Gun Show Second Amendment Case Remanded Back to Original Panel — Gun Show Organizers Unlikely to Win There

[UPDATE: For a new development that suggests that the panel might indeed change its mind, and the gun show organizers might indeed win, see this post.]

In early 2009, a 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled (in Nordyke v. King) that the Second Amendment was applicable to state and local governments. But the panel also ruled that a county ban on gun possession in county parks and fairgrounds was constitutional, because such property fell within the “sensitive places” exception to Second Amendment protection (announced by the Supreme Court D.C. v. Heller). Not long after, the Ninth Circuit agreed to rehear the case using an 11-judge en banc panel, and then put the case on hold pending the Supreme Court’s consideration of whether the Second Amendment was indeed applicable to state and local governments.

Today, the Ninth Circuit sent the case back to the original 3-judge panel, instructing the panel to consider it further “in light of McDonald v. City of Chicago.” But since the Supreme Court in McDonald v. City of Chicago (1) agreed with the panel that the Second Amendment was indeed applicable to state and local governments, and (2) did not opine on the scope of the “sensitive places” exception, I’d expect that the Ninth Circuit panel would just reaffirm its original decision. The gun show organizers will therefore likely lose, as they lost originally.

For my limited views on restrictions of gun possession on government property, see PDF pp. 87-91 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.

UPDATE: I originally said in the title that this was “a bad sign for the gun show,” but on reflection I see this is ambiguous, since the question is “bad compared to what?” For the reasons I gave above, I doubt that the gun show organizers will win on remand, so it’s bad compared to the en banc court’s considering the issue afresh (where the chances of victory for the gun show organizers would still be low, but higher than with the panel before which they had already lost). But I suppose it’s good compared to the en banc court’s just affirming the panel. So I changed the title to simply say that the gun show organizers are unlikely to win (a predictive judgment, not a normative judgment about what ought to happen).

FURTHER UPDATE: A couple of people asked why, if my analysis is right, the 11-judge en banc panel didn’t just affirm the 3-judge panel. Here’s my thinking: An affirmance would be a decision on the merits by the 11-judge panel. It would require each judge to take the time and effort to seriously confront the questions; if at least one of the eleven judges disagrees with the panel, then the judge might feel obligated to write a dissent, and the other judges would have to respond. Some judges might feel the need to write separate concurrences as well. This would involve a considerable investment of time on the judges’ part, even given the time they already took to read the briefs and have the oral argument.

Nor is this time and effort something to which the litigants are entitled. Normally, litigants in the Ninth Circuit are only entitled to have their arguments considered by a 3-judge panel. I suspect that this case was taken en banc solely because of the incorporation question, which enough judges thought merited review by an 11-judge panel. But now that the incorporation question has been resolved by the Supreme Court, it seems a sensible use of judicial resources for the court to return the case to the original three judges, without any judgment on the merits by the eleven judges. And that’s what the en banc court. Or so it seems to me.