The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last month, I blogged a post with the title, The Ninth Circuit and the right to carry guns: Good-bye Peruta, hello Richards and Baker. As that post noted, in February, a three-judge Ninth Circuit panel held (in Peruta v. County of San Diego (9th Cir. Feb. 3, 2014)) that the Second Amendment secures a right to carry guns in many public places, and not just to possess guns at home. Naturally, this has been quite controversial, but the San Diego County defendants decided not to ask the Ninth Circuit to rehear the case en banc (i.e., by an 11-judge panel). And the day I posted the post, the original panel refused to allow California, the Brady Campaign, and a couple of other groups to intervene in the case in order to petition for rehearing.
I concluded that, as a practical matter, this procedural action in Peruta probably doesn't mean much, because the same issue has been raised in Baker v. Kealoha, which challenges Honolulu's restrictive licensing scheme, and in Richards v. Prieto, which challenges the Yolo County (California) scheme. The panel held in plaintiffs' favor in those cases, citing Peruta, and those defendants did file en banc rehearing petitions. I thought that the Ninth Circuit would turn to those petitions instead of Peruta.
But it turns out that the procedural action in Peruta meant even less, because at least one judge has called for en banc rehearing in that case, even without a petition for rehearing filed by one of the parties. The Ninth Circuit therefore asked on Wednesday for briefing on whether en banc rehearing should be granted. (The Ninth Circuit also called Wednesday for a response to the state's and the Brady Campaign's petition to rehear the panel's decision not to allow intervention; but as I read the orders, that's a separate matter—the judge's call for rehearing was as to the Second Amendment questions in the original panel opinion.)
This sort of "sua sponte" call for rehearing en banc, even without a petition, is a pretty well-settled procedure, though not one that's often used. Opinions of three-judge panels in the Ninth Circuit are binding on all future three-judge panels, and can only be reversed by en banc rehearing (or, of course, by the Supreme Court). As a result, even if the parties are content with the result of an opinion, and don't seek rehearing, each judge has his own interest in the precedents set by his colleagues. Judges are therefore allowed to seek en banc rehearing (which will be granted if a majority of active judges agree to rehear the case), regardless of whether the parties file petitions for such rehearing.
I'm still a bit surprised that the court sought such briefing in Peruta, when it could have just heard the Yolo County or Honolulu petitions, which raise the same issues. If any experienced Ninth Circuit appellate lawyers can shed light on this, I'd love to hear it. But in any event, one way or the other the Ninth Circuit will be considering whether to take the Second Amendment right-to-carry issue en banc, apparently in all three cases: Peruta, Richards, and Baker.
Thanks to Beau Sterling for the pointer.