Posted by Eugene Volokh:
Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second
Amendment Gun Show Case:
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242774777
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 [1]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).
References
1. http://caselaw.lp.findlaw.com/data2/circs/9th/0115098p.pdf
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