Peruta/Richards going en banc

This sucks....big time. IANAL, but this seems like the worst outcome we could've had after the Peruta decision.

Also - as others have said, the SCOTUS isn't going to touch this. T

danb said:

But not Baker?

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Is Baker still being held pending Peruta? Any reason why Baker wouldn't also get en banc?

So basically, we lost. 9th is going to overturn this decision, SCOTUS isn’t going to touch it, and we don’t have any more Circuit cases left to send to SCOTUS after this.

I guess we have to bank on a Republican getting elected in 2016 so that a national carry law can get passed at this point.

abean4187 said:

So basically, we lost. 9th is going to overturn this decision, SCOTUS isn’t going to touch it, and we don’t have any more Circuit cases left to send to SCOTUS after this.

I guess we have to bank on a Republican getting elected in 2016 so that a national carry law can get passed at this point.

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Not quite.

Let the cards fall where they may.

Peruta has already be enshrined into other cases, untangling them maybe a mess in itself.

You can put me down on record, there will be no national reciprocity. It is a smoke and mirrors game so repubs can say the evil dems took it from you when in fact repubs have no intention of passing it either. National reciprocity is a carrot in front of our face that we will never get.

abean4187 said:

So basically, we lost. 9th is going to overturn this decision, SCOTUS isn’t going to touch it, and we don’t have any more Circuit cases left to send to SCOTUS after this.

I guess we have to bank on a Republican getting elected in 2016 so that a national carry law can get passed at this point.

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Pretty much.

Although we do have Palmer.

kcbrown said:

There's a roughly 4.3% (sorry, it's actually 2.8%. I'd forgotten that the chief judge gets to sit on the panel by default) chance that we draw a favorable panel, assuming all Democrat nominees vote against the right and that all the Republican nominees vote in favor of it. Given the 100% opposition to the right to arms on the part of Democrat nominees at the appellate level to date (at least that I've seen), that 4.3% chance is likely an upper bound.

Ignore these numbers at your "peril", but I predicted the case being taken en banc well in advance on the very same basis.


No, Peruta and Richards will almost certainly be overturned en banc.

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KC: I agreed all along that this case fully satisfied the criteria for en banc established by Rule 35 of the Federal Rules of Appellate Procedure because of the explicit circuit split. So I am not surprised by the en banc order, I am just disappointed because, like everyone else, I want what I want. You may well be correct as to the ultimate result. The 9th Circuit has always been very result oriented and its reputation for being that way is well known in other circuits and in the SCT. It is not for nothing it is the most reversed circuit in the country, sometimes unanimously so, by the SCT. I remembered citing to a 9th Circuit decision during oral argument in the 5th Circuit (based in New Orleans) years ago only to be told by one of the judges on the panel that "that's just a 9th Circuit decision" with obvious contempt. So, we shall see how this plays out with who sits on this particular en banc panel. The original panel decision is excellent and still out there, even if it is not precedent now. If it is reversed by the en banc court, the panel opinion will still be the template for a cert petition. The game is not over. Not by a long shot.

I guess mark the calendar for June 2017 instead of 2016...

esqappellate said:

KC: I agreed all along that this case fully satisfied the criteria for en banc established by Rule 35 of the Federal Rules of Appellate Procedure because of the explicit circuit split. So I am not surprised by the en banc order, I am just disappointed because, like everyone else, I want what I want. You may well be correct as to the ultimate result. The 9th Circuit has always been very result oriented and its reputation for being that way is well known in other circuits and in the SCT. It is not for nothing it is the most reversed circuit in the country, sometimes unanimously so, by the SCT. I remembered citing to a 9th Circuit decision during oral argument in the 5th Circuit (based in New Orleans) years ago only to be told by one of the judges on the panel that "that's just a 9th Circuit decision" with obvious contempt. So, we shall see how this plays out with who sits on this particular en banc panel. The original panel decision is excellent and still out there, even if it is not precedent now. If it is reversed by the en banc court, the panel opinion will still be the template for a cert petition. The game is not over. Not by a long shot.

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It is moving, that is something. I would not be surprised if the 9th ignores all the good constitutional analysis that has been performed on this case, and just dance the "two-step". As long as they hurry, I really don't care what their opinion ends up being (not quite true, but...). The great analysis done by the CA Circuit, combined with the good (and similar) analysis done in the MD and IL Circuits, all provide the ground work that can lead to a good SCT decision. While the "two-step" analysis should hold little sway in the highest court.

I may be too optimistic for some people, but I believe in the methodology that the SCT is waiting for all the lower Circuits to gather and analyze all the available data, case law and historic analysis before they take another case.

Is Peruta/Richards/et al the final straw? Who knows, but I still have faith that 2A case law will follow a similar path as most of the civil rights cases of the last decade. I was hoping the time line would be shortened, but it may not.


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esqappellate said:

KC: I agreed all along that this case fully satisfied the criteria for en banc established by Rule 35 of the Federal Rules of Appellate Procedure because of the explicit circuit split. So I am not surprised by the en banc order, I am just disappointed because, like everyone else, I want what I want.

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Oh, I don't dispute that. But there's a substantial difference between observing that a particular outcome is not impossible and actually predicting that outcome. The latter is a much stronger (and thus more vulnerable) statement. You didn't disagree with me as to the possibility of this going en banc. You disagreed with my methods of predicting that it would and, indeed, it appears you were rather skeptical that this case would be taken en banc (since that something is possible doesn't mean it's likely).

No matter. It is what it is. The point, however is this: these courts are political animals. Your experience may say otherwise, but your experience is, if I'm not mistaken, not with respect to arenas of law which are looked upon with the kind of fear and even contempt that this is. The right to arms is different from everything else because it is the only right that involves something which is of necessity dangerous by its very nature and which has the potential to give the citizenry greater power than the government. The 2nd Amendment is the only doomsday provision in the Constitution. It is unique, and that unique nature strikes fear into the hearts of any who distrust the citizenry. And guess what? That would be the majority of those who work for the government, most especially those within it who wield power, which includes judges (they are, after all, nominated by the very politicians who desire, above all else, to control what we do). For the self-selected purpose of government is to govern, which means to control, which requires greater power than that which is being controlled.

You may well be correct as to the ultimate result. The 9th Circuit has always been very result oriented and its reputation for being that way is well known in other circuits and in the SCT. It is not for nothing it is the most reversed circuit in the country, sometimes unanimously so, by the SCT. I remembered citing to a 9th Circuit decision during oral argument in the 5th Circuit (based in New Orleans) years ago only to be told by one of the judges on the panel that "that's just a 9th Circuit decision" with obvious contempt.

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Heh. I'm not at all surprised. However, for the 2nd Amendment, it's not just the 9th Circuit that's like this, it's all of them. The only variable is what result the panel members on the circuit wish to achieve.

There are, of course, some exceptions with respect to individual players. Posner on the 7th Circuit, for instance, started off by deciding against the right in McDonald, but once SCOTUS reversed that decision, he has upheld the right in subsequent decisions (Moore and Ezell). I frankly know of no other federal appellate judge for whom such an observation exists -- the data is just too sparse. In any case, very rare is the person who is capable of setting aside his own personal beliefs on an issue that strikes great fear in his heart.


No, I've said it before and I'll say it again: the right to arms is looked upon with much more contempt and fear than even minority civil rights were. The judicial rebellion you're seeing before you is proof of that. Such a thing has never happened in this history of this country as far as I know, but it's happening now.

So, we shall see how this plays out with who sits on this particular en banc panel. The original panel decision is excellent and still out there, even if it is not precedent now. If it is reversed by the en banc court, the panel opinion will still be the template for a cert petition. The game is not over. Not by a long shot.

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How can a depublished opinion be a template for anything? Doesn't the fact that it has been depublished take it off the table as regards post-depublishing citation?

kcbrown said:

How can a depublished opinion be a template for anything? Doesn't the fact that it has been depublished take it off the table as regards post-depublishing citation?

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The Peruta panel pretty much used Judge Legg's Woollard ruling as a template.
The petitioner would use the arguments in the depublished opinion as their arguments for the high court, O'Scannlain is a respected jurist, you'd get a lot of attention at the SC pointing out the 9th overturned one of his decisions.

kcbrown said:

Oh, I don't dispute that. But there's a substantial difference between observing that a particular outcome is not impossible and actually predicting that outcome. The latter is a much stronger (and thus more vulnerable) statement. You didn't disagree with me as to the possibility of this going en banc. You disagreed with my methods of predicting that it would and, indeed, it appears you were rather skeptical that this case would be taken en banc (since that something is possible doesn't mean it's likely).

No matter. It is what it is. The point, however is this: these courts are political animals. Your experience may say otherwise, but your experience is, if I'm not mistaken, not with respect to arenas of law which are looked upon with the kind of fear and even contempt that this is. The right to arms is different from everything else because it is the only right that involves something which is of necessity dangerous by its very nature and which has the potential to give the citizenry greater power than the government. The 2nd Amendment is the only doomsday provision in the Constitution. It is unique, and that unique nature strikes fear into the hearts of any who distrust the citizenry. And guess what? That would be the majority of those who work for the government, most especially those within it who wield power, which includes judges (they are, after all, nominated by the very politicians who desire, above all else, to control what we do). For the self-selected purpose of government is to govern, which means to control, which requires greater power than that which is being controlled.


Heh. I'm not at all surprised. However, for the 2nd Amendment, it's not just the 9th Circuit that's like this, it's all of them. The only variable is what result the panel members on the circuit wish to achieve.

There are, of course, some exceptions with respect to individual players. Posner on the 7th Circuit, for instance, started off by deciding against the right in McDonald, but once SCOTUS reversed that decision, he has upheld the right in subsequent decisions (Moore and Ezell). I frankly know of no other federal appellate judge for whom such an observation exists -- the data is just too sparse. In any case, very rare is the person who is capable of setting aside his own personal beliefs on an issue that strikes great fear in his heart.


No, I've said it before and I'll say it again: the right to arms is looked upon with much more contempt and fear than even minority civil rights were. The judicial rebellion you're seeing before you is proof of that. Such a thing has never happened in this history of this country as far as I know, but it's happening now.


How can a depublished opinion be a template for anything? Doesn't the fact that it has been depublished take it off the table as regards post-depublishing citation?

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Template means that the analysis can be used and cited for that purpose in a petition for cert and in other circumstances where the analysis is at issue, not that the decision is precedent. The published decision doesn't disappear.

can someone explain quickly in English what "en banc" and "cert" mean?

rockstarr said:

can someone explain quickly in English what "en banc" and "cert" mean?

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"en banc" means the entire court (all the judges), as opposed to a 3 judge panel. In the 9th Circuit there is panel en banc of 11 judges as a full en banc of entire court would mean something like 29 judges. No other circuit does panel en bancs. Although it has never happened, it is possible to grant full en banc in the 9th circuit to review a panel en banc.

"cert" refers to a "writ of certiorari" which is the common law writ issued by the SCT to bring a case to the SCT from a lower court. It is entirely discretionary with the SCT to issue such a writ. There remains a small number of cases which are subject to appeal to the SCT, but not much any more.

just saw this at TTAG

So is the entire Peruta case going en banc or just the interviener status? I guess it doesn't matter considering the Richards outcome.

fightinbluhen51 said:

So is the entire Peruta case going en banc or just the interviener status? I guess it doesn't matter considering the Richards outcome.

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Don't know. I think the intervener appeal has to be decided at some point. If Peruta is reversed, then Peruta will seek cert against a party (Gore) who will have been part of an en banc and potentially a SCOTUS case, unwillingly.
Again, IDK. This whole case has really gone into the weeds.

"An unidentified 9th Circuit judge in December independently called for the court to vote on whether to rehear the case, according to a court filing".

So much for transparency..

QFT

Schipperke said:

"An unidentified 9th Circuit judge in December independently called for the court to vote on whether to rehear the case, according to a court filing".

So much for transparency..

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It could have been more than one. The way it's worded leads you to believe one but I think it can be more than one.
If it was only one, I'd say Thomas. Not unusual to want a do over if your opinion didn't carry the day.