Right to Carry Guns in Public Headed for Ninth Circuit En Banc

A panel decision had said there is such a right to carry (though the state can decide whether people must carry openly or may carry concealed); the Ninth Circuit has just agreed to rehear the matter with an 11-judge panel.


For more on the panel decision from last Summer, see here. The panel will include the Chief Judge Sidney R. Thomas, plus 10 randomly selected judges; those judges must come from either the roster of active judges, or of the senior judges who served on the panel, if they want to be eligible for the en banc (in this instance, Judge O'Scannlain and Judge Clifton). En bancs in most circuits include the entire court, but because the Ninth Circuit is so large, its en banc panels include only 11 judges.)

To the extent such things are relevant, the Ninth Circuit has 23 active judges, of whom 7 are Republican appointees and 16 (including Chief Judge Thomas) are Democratic appointees. At the same time, note that Judge Clifton, while a Republican appointee, voted against right-to-carry on the panel; and some Democratic-appointed judges on the Ninth Circuit endorsed an individual rights view of the Second Amendment even before D.C. v. Heller, though that doesn't say what they think of carrying outside the home.

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  1. It should not be legal for a State to ban open carry unless concealed carry requires no permits, fees, fingerprinting, etc.

    Otherwise you’re just hiding behind a tax to exercise a basic Constitutional right, which cannot possibly be legal.

    1. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

      There are no exceptions to the people’s right to keep and bear Arms. No background checks. No permit requirements. No fingerprinting. No bans. No limits on ammo or guns. No waiting periods. NO nothing that would infringe on the right to keep and bear Armaments.

      1. Yikes. Please don’t go out in public with the claim that the 2A mandates that convicted violent felons be allowed to bear arms. It makes the rest of us look like loonies by association.

        1. You know most states either automatically give felons their gun rights back after their probation is over, or offer a procedure for restoring rights don’t ya?

          Only certain violent/serious crimes tend to be an exception to this.

          1. You know that doesn’t matter because of 18USC922.

            I don’t have a problem with a procedure for restoring gun/voting rights for convicted felons. But that’s a matter of policy, not a matter of what the 2A requires.

            1. Felons can be denied voting rights only because the 14th Amendment explicitly allows this. There is no equivalent clause for denying gun rights in the Constitution (unless it’s in the FYTW section).

              And if it’s legitimate to deny gun rights to convicted felons, then it’s also legit to deny them the protections of the rest of the Bill of Rights – legit to deny felons free speech rights, religious rights, rights not to be subject to arbitrary searches, rights to a jury trial if accused of any further crimes, rights not to have confessions tortured out of them if accused of any further crimes…

              In an alternate universe where Justice Thomas actually asked questions at oral argument, he might even raise the issue.

              Also, even if State laws could legitimately deny gun rights to those convicted of State felonies, 18USC922 still raises some serious federalism questions, just as if it would raise some serious federalism questions for the Federal government to ban felons from voting.

              1. +100 Deep Lurker

              2. legit to deny felons free speech rights, religious rights, rights not to be subject to arbitrary searches

                We have all that. It’s called prison. It turns out that felons can be sentenced to any period (including natural life) of deprivation of all those rights.

                The fact that the State can (after a trial with due process) imprison you for 10 years and take your guns for 100 years is a lesser included power of the State to imprison you and take your guns for 100 years.

            2. 18USC922 does not trump the 2nd Amendment.

              Once felons have completed their sentences and are out of state control, the government has no authority to violate the right of the people to keep and bear Arms.

            3. Yeah, well it’s a matter of policy just like every other law we have on the books that violates the constitution as far as I’m concerned.

        2. If you think giving Americans the maximum ability to keep and bear Arms makes one look like a looney…

          You’re not on the side of gun rights anyway and probably a hidden gun grabber. Gun grabber are the loonies who don’t want people to be able to protect themselves and also want to prep America for government to easily take total control.

          1. It does. And it makes more people side with the grabbers because prohibiting those convicted of violent offenses from owning guns is a sensible policy that is ratified by centuries of history.

  2. Chief Judge Sidney R. Thomas is hostile to the Second Amendment. So we need 6 of the random 10.

    Or 5 out of 9 in the Supreme Court.

    1. KevinP – Could you cite the cases which show that Chief Judge Thomas is hostile to the Second Amendment? If your citations are to Peruta then you need to reread the Heller and McDonald decisions.

      The Peruta decision was limited to concealed carry and prohibitions on concealed carry appear first on the list of permissible regulations listed in the Heller decision, ahead of prohibitions on the possession of firearms by felons and the mentally ill.

    2. The 9th Circuit should have been broken up into two or more smaller Circuits, decades ago.

  3. Eugene: A question: Can the new en banc panel overrule the earlier precedent set by the Peruta v. County of San Diego en banc panel?

    1. Yes, but a single panel cannot.

  4. Unbelievable. Ever since McDonald, every time a 3 judge panel has been positive for gun rights, the 9th Circuit has en banced. Such bad faith.

    1. That’s how the majority of the 9th Circuit judges keep the pro-Constitution judges in line.

      1. It is as if there is so much hostility against private gun ownership in the federal judiciary.

        There was not this much hostility against racial integration in public schools. Various states and school districts pulled tricks to preserve segregation after 1954, and each time, the courts unanimously overturned these attempts at preserving segregation.

        What is happening now is like courts upholding segregated classrooms or segregated sports teams.

        1. There is no excuse for denying the People the right to keep and bear Arms. The 2A is listed.

          There is no excuse for denying the People their Privileges and Immunities, Due Process, and Equal Protection rights. The 14A is listed.

  5. I wish liberal judges would spend as much time defending the right to keep and bear arms as they do the judicially created “rights” to shove a needle into a baby’s’ brain and shove a penis into another man’s butt.

    1. Well, those two latter “rights” (your scare quotes) appear in the Living Constitution, while the first appears only in the Dead Constitution. Since we generally prioritize the living over the dead (as well as preferring living to being dead), why should we treat constitutions any differently?

      (That said, why should a government at any level care who sticks what into whatever? Especially if all parties involved are consenting adults doing so privately. This doens’t mean that anyone else should be required to approve of or celebrate such an arrangement, however.)

      1. “Dead Constitution”…..that is a new phrase I haven’t heard in common parlance among the left…yet.

        If the Constitution is Living though it can probably do away with BS decisions such as Roe, right? And as long as 5 justices agree they can read in whatever policy they want into our “rights”, correct?

        Or does the Living Constitution only work if it is used as a vehicle for left wing policies?

        1. That last one I’m sure… Double standards and all that.

    2. I get that the right to “shove a penis into another man’s butt” indicates some weird closeted fantasies, but what does the right to “shove a needle into a baby’s’ brain” indicate?

      You should auction off psychoanalysis sessions. You could get rich enough to act out these fantasies.

      1. ARWP is proof that all comments should be unmoderated. To be honest, I think Reason should hire him to write entire articles. The man is the Shakespeare of commenting.

    3. “shove a penis into another man’s butt”

      Well, have you ever tried to shove your penis into your /own/ butt? It ain’t easy (or so I’ve heard).

      And while we’re on the subject, why do you never opine on “shoving a penis into a woman’s butt?” I’d think the same principle would apply.

      1. The difference is that while some gross heterosexual couples do do it, it’s not central to their identity the way it is for gay men. That’s why gay men are 75% of HIV cases.

        1. “central to their identity”??

          I think I’m beginning to see the core of your problem, ARWP. Sex is NOT the be-all and end-all of human existence and self-identity. It is, in fact, a relatively minor part of our lives and overall identity. Stop being so all-consumed and obsessive about another individual’s sexual preferences, acts,and practices, and focus instead on the important stuff – his or her (or its, in the case of those unwilling to make a choice and stick with it) intellectual achievements, his or her moral choices in dealing with society at large, his or her contributions, for good or ill, to human advancement and happiness. Then maybe we won’t have to read so many of your comments which include the phrase “butt sex.” That way lies personal growth.

  6. Supreme Court precedent seems at least to imply a right to carry openly where a demonstrable reason exists, for example, where someone has been threatened by another and arms himself for self-protection.

    These cases are NOT Second-Amendment cases but arose under claims of self-defense.

    1. Supreme Court precedent actually doesn’t require a demonstrable reason. Not sure where you pulled that out of. Heller didn’t say it.

    2. “You Don’t Get to Pick the Day You Need Your Gun. Someone else will pick that day and they will only tell you at the last minute.”

      A quote from THIS very blog, February 6, 2019.

  7. At least even if the en banc reverses there is still a circuit split, so the Supreme Court still has a golden opportunity to set it right.

    Still I hope when SCOTUS hears the NY City case on prohibition of taking your gun outside the city, they do nothing more than clearly define the level of scrutiny, and makes it clear that general restrictions on carrying guns can never meet that level of scrutiny, then they can just reverse and remand all the cases like this and tell them to get it right and get their circuits in line.

    Just a note to Judges, if you are concerned about the spread of Trumpism, and really want to knock the legs out under it, then you couldn’t find a more effective way than to respect the peoples constitutional rights, especially the right to keep and bear arms. There is nothing more likely to make people say the hell with it and voting for the loudest most bombastic voice, than the powers that be, like California and NY, and the 3rd and 9th circuits basically saying “I don’t care what the constitution and Heller said, I don’t like people carrying guns.” As long as I see judges doing that, I’m going to vote for the person I think will appoint the most conservative judges possible, exclusive to any other consideration. That’s how you got Trump.

  8. “because the Ninth Circuit is so large”

    How large is it?

    “its en banc panels include only 11 judges”

    That joke needs some work before I take it on the comedy circuit.

    1. There are currently about 6 openings on the 9th Circus. Time for Trump to pack that Court.

      1. If both parties would credibly agree to abolish the Home State Senator rule, that would be a good thing. We’d end up with a more balanced set of CAs rather than the 9CA and 5CA dueling it out from opposite sides of the spectrum.

      2. That’s not packing the court.

  9. Scrolling through the recent posts on this blog leads me to conclude I missed the calendar reminder telling me it’s firearm advocacy month. Is this still a blog of law professors, or is it just a straight issue advocacy blog like most of the internet?

    “At the same time, note that Judge Clifton, while a Republican appointee, voted against right-to-carry on the panel; and some Democratic-appointed judges on the Ninth Circuit endorsed an individual rights view of the Second Amendment even before D.C. v. Heller, though that doesn’t say what they think of carrying outside the home.”

    Voted against right-to-carry? Who needs a doctorate of jurisprudence when it’s all just roll-call votes.

    1. “firearm advocacy month”

      To be fair, February is the shortest month of the year.

      1. Is that why it is also black history month?

        1. They could have just made it black history day, and talked about peanut butter and that broad on the bus… Since that’s most of what there is to cover… But they figured that would be insulting, so they gave it a full month, even if it is the shortest!

          1. Would you honestly consign to the dust bin of history such names and events as Crispus Attucks, Frederick Douglas, Hiram Rhodes Revels and the fight in the Senate over whether he met the citizenship qualification to be a U.S. Senator, A. Phillip Randolph and the Brotherhood of Sleeping Car Porters, the Tuskegee Airmen, Jackie Robinson, and a host of others? Your dismissive attitude to black history is really sad.

            1. I was obviously exaggerating a little bit… But the truth is, there just ain’t a lot there of interest. Not compared to basically every other bit of geography on earth, and/or ethno-racial group.

              We’ve pumped up random small events into being big deals because we want to give some sort of story to a minority group we’ve had in our midst for longer than any other.

              Try covering ALL European history including such small and peripheral events, and you’ll have literally 100 years worth of classes before you could come close. The same for East Asia, North Africa/The Middle East, hell even pre-Columbian South and Central America.

              Africa is mainly interesting for early human evolution, and its plant and animal life. It’s not that they don’t have cultures there, but they just never did anything as impressive as building the Great Pyramids, Parthenon, Great Wall Of China, etc.

              PC dogma says we’re not allowed to be honest about this, but it’s the same thing I’d say about North American Indians… And I AM Indian, AND I think South American Indians who were racially the same-ish were far more interesting. Sub Saharan Africa just never really did much.

              It’s all very mean to say this… But it’s also true.

              1. The last great technological development to come out of sub-Saharan Africa was the pointy stick. There, I said it.

    2. “Voted against right-to-carry? Who needs a doctorate of jurisprudence when it’s all just roll-call votes.”

      Sigh. Another commenter mistaking his ignorance for cleverness.

  10. So, how exactly is this random selection for the en bank panel accomplished? I recall that the DC circuit had a scandal years ago, where ‘random’ judge assignments were being rigged to make sure that a particular clique of judges always got the politically charged cases, so they could make sure of the “right” outcome.

    It would not be terribly shocking if the Ninth Circuit were doing the same with en bank assignments for 2nd amendment cases.

    1. Once a birther, always a goober.

      1. Seriously, it doesn’t get a lot of press, but there have been low level scandals about “random” judge assignment not really being random, but instead gamed by some of the circuits to make sure the “right” judges got cases on particular subjects.

        So it seems reasonable to ask exactly how the supposedly “random” assignments to en banc panels are accomplished. Apparently there’s a distinct lack of transparency in that regard, which leaves open the possibility that the selection of the panels isn’t random at all.

        But instead curated to achieve particular outcomes on particular topics.

        1. A good question. Because it is 110% plausible that the selection process is bullshit, unless it is something that is explicitly almost impossible to fake.

          1. This is from the 9th Circuit’s published rules:

            “Designation of Court Calendars. Under the direction of the Court, the Clerk sets the time and place of court calendars, taking into account, for at least six months in advance, the availability of judges, the number of cases to be calendared, and the places of hearing required or contemplated by statute or policy. The random assignment of judges by computer to particular days or weeks on the calendars is intended to equalize the workload among the judges. At the time of assigning judges to panels, the Clerk does not know which cases ultimately will be allocated to each of the panels.”


            “Selection of Panels. The Clerk of Court sets the time and place of the calendars. The Clerk utilizes a matrix composed of all active judges and those senior judges who have indicated their availability. The aim is to enable each active judge to sit with every other active and senior judge approximately the same number of times over a two-year period and to assign active judges an equal number of times to each of the locations at which the Court holds hearings.”

            1. I’d be more comfortable if they were using a cage and ball system like for bingo, rather than a computer.

              Too easy to program a computer to do one thing, while pretending it’s doing another.

              1. So the computer ‘randomly’ assigns judges to particular days.
                Then the Clerk assigns the judges for that day into panels, ‘without knowing’ the case.

                Who assigns the cases to the panels?
                I still see plenty of room for manipulation.

                1. That was my thought. Okay, you know what judges are working what days… So you pick the panel for the case. Pretty easy to game that if that process isn’t controlled.

    2. The en banc panels are chosen using a spinning box containing wooden balls with the judges names on them, similar to a bingo spinner. I can’t tell you the Nevada Gaming Commission checks the balance on the balls or anything, but that’s the process.

      1. Ah, I see it’s the old, “two sets of balls with judges names on them with one set slightly larger than the other” trick.

  11. Supposedly, oral arguments and a decision are at least a year away. When it comes to gun cases, the courts move glacially slow (it’s now been 11 years since Heller), while when a federal judge rules that homosexuals are entitled to “marry,” they get their “marriage” licenses the next day.

  12. When who appointed which judges on the selected panel is known – predicting the outcome is a simple matter of math. If, as almost certain, progressive appointees are in the majority, the opinion will not be written (much less released) until the most strategic moment vis-a-vis the Supreme Court.

  13. I hear arguments are set for March 25th, only 6 weeks from now. That must be some kind of record. One wonders what the rush is.

    1. Could be the progressives think most strategic moment is to beat the SC to the punch.

      1. It’s too late to avoid a circuit split (Wrenn- DC is now shall issue). The 3rd circuit carry case is now a cert petition before the SCT, and the old 3rd circuit petition (Drake v Filko) was one of the worst.

        The timeline does not even give much of a chance for additional amicus briefs. 9th is either in a hurry to give all the reasons Wrenn was wrong, or in a hurry to say HI must allow some form of carry and carve out the rules, and put down a marker before the Roberts courts steps in. Time will tell which it is.

    2. If it’s a record, it would only be by two days, since Lulac v. Wheeler’s EBO was issued February 6, and scheduled for the same week.

      They’re just filling out the calendar while everyone has made themselves available to be in San Francisco. The case is already briefed, and the Court hasn’t asked for any additional briefing, so there’s plenty of time.

  14. Send it on up to the supremes! I’m not terribly worried about it anymore… But I guess if they drag their feet a bit, RBG might kick the bucket and it’ll be even more on lock down 🙂

    1. One can hope!

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