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Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second Amendment Gun Show Case:

The parties have been asked to file briefs within 21 days of yesterday on whether en banc review is warranted. After that, it would take a majority vote of all 27 active Ninth Circuit judges to vacate the panel decision, and thus cause a rehearing by a 11-judge subset of the Ninth Circuit (Chief Judge Alex Kozinski plus ten randomly drawn judges).

Unless I'm mistaken, the en banc review procedure in the Ninth Circuit is all or nothing: Though there are two conceptually separable issues in the case -- whether the Second Amendment is incorporated against state and local governments (on which the gun shows won), and whether under the Second Amendment governments may ban guns in county fairgrounds (on which the gun shows lost) -- a judge can't vote for en banc review of only one of the issues.

I tentatively stand by my prediction from last month as to the likelihood of en banc review:

I expect that rehearing en banc isn't very likely. First, such en banc review is always hard to get. Second, here at least two of the Democrat-appointed judges — Pregerson and Gould — have expressed their views that the right to bear arms should indeed be incorporated, Gould both here and in the Silveira v. Lockyer case, and Pregerson in Silveira. (Two other Democrat-appointed judges, Reinhardt and Fisher, stated in Silveira that "One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"; but those judges also took the view that the Second Amendment only secured a collective right, and it's not clear whether they would reconsider their position now, following Heller.) Three Republican-appointed judges, Kozinski, O'Scannlain, and Kleinfeld, are likewise on the record as supporting incorporation.

For there to be a majority — 14 of the 27 active judges — for taking the case en banc, all of the 16 Democrat-appointed Ninth Circuit judges other than Pregerson and Gould would have to vote for en banc, or each Democrat-appointed defector would have to be balanced by a Republican-appointed vote for en banc. That's not impossible; some conservatives do indeed support gun controls, just as some liberals support gun rights. But it doesn't seem very likely. (Judge Alarcon, as a senior judge, can't vote on the en banc.)

The Ninth Circuit doesn't reveal the identities of judges who call for en banc, or the identities of those who vote for or against en banc (except insofar as they may identifying themselves in any written opinions dissenting from the denial of en banc or supporting the denial of en banc).

ShelbyC:
I don't know the answer to this, so this is a genuine question, but you seem to be using support for incorporation as a proxy for support for denial en banc review. Is it possible that some folks who support incorporation would vote for en banc to reconsider the issue of whether the 2nd protects gun shows at fairgrounds?
5.19.2009 8:05pm
Kazinski:
I don't think there is much of an issue to decide about "whether the 2nd protects gun shows at fairgrounds". Consider if the county decided to disallow political conventions at the county convention center because of the cost of police protection. As long as they banned all political conventions regardless of viewpoint they would be upheld. Same as if they banned all religious convocations regardless of denomination, or rock concerts regardless of the band. As long as they ban all gun shows regardless of gun type, I'd think they'd be on solid ground.
5.19.2009 8:20pm
CurlyDave (mail):
A small quibble:
...whether the Second Amendment is incorporated against state and local governments (on which the gun shows won)....

The gun shows did not win on this issue. The NRA and gun rights supporters won, but the gun shows have no RKBA, and can not "win".

OTOH by supporting en banc review they can alienate their customers.
5.19.2009 8:33pm
PubliusFL:
Kazinski: Same as if they banned all religious convocations regardless of denomination

Do you really think that'd be upheld? Public support can't be denied to religious events solely on the basis that they are religious, when the events are otherwise similar to those for which support is provided. See, for example, myriads of cases over the past several years about funding for religious clubs at public educational institutions.
5.19.2009 8:35pm
cboldt (mail):
-- As long as they ban all gun shows regardless of gun type, I'd think they'd be on solid ground --
.
The statute at issue has an exception, which was added to permit period re-enactments. Otherwise, possession of guns and ammunition is prohibited on county property. The Ninth Circuit's reasoning regarding the difference between a period re-enactment and a gun show is ...
Nordykes have not argued that they could meet the exception's requirement that firearms be secured whenever an authorized participant is not actually using them. No wonder. They have admitted that the very nature of gun shows, in which vendors show weapons to prospective buyers and admirers, makes it impossible.
We conclude that the Nordykes are not situated similarly to the Scottish Games in that they cannot meet the safety requirements of the exception.
5.19.2009 9:16pm
George Mocsary (mail):
I would like to see some teeth put into the "bear" portion of the Amendment. Whether bear means "carry" (the more plausible explanation) or "use," the Second is still significantly crippled if it only applies in one's home. Overturning the ban on public property would be an opportunity to give some real meaning to "bear." After all, the tyranny concerns behind the adoption of the Amendment wouldn't be addressed if arms could only be borne in the home. This is especially the case if "bear" is construed to have a military connotation - it's tough for individuals to exercise anything looking military in their homes. (Of course, this latter point is purely academic after Heller.)
5.19.2009 10:08pm
David Schwartz (mail):
Do you think judges reason tactically when deciding whether to vote for a rehearing en banc? Does a judge think "this case has at least one important issue that I think may have been decided incorrectly, I vote yes". Or might a judge think, "I think they got minor issue X wrong, but they got major issue Y right. I won't risk a rehearing en banc"?
5.19.2009 10:26pm
J. Aldridge:
"One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"

Are they basing this on Emerson? I thought Emerson had nothing to do with state action (non-Fourteenth issue) if they are.
5.19.2009 11:32pm
Repeal 16-17 (mail):
The quoted material was about how back in the days when Cruikshank and Presser were decided, the SCOTUS looked at the issue as whether all of the Bill of Rights should be applied to the States ("total incorporation"). Now the SCOTUS simply looks at the particular part of the Bill of Rights at issue in that case ("selective incorporation").
5.19.2009 11:43pm
Dave N (mail):
I suspect the en banc process at the Ninth is a lot like making sausage: you really don't like to see how it happens.

Although I don't have an use for Judge Reinhardt about 99% of the time, he had some interesting comments on the topic at hand in his dissent from the denial of rehearing en banc in Cooper v. Brown (page 105 of the PDF and page 5533 of the 9th Circuit's numbering system):
I have on numerous occasions urged that we disclose the names of judges who vote for and against rehearing cases en banc. Here, once again, the vote is extremely close, closer than the list of dissenters would suggest. I believe that as judges we have an obligation to let the public know how we vote on critical issues. The public, the legal academy, our colleagues on other courts, and appointing authorities have a right to judge us based on our performance on the bench. In this case, in particular, I believe that public disclosure is important. Revealing how we voted would provide information that would be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted.
(citations omitted)

For those interested in death penalty litigation, the rest of the various opinions are also interesting--maybe a sign of the ideological shift on the 9th Circuit in recent years.

Also, if you are counting judges based on which President appointed him or her, Judge Tallman is a Republican appointed by President Clinton as part of a political deal.
5.19.2009 11:58pm
In the Hat:
EV, you are correct re all or nothing on en banc in CA9. Do you still have costume parties for Halloween?
5.20.2009 1:08am
Roger Ford (mail):
I thought that en banc panels in the Ninth Circuit were 15 judges now, not 11.
5.20.2009 7:58am
MichaelAE (mail):

"They have admitted that the very nature of gun shows, in which vendors show weapons to prospective buyers and admirers, makes it impossible."


Why couldn't visitors to a gun show "event", who have paid an entry fee and signed a safe gun handling form, be considered an "authorized participant" and meet the exemption?
5.20.2009 12:52pm
Clayton E. Cramer (mail) (www):

Why couldn't visitors to a gun show "event", who have paid an entry fee and signed a safe gun handling form, be considered an "authorized participant" and meet the exemption?
The exemption that Alameda County wrote for the Scottish Games can be applied to another living history event. "We're recreating an important part of the heritage of 1980s Californians--gun shows! Everyone here is engaged in living history."
5.20.2009 1:48pm
CDR D (mail):
I imagine the call for en banc review is because of objection to the incorporation language. I'd be very surprised if it were in support of Nordyke.

As to the gun show event at the fairgrounds, since "safety" is the county's excuse for the ordinance, I can't see why they couldn't just outlaw possession of ammunition of any kind at the show and allow the show to go on. But "safety" isn't the driving force. It's the message.
5.20.2009 7:23pm
Andrew Hyman (mail) (www):
I do not understand the enthsiasm of judges nowadays to condemn the Cruikshank decision. Cruikshank involved a federal prosecution of private citizens (i.e. members of a white mob) who had prevented armed black citizens from peacably assembling in a manner that was lawful under both state and federal law. The Cruikshank Court correctly said that there was no state action, and therefore no violation of due process under the Fourteenth Amendment.

It is axiomatic that the Due Process Clause of the Fourteenth Amendment only restricts state action (e.g. see Deshaney v. Winnegabo County Social Service Department, 489 U.S. 189 (1989)). Given the fact that there was no state action in Cruikshank, the Court was correct to unanimously say that the only way the federal government could have intervened would have been if the assembly had been for the purpose of petitioning Congress.

It is unclear how Cruikshank would have been decided if there had been state action. Professor David Rabban has observed that, "[t]he Court never specified whether the First Amendment contains 'fundamental rights' protected by the Fourteenth Amendment against state action," and Rabban's astute observation applies not just to the First Amendment but also to the Second. Cruikshank should not be overturned, it is no obstacle to incorporating a right to keep and bear arms into the Fourteenth Amendment, it is a correct precedent, and the Court continues to rely on it as such (e.g. see United States v. Morrison, 529 U.S. 598 (2000)).

Presser is a great decision too, IMHO. It ruled out due process incorporation of the right to keep and bear arms, but left the door open for incorporating into the Privileges or Immunities Clause a right to home possession or arms.
5.21.2009 10:45am
CDR D (mail):
Andrew,

Maybe if *Cruickshank* had said, "This is one of the amendments that has no other effect than to restrict the powers of the National [and, in view of the 14th amendment, the States'] government[s], leaving the people to look for their protection against any violation by their fellow-citizens....[etc]... it would be cool.

But it plainly stated that the right meant "no more than it shall not be infringed by Congress."
5.21.2009 7:17pm
Andrew Hyman (mail) (www):
The Ninth Circuit correctly said the following in Nordyke v. King: "the Second Amendment does not apply directly to the states." In other words, the Second Amendment means no more than that it shall not be infringed by Congress, as the Court said in Cruikshank. That statement in Cruikshank was a correct response to counts of the indictment that did not mention the Fourteenth Amendment.
5.22.2009 3:18pm
CDR D (mail):
Seems to me the Ninth Circuit "correctly" said that because they were foreclosed from stating otherwise under the "privileges and immunities" clause.

They went on and relied on the "due process" clause.

As for the Cruickshank decision, nothing was changed in Nordyke wrt to private party infringement.

Bottom line? Looks to me like it does mean a little more than ... "means no more than ... by Congress."

At least for the time being.
5.22.2009 6:52pm
Andrew Hyman (mail) (www):
The Ninth Circuit panel said this in Nordyke:

"There are three doctrinal ways the Second Amendment might apply to the states: (1) direct application; (2) incorporation by the Privileges or Immunities Clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the same amendment."


The Ninth Circuit panel rejected (1). And SCOTUS did likewise in Cruikshank: "The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress." That's 100% correct.
5.24.2009 4:04pm

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