The opinions of several Ninth Circuit judges on the Second Amendment, urging (though unsuccessfully) an en banc rehearing on the individual/collective rights question, are here. The Tenth Circuit decision from a couple of weeks ago that followed the Tenth Circuit’s prior collective rights caselaw, though with one judge expressing an opinion more open to the individual rights view, is here.
The collective rights view is certainly the dominant view in the court of appeals — only the Fifth Circuit has endorsed the individual rights view. Still, is enheartening to see quite a few circuit judges in various circuits reaffirming that view; it makes the odds a little better (though still impossible to calculate) should the Supreme Court get the issue in the next few years, likely as to the challenges to the D.C. gun ban. In close cases, Justices are indeed influenced by what they see as the mainstream of judicial opinion. If it had looked like all judges except two on the Fifth Circuit endorsed the collective rights view, some of the Justices would have probably taken the individual rights view less seriously. But if many respected dissenting judges, both liberal and conservative, in various circuits endorse the individual rights view, at least some Justices are more likely to be open to it, even if the circuit bottom-line scorecard still reads 8-1 or something along those lines. Thanks to How Appealing for the pointer.
I’m also pleased to report that, among many other sources, Judge Gould’s dissent cites The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).
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