9th Circuit Orders En Banc Rehearing In Peruta And Richards Cases

Ninth Circuit Court of Appeals Chief Judge Sidney Thomas is getting his wish:  an en banc rehearing of the Peruta and Richards cases. Judge Thomas was the sole dissenter in those cases. The only way to reverse the precedent in those cases was to have it reversed by the US Supreme Court or through an en banc rehearing of the case.
When an unnamed judge on the Ninth Circuit – widely assumed to be Judge Thomas – called sua sponte for an en banc rehearing of the case, it wasn’t good news. Both the plaintiffs and the defendants were required to submit briefs arguing either for or against an en banc rehearing. The decision on whether to call for the rehearing was dependent upon the vote of the majority of the active judges on the circuit. Given the overall liberal nature of this circuit, I guess we should not be surprised by the rehearing.

Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Federal Rule of Appellate Procedure
35(a) and Circuit Rule 35-3. The three-judge panel opinion and order denying
motions to intervene shall not be cited as precedent by or to any court of the Ninth
Circuit.

The panel sitting on the rehearing of the case will be Chief Judge Thomas, a Clinton appointee, and 10 other judges picked at random. In all other circuits, all active judges would sit for the en banc rehearing. However, given the number of judges in the Ninth Circuit, they have had to adopt different procedures.

The question on whether California Attorney General Kamala Harris and the State of California will be allowed to intervene in the case is still up in the air.

All in all, this isn’t good news for carry rights in California.


6 thoughts on “9th Circuit Orders En Banc Rehearing In Peruta And Richards Cases”

    1. It's a travesty that Thomas, as the dissenter in the original case and (assumed) requester for en banc hearing, will be one of those 11.

      He's already decided and can't be trusted to remain objective. The decision didn't go the way he wanted, but he's getting another crack at it. If a prosecutor attempted this in a criminal case after getting a "not guilty" verdict, it'd violate double jeopardy protections. He should be recused.

  1. Given that concealed carry is not a right, the en banc decision is likely to have little impact on the Second Amendment.

    "{A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    "[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…" Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

    "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

    1. Have you read the early cases Heller cited for those propositions? They don't support your claim that the right to bear arms is limited to the right to openly carry.

    2. It is illegal in California to openly carry a firearm. Most jurisdictions in California arbitrarily deny concealed carry permits for law abiding citizens. You can cite all the irrelevant court cases you want, but Californians have no legal method of carrying a firearm for self defense, openly or concealed. Therefore they are violating the rights secured by the Second Amendment. Your argument might be a valid one for overturning the prohibition on open carry but would also require that California prohibit localities from passing their own, more restrictive, laws. Given that even half of gun people have a cow when open carry is brought up, I don't know how much support you'd have for that proposition but it would certainly fit your Second Amendment jurisprudence claims.

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