The Newest Second Amendment Sidestep in the 9th Circuit
It has been over seventeen years since the United States Supreme Court held that the right to keep and bear arms is an individual right unconnected with service in a militia. Significantly, our high Court also held that the individual right to keep and bear arms does not depend upon the existence of the Second Amendment.
And yet, in every Federal Circuit, many judges refuse to recognize our right to keep and bear arms. In most circuits, these judges are in the majority. The largest and most infamous is the 9th Circuit Court of Appeals.
On Monday, a majority of 9th Circuit Court of Appeals judges voted to vacate the three-judge panel decision in Yukutake v. Lopez, a decision that held a permit to purchase a firearm that expired within 10/30 days and a requirement that newly purchased firearms be brought to a police station for inspection violate the Second Amendment.
That case will now be reheard before a limited en banc panel of eleven 9th CCA judges. 9th CCA en banc panels always consists of the Chief Judge (an opponent of the 2A) and ten “randomly” selected judges from a pool consisting of all, non-recused active judges sitting on the 9th CCA plus any senior status judge who sat on the vacated three-judge panel decision (if the senior status judge wants to be included in the pool of available judges).
Given that senior status Judge Carlos Bea wrote a scathing dissent in the case, I won’t be surprised to see him selected for the en banc panel. In any event, the math requires six pro-gun judges to be randomly selected from a pool of judges that is overwhelmingly anti-gun.
But should that panel of pro-gun unicorns be drawn, no problem. The anti-gun judges on the 9th Circuit Court of Appeals will simply vote to take some other Second Amendment appeal before an en banc panel and reverse whatever good the pro-gun panel did.
The same is true of Rhode v. Bonta when the three-judge panel decision in that case is vacated and reheard before an en banc panel. Senior status Judge Bybee wrote a 24-page dissent to a 47-page majority opinion. An opinion that held California’s ammunition background check regime violates the Second Amendment. Don’t be surprised to see Judge Bybee on that en banc panel, and don’t be surprised if that en banc panel does not erase whatever good a prior en banc panel may have done.
For that matter, don’t be surprised to see any en banc panel make it even that much more difficult for a Second Amendment challenge to prevail in this circuit.
Vacating the rare three-judge panel decision where the Second Amendment wins, rehearing the case en banc, where it invariably loses, is nothing new. What is “new” is the standard of review in the 9th Circuit for Second Amendment challenges.
In 2009, now senior status judge O’Scannlain held “that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.”
The “Substantial Burden” standard of review means that every law that infringes on the Second Amendment is automatically constitutional, except for those laws that at least two of the three judges on the panel think place a substantial burden on the right.
But even a substantial burden on the Second Amendment right does not mean that the infringing law will be held to be unconstitutional. It only means that the law will be subjected to “heightened scrutiny,” which is a balancing test by judges where they weigh the infringement of the right against what they perceive to be the benefit of the infringement.
The so-called pro-gun groups and their lawyers celebrated that opinion from the Nordyke v. King gun show case. That made no sense to me at the time. Somewhere along the way, I realized that Lenin’s old saying applies to the so-called gun-rights groups in spades: “The best way to control the opposition is to lead it ourselves.”
In 2013, the 9th CCA adopted what came to be known as the “Second Amendment Two-Step.” Specifically, if in the eyes of the judges, a challenged law does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right, the Court applies intermediate scrutiny. Or at least that is how the 9th CCA characterized it in US v. Chovan (2013).
In NYSRPA v. Bruen (2022), writing for the majority, Justice Thomas wrote that the two-step is one step too many. The new standard of review became an if-then standard of review.
The test from NYSRPA v. Bruen is if the proposed conduct falls within the plain text of the Second Amendment, then the burden shifts to the government to show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth Amendment, does not protect the proposed course of conduct.
When I filed the opening brief of my California Open Carry appeal in 2016, I argued for a simpler one-step, if-then test. I argued, “The Second Amendment comes with its own standard of judicial review. If a law infringes on the Second Amendment right, then it is unconstitutional.”
Feel free to read any brief, any transcript, or listen to any oral argument by any attorney for any of the so-called gun-rights groups in their Second Amendment lawsuits. You would have to be deaf and blind not to notice that they argue for infringements on the Second Amendment and they argue for infringements in the strictest definition of the word (bans).
And yet I am the one they and their memberships condemn because I refuse to say that District of Columbia v. Heller held that Open Carry can be banned in favor of concealed carry. Not that there aren’t many valid reasons, that just isn’t one of them.
But I digress.
Although I technically “won” my appeal by obtaining a reversal in full of the district court decision in favor of the State of California, the 9th CCA did not adopt my proposed standard of review.
The 9th CCA has not even adopted the standard of review from NYSRPA v. Bruen.
The 9th CCA now says that if the proposed course of conduct falls within the plain text of the Second Amendment, then the challenged law must “meaningfully constrain” the right to keep and bear arms.
If the challenged law does not meaningfully constrain the exercise of one’s Second Amendment right, then the law is automatically constitutional.
The 9th Circuit Court of Appeals has, for all intents and purposes, simply rewritten its “substantial burden” test, which it pulled out of its hat in 2009, without the “heightened scrutiny” bit.
And so, the “Newest Second Amendment Sidestep in the 9th Circuit” makes it easier for the anti-gun judges in the 9th Circuit to uphold laws infringing on the Second Amendment than did the substantial burden framework the 9th Circuit Court of Appeals contrived in 2009.
For example, California law prohibits me from possessing any handgun, even antique handguns, outside the doors to my home. It is a crime for me to even transport them unloaded, in a fully enclosed locked container, outside the doors to my home to my motor vehicle because I live 800 feet from a K-12 public school and because California amended its Gun-Free School Zone Act of 1995, effective January 1, 2024, to require that handguns be kept within a motor vehicle “at all times” (California also made possession of all firearms, not just handguns, on public transit a crime).
It is also illegal for me to carry a loaded or unloaded firearm, other than an unloaded, antique long gun, outside the doors to my home because I live in an incorporated city.
According to the State of California, that is not a meaningful constraint on my right to keep and bear arms.
District Court Judge Sunshine Sykes agreed with the State of California. She imposed an indefinite stay of my California Open Carry lawsuit even though she does not have jurisdiction to impose any stay because 9th Circuit procedural law prohibits the stay of a case on remand, unless the remand explicitly included words that allowed for a stay.
And no judge may impose an indefinite stay under any circumstances.
And so it should come as no surprise that Judge Sykes, who has refused to comply with the Court of Appeals' order remanding my case for nearly three years, said that the burden on my rights is not meaningful.
The laws that criminalize my right to keep and bear arms outside the doors to my home apply to nearly everyone who doesn’t wear a badge, and that includes those of you who have a CCW. Indeed, if you have a CCW, you are prohibited from possessing rifles, shotguns, and handguns, whether loaded or unloaded, and whether antique or modern, in most urban places, as most of the newly prohibited areas from California Senate Bill No. 2 (effective January 1, 2024) apply only to individuals who have a CCW.
And those newly prohibited places for persons who have a CCW apply to hunters and target shooters who would otherwise be exempt from California’s prohibitions on carrying loaded and unloaded firearms in public.
A misdemeanor conviction for violating California’s gun laws (loaded and unloaded, antique and modern, carried openly or concealed) results in a minimum ten-year loss of one’s right to keep and bear arms in the United States.
Some misdemeanor convictions and felony convictions result in a lifelong loss of one’s right to keep and bear arms in the United States.
