challenged law burden[ed]

conduct protected by the Second Amendment,” and, if so,

we then applied “the appropriate level of scrutiny,” id. at

821, depending on “the extent to which the law burden[ed]

the core of the Second Amendment right” of self-defense

and the severity of that burden, Jackson v. City & Cnty. of

San Francisco, 746 F.3d 953, 960–61 (9th Cir. 2014).

In Bruen, the Supreme Court expressly rejected the use

of such “means-end scrutiny in the Second Amendment

context” and described the two-step approach as “one step

too many.” 142 S. Ct. at 2127. Following Bruen, “text and

history, not a means-end analysis, now define the controlling

Second Amendment inquiry.” Atkinson v. Garland, 70 F.4th

1018, 1020 (7th Cir. 2023); see Bruen, 142 S. Ct. at 2131

(stating that, although “judicial deference to legislative

interest balancing is understandable—and, elsewhere,

appropriate—it is not deference that the Constitution

demands” under the Second Amendment).

BAIRD V. BONTA 13

Thus, if the Second Amendment’s plain text covers the

regulated conduct, the regulation will stand only if the

government can “affirmatively prove that its firearms

regulation is part of the historical tradition that delimits the

outer bounds of the right to keep and bear arms” in the

United States. Bruen, 142 S. Ct. at 2127. While the

government need not identify a “dead ringer” for its modern

regulation, it must locate a “well-established and

representative historical analogue” that was in effect when

the Second or Fourteenth Amendment was ratified. Id. at

2132–33. To qualify, the analogue must be close: the

historical regulation must have been “relevantly similar” to

the challenged regulation in “how and why” it “burden[ed] a

law-abiding citizen’s right to armed self-defense.” Id. As

the Supreme Court has cautioned, upholding a modern

regulation that only “remotely resembles a historical

analogue” would entail “endorsing outliers that our

ancestors would never have accepted” and thus be

inconsistent with the historical inquiry required by Bruen.

Id. at 2133 (quoting Drummond v. Robinson Twp., 9 F.4th

217, 226 (3d Cir. 2021)).

3. Bruen’s effect on the Winter test for preliminary

injunctions.

We next briefly address the effect of Bruen on Winter’s

four-factor preliminary injunction test. Bruen clarified the

appropriate legal framework to apply when a plaintiff

challenges a statute under the Second Amendment. Bruen

expressly rejected the use of “means-end scrutiny,” 142 S.

Ct. at 2127, and any “interest-balancing inquiry,” id. at 2129

(quoting Heller, 554 U.S. at 634), when assessing a

plaintiff’s likelihood of success on the merits of a Second

Amendment challenge. Thus, Bruen obviously affects the

first Winter factor—the likelihood of success on the merits

14 BAIRD V. BONTA

inquiry in a motion for a preliminary injunction. See

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 429 (2006) (holding that the “burdens

at the preliminary injunction stage track the burdens at

trial”); see also Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).

And under Winter’s well-settled standards—which apply to

Second Amendment claims like any other constitutional

claim—courts consider all of the Winter factors and assess

irreparable harm and the public interest through the prism of

whether or not the plaintiff has shown a likelihood of success

on the merits.

4. The district court abused its discretion when it

skipped any analysis of the first and most

important Winter factor in this case.

Applying these principles to the instant case, we have no

trouble concluding that the district court abused its discretion

when it denied Appellants’ preliminary injunction motion.

A district court that skips analyzing the first Winter factor in

a constitutional case cannot properly evaluate the other

factors.

As noted, the likelihood of success on the merits is a

particularly important consideration in the preliminary

injunction analysis of a constitutional claim, because a

finding that the plaintiff is likely to succeed on the merits of

such a claim sharply tilts in the plaintiff’s favor both the

irreparable harm factor, see Melendres, 695 F.3d at 1002,

and the merged public interest and balance of harms factors,

see Elsasser, 32 F.4th at 731; Zepeda, 753 F.2d at 727.

Consequently, a plaintiff who can show that a statute likely

violates the Constitution will also usually show “that both

the public interest and the balance of the equities favor a

preliminary injunction.” Ariz. Dream Act Coal., 757 F.3d at

BAIRD V. BONTA 15

1069; see also Am. Beverage Ass’n, 916 F.3d at 757–58

(recognizing that a showing of likelihood of success on the

merits of a constitutional claim “compels a finding” that the

balance of hardships and the public interest favor issuance

of a preliminary injunction).

Notwithstanding this settled interplay between the

factors, the district court here declined to undertake any

inquiry into Appellants’ likelihood of success on the merits

of their Second Amendment challenge to sections 25850 and

26350 of the California Penal Code. Instead, it conducted

only a merged analysis of the third and fourth Winter factors

and proceeded to deny the injunction after concluding that,

because the public interest and balance of harms disfavored

the issuance of a preliminary injunction, it was “not

necessary” to assess Appellants’ likelihood of success on the

merits. This was error. In a case presenting a constitutional

claim, it is always necessary for a district court to determine

whether a plaintiff is likely to succeed on the merits, because

of the influence such a finding has on the other Winter

factors. Put otherwise: a district court that skips over

analyzing the first Winter factor where the plaintiff alleges a

constitutional violation cannot properly evaluate the other

factors. See Elsasser, 32 F.4th at 731; Ariz. Dream Act

Coal., 757 F.3d at 1069; Melendres, 695 F.3d at 1002;

Zepeda, 753 F.2d at 727. By denying Appellants’ motion to

enjoin California’s general open-carry ban based solely on

its conclusion that the public interest weighed against

Appellants, the district court thus employed an incorrect

legal standard for the issuance of a preliminary injunction,

and therefore abused its discretion. See Cal. Chamber of

Com., 29 F.4th at 475.

The district court did not cite to any authority from a case

involving a constitutional claim to justify its determination

16 BAIRD V. BONTA

that it was “not necessary” to evaluate Appellants’ likelihood

of success on the merits of their Second Amendment claim.

California attempts to defend the district court’s approach by

offering three cases in which a preliminary injunction

movant alleged a constitutional violation, but none of those

cases in fact supports the district court’s analysis.

Although California is correct that this court said in the

first of those three cases that it “is not enough” to grant a

preliminary injunction if a movant shows only that he is

likely to succeed on the merits, DISH Network Corp. v. FCC,

653 F.3d 771, 776 (9th Cir. 2011), nowhere in that case did

we say that examination of the first Winter factor is

unnecessary in a constitutional case. In DISH Network, the

plaintiff sought to enjoin a statute that it alleged violated the

First Amendment. Id. at 774. The district court “focused

entirely” on whether the plaintiff was likely to succeed on

the merits of its claim and denied the injunction. Id. at 775.

The plaintiff argued “that in the case of a First Amendment

claim, all four of the Winter factors collapse into the merits.”

Id. at 776. Because we agreed with the district court that the

plaintiff had not met its burden on the first factor, however,

we determined that “we need not consider the remaining

three.” Id. at 776–77. We therefore determined that “even

if we were to determine that [the plaintiff] is likely to

succeed on the merits, we would still need to consider

whether it satisfied the remaining elements of the

preliminary injunction test.” Id.

Far from supporting the argument that a court can skip

the first Winter factor in a case presenting a constitutional

claim, DISH Network amplifies the necessity of analyzing

that first factor, as there we affirmed the denial of the

preliminary injunction based only on the plaintiff’s failure to

BAIRD V. BONTA 17

show its likelihood of success. 2 See id. at 776; see also

Disney Enters., 869 F.3d at 856 (stating that a “court need

not consider the other factors” if a plaintiff cannot satisfy the

threshold inquiry of the first factor). But Appellants do not

argue that their likelihood of success on the merits in

isolation is necessarily enough to warrant an injunction; they

argue that the district court erred by failing to assess their

likelihood of success on the merits at all. DISH Network has

no bearing on that argument.

The second case relied on by California serves its

argument no better. In Klein v. City of San Clemente, our

court concluded that the plaintiff had shown a likelihood of

success on the merits of his free speech claim against a

California anti-littering ordinance. See 584 F.3d at 1207. As

California notes, we then stated that the plaintiff “must also

demonstrate that he is likely to suffer irreparable injury in

the absence of a preliminary injunction, and that the balance

of equities and the public interest tip in his favor.” Id. But

in the rest of the same paragraph, we explained that because

the plaintiff had brought a free-speech claim “it is clear that

these requirements are satisfied.” Id. Rather than support

California’s position that analysis of the first factor can be

skipped, Klein––like DISH Network—underscores the

centrality of the first factor in cases involving allegations of

a violation of constitutional rights.

2

In its analysis, DISH Network relied on our earlier precedent, Stormans,

Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). Rather than treat

consideration of the first factor as unnecessary in Stormans, our court

there treated that analysis as a prerequisite to a proper analysis of

irreparable harm and a weighty consideration in the analysis of the public

interest. Id. at 1138–40.

18 BAIRD V. BONTA

The third case that California offers is even less

convincing than the first two. California observes that in

United States v. California our court considered the other

Winter factors even after we concluded that the United States

was likely to prevail on the merits of a Supremacy Clause

challenge. 921 F.3d 865, 894 (9th Cir. 2019). That is true

but unhelpful for California’s position because we said that

in the context of expressly rejecting the argument that a

district court could look only to the latter factors in a

preliminary injunction analysis. See id. (“We are not

prepared, in the first instance, to affirm the district court’s

denial of a preliminary injunction … based on [balance of

equities and public interest] considerations.”). In so

concluding, we again stressed that we presume that a

constitutional violation causes a preliminary injunction

movant irreparable harm and that preventing a constitutional

violation is in the public interest. Id. at 893–94. That is just

another way of stating the interplay of factors we discussed

above, and precedent involving a preliminary injunction for

constitutional violations leaves no room for a proper analysis

of any Winter factor divorced from an analysis of the first

factor. This analysis does not change where the

constitutional violation at issue is a Second Amendment

violation because the right to peaceably bear arms to defend

oneself is not “a second-class right, subject to an entirely

different body of rules than the other Bill of Rights

guarantees.” McDonald, 561 U.S. at 780.

District courts carry heavy case dockets, thus it is

understandable why they may seek to resolve cases on what

may appear a simpler basis. But a court confronted with a

constitutional claim may not, in short, skip over evaluating a

movant’s likelihood of success on that claim when it

adjudicates a preliminary injunction motion. See Elsasser,

BAIRD V. BONTA 19

32 F.4th at 731; Ariz. Dream Act Coal., 757 F.3d at 1069;

Melendres, 695 F.3d at 1002; Zepeda, 753 F.2d at 727.

B. The district court must conduct a proper

preliminary injunction analysis on remand.

This error necessitates reversal and remand. On remand,

the district court must analyze all of the Winter preliminary

injunction factors. We set forth three requirements to guide

the district court’s preliminary injunction analysis on

remand.

First, the district court’s analysis of the first Winter

factor must include consideration of the question whether the

conduct that California’s general open-carry ban regulates is

covered by the text of the Second Amendment. Bruen, 142

S. Ct. at 2129–30. If it is, California bears the burden to

identify a “well-established and representative historical

analogue” to its open-carry ban that was in force when the

Second or Fourteenth Amendment was ratified. Id. at 2130–

31, 2133, 2136–38 (emphasis omitted).

While California does not need to identify a “dead

ringer” for its open-carry ban, id., California cannot satisfy

the requirement for a closely analogous historical regulation

by reference to any general firearm regulation California

might unearth, id. at 2130. Because states in 1791 and 1868

also grappled with general gun violence, California must

provide analogues that are “distinctly similar,” id. at 2131,

to California’s general open-carry ban in “how” and “why”

they curtailed individuals’ right to carry firearms, id. at

2132–33.

Courts in our sister circuits have consistently recognized

that the Bruen standard for identifying a closely analogous

historical regulation is a demanding one. A proper analysis

20 BAIRD V. BONTA

demands “paying close attention to the enforcement and

impact of various regulations.” Atkinson, 70 F.4th at 1022.

So, for instance, postbellum statutes banning the carry of

firearms “while under the influence” were deemed not

analogous to a modern carry ban on “unlawful users” of

intoxicants because “there is a considerable difference

between someone who is actively intoxicated and someone

who is an ‘unlawful user.’” United States v. Daniels, ---

F.4th ---, 2023 WL 5091317, at *8 (5th Cir. Aug. 9, 2023)

(emphasis added). And Founding-era statutes that disarmed

groups of persons who governments thought might be

dangerous because of their race or religion were not

considered analogous to modern carry prohibitions on

released felons also thought to be dangerous: “any such

analogy would be far too broad.” Range v. Att’y Gen., 69

F.4th 96, 103–05 (3d Cir. 2023) (en banc). See also Peruta

v. Cnty. of San Diego, 824 F.3d 919, 941–42 (9th Cir. 2016)

(en banc) (“[E]ven assuming that California’s restrictions on

public open carry violate the Second Amendment … it does

not follow that California’s restrictions on public concealed

carry violate the Amendment.”), abrogated on other

grounds by Bruen, 142 S. Ct. 2111 (2022).

In short, as numerous courts have correctly observed in

applying Bruen, California must identify a historical

analogue that curtails the right to peaceably carry handguns

openly for self-defense to a comparable degree, with a

comparable severity, and with a comparable blanket

enforcement to California’s open-carry ban. See Atkinson,

70 F.4th at 1021–22; Range, 69 F.4th at 105; Daniels, ---

F.4th ---, 2023 WL 5091317, at *8. That is the standard the

district court must apply on remand in analyzing the first

Winter factor.

BAIRD V. BONTA 21

Second, the district court must complete this preliminary

injunction review expeditiously. It has been more than four

years since Appellants first moved for a preliminary

injunction and more than fourteen months since Bruen was

decided. Because even a brief deprivation of a constitutional

right causes irreparable injury, see Cuviello v. City of

Vallejo, 944 F.3d 816, 831–33 (9th Cir. 2019), the district

court must quickly determine whether the Winter factors

favor issuance of a preliminary injunction in this case, and if

so, not “shrink from [its] obligation to enforce [their]

constitutional rights,” Porretti, 11 F.4th at 1047. “Courts

are … entitled to decide a case based on the historical record

compiled by the parties.” Bruen, 142 S. Ct. at 2130 n.6; see

also Sineneng-Smith, 140 S. Ct. at 1579. It is the parties’

duty, not the court’s, to collect and present historic

analogues. 3

In circumstances like this, appellate courts have

sometimes imposed strict deadlines for district courts to

meet in reevaluating a remanded preliminary injunction

motion. See, e.g., Mock v. Garland, 75 F.4th 563, 588 (5th

Cir. 2023) (60 days to issue a ruling); New Hope Family

Servs., Inc. v. Poole, 966 F.3d 145, 184 (2d Cir. 2020) (10

days after issuance of mandate to allow parties to

supplement their initial preliminary injunction filings);

Grace Schs. v. Burwell, 801 F.3d 788, 807–08 (7th Cir.

3

While California initially argued below that Appellants bore the burden

to identify historical analogues at the preliminary injunction stage, the

district court rejected that argument, correctly assuming in its

preliminary injunction order that “the state bears the burden to show … it

is consistent with the Nation’s historical tradition of firearm regulation.”

See Cal. Chamber of Com., 29 F.4th at 477–78. And California did not

dispute that it bears that burden when pressed at oral argument before

this court.

22 BAIRD V. BONTA

2015) (preliminary injunction to be vacated 60 days after

remand unless district court rules by then on alternative

arguments for granting it), judgment vacated on other

grounds, 578 U.S. 969 (2016) (mem). Here, however, we

have confidence that the district court on remand will swiftly

reevaluate the preliminary injunction without the need for a

specific deadline. We therefore follow our court’s practice

of simply instructing the district court to expeditiously

decide the preliminary injunction motion on remand. See,

e.g., Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d

1228, 1234 (9th Cir. 2020); Toyo Tire Holdings of Am. Inc.

v. Cont’l Tire N. Am., Inc., 609 F.3d 975, 982 (9th Cir. 2010).

Third, if the district court determines that Appellants

showed that they are likely to succeed on the merits of their

claim, the district court must account for the impact that

determination has on the remaining Winter factors when it

analyzes each of them. This means recognizing that, in cases

involving a constitutional claim, a likelihood of success on

the merits usually establishes irreparable harm, Melendres,

695 F.3d at 1002, and strongly tips the balance of equities

and public interest in favor of granting a preliminary

injunction, Elsasser, 32 F.4th at 731.

CONCLUSION

We reverse the denial of a preliminary injunction if it

resulted from an abuse of discretion. Olson, 62 F.4th at

1218. Here, by declining to assess Appellants’ likelihood of

success on the merits of their Second Amendment claim, the

district court abused its discretion by failing to apply the

proper preliminary injunction standard for a case raising a

constitutional challenge. See Cal. Chamber of Com., 29

F.4th at 475. We therefore reverse and remand.

Recognizing that the preliminary injunction proceedings in

BAIRD V. BONTA 23

this case have been ongoing for more than four years, we

instruct the district court to complete its reevaluation of the

requested preliminary injunction and issue a decision

expeditiously.

REVERSED AND REMANDED.