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.