The Volokh Conspiracy

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Will the En Banc 9th Circuit Extend the Second Amendment's Losing Streak to 51 Cases?

Not only did Judge VanDyke write a majority opinion, he wrote a draft fauxpinion reversing himself!


Heller was decided in 2008. Two years later, McDonald incorporated the Second Amendment. In the past thirteen years, the Second Amendment has had barely any impact on federal law. Invariably, lower courts have upheld all manner of gun control regulations, and the Supreme Court has denied review. Leading the charge has been the Ninth Circuit. The government is undefeated in Second Amendment cases, amassing a record of 50-0. And whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc. These numbers come, of course, from Judge VanDyke's dissent in Duncan v. Bonta. You see, Judge VanDyke and his colleagues on the Ninth Circuit are frustrated. In case, after case, after case, they are on the losing end of decisions. I imagine Judges Higginson and Costa from the Fifth Circuit can relate. They should start a support group--Dissenters Anonymous.

Now, VanDyke has tried something different. He actually managed to write a unanimous panel opinion declaring unconstitutional restrictions on firearms. Ventura County prohibited the sale of firearms for 48-days during the start of the pandemic, even as other commercial ventures remained open. This victory will be short-lived. We all know what is going to happen next. The Ninth Circuit, with a few more Biden nominees aboard, will en banc this case faster than you can say Reinhardt! Maybe in a year or so, when we are up to the Omega variant, the Ninth Circuit will drop a 200-page opinion that upholds the gun regulations under intermediate scrutiny. Then, one year later, the Supreme Court will deny certiorari over harsh dissents from the conservatives.

Frankly, this entire process is a waste of time. So, Judge VanDyke tried something new–write an "alternative" draft en banc opinion–or a fauxpinion, if you will–that reverses his panel opinion.

Since our court's Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn't write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. 

But wait, there's more. VanDyke adds an element of Mystery Science Theater 3000 to his concurrence.

To better explain the reasoning and assumptions behind this type of analysis, my "alternative" draft below will contain footnotes that offer further elaboration (think of them as "thought-bubbles"). The path is well-worn, and in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit's stamp of approval.

VanDyke's fauxpinion is a masterpiece. If you just read above the line, it could have come from any of the Ninth Circuit's luminaries. Truly, it is pitch perfect. If you read below the line, VanDyke points out how vapid the majority's jurisprudence is. A few of my favorites:

FN2: We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.

FN4: And second, once we've concluded that a challenged regulation does not place a "substantial burden on Second Amendment rights," it's really game over. A regulation that we've already determined does not substantially burden the Second Amendment can be upheld easy-peasy under our watered-down intermediate scrutiny test.

FN8: Whew. Hard work done. It's all downhill from here!

FN11: But trust us, this is heightened scrutiny. So very heightened.

FN12: Again, it doesn't matter much what we say here. Once we're allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it's so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.

What happens next? Well we will probably get an en banc call and reversal. Though, the court may decide this case is not worth fighting over, given how egregious Ventura County's restrictions were. Hey, the Supreme Court may even summarily reverse this opinion under Tandon v. Newsom. There may be some value to at least let the Second Amendment win once, to prove that the deck is not stacked against the right to keep and bear arms. Also, the easiest way to shut up that guy in Reno is to deny en banc! Think about it!

Or, the Ninth Circuit can take a cue from the Supreme Court, and declare VanDyke's majority opinion dicta, and find that the actual holding appears in VanDyke's concurrence–minus the snarky footnotes.

VanDyke's concurrence concludes, "You're welcome."

You're welcome.