Pre-Game Analysis of 9th Circuit En Banc Rehearing of the Second Amendment
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When and Where?The week of March 25th, 2019, eleven active judges of the 9th circuit court of appeals and the players for the two sides will assemble in the James R. Browning U.S. Courthouse, San Francisco to hear oral argument in the case of George Young, Jr. v. State of Hawaii.Peruta v. San Diego/Richards v. Prieto en banc panelThe Nature of the GameThe case before the judges is a simple one. George Young appeals from the district court’s dismissal of his civil rights action challenging under the Second Amendment provisions of Hawaii law pertaining to the issuance of permits to carry a concealed or unconcealed weapon.In short, is there a Second Amendment right to keep and bear arms outside of the interior of our homes or, as the district court held, the Second Amendment disappears once we step outside the door to our home?A high stakes game to be sure.Possible OutcomesIf the en banc panel publishes a decision, which is likely, then that decision will be binding on all subsequent three-judge panels in the 9th circuit court of appeals unless or until the United States Supreme Court issues a decision which casts doubt on the en banc decision in Young v. Hawaii.The en banc panel of judges could simply issue an unpublished decision, which is binding on nobody except the parties to the lawsuit, and/or kick the case back to the district court for a do-over.The JudgesBecause of its size, the 9th circuit court of appeals does not hold “full court” en banc hearings which normally consist of all active, non-recused circuit judges in a particular circuit.Had President Trump been able to fill all of the vacancies on the 9th circuit court of appeals last year then there would now be 29 active judges.As it is, there are 23
