FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK BAIRD AND RICHARD 

GALLARDO, 

Plaintiffs-Appellants, 

 v. 

ROB BONTA, in his official capacity 

as Attorney General of the State of 

California, 

Defendant-Appellee.

No. 23-15016 

D.C. No. 2:19-cv00617-KJM-AC

OPINION

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 wellestablished 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 opencarry 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 selfdefense 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.