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).
Related Posts (on one page):
- Ninth Circuit Will Rehear Nordyke v. King En Banc:
- Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second Amendment Gun Show Case:
- What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?
- Why the Gun Show Organizers Nonetheless Lost their Case,
- Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:
- Second Amendment Incorporated by Ninth Circuit Panel, in