When most people think of Article III federal courts, they visualize a system that consists of trial courts (at least one in each state), an intermediate appellate court (a federal circuit, a District of Columbia circuit, and 11 circuits that review cases from trial courts in three or more states), and the Supreme Court. The first two categories are creatures of statute, but derive their power from the same Article III of the U.S. Constitution that created the Supreme Court.
Excluding the Federal Circuit, the Ninth Circuit is by far the largest Circuit Court in both population served and geographic jurisdiction. The Ninth Circuit hears appeals from 15 district courts in 11 states and territories: California (4 distinct district courts), Washington (2 distinct district courts), Arizona, Nevada, Oregon, Idaho, Montana, Hawaii, Alaska, Guam, and the Northern Mariana Islands.
The total population serviced by the Ninth Circuit is approximately 62 million people. By comparison, the next largest circuit by population is the 11th Circuit, servicing more than 33 million people. Because the Ninth Circuit has almost twice the number of authorized judges as most other circuits, on a the per capita basis, the Ninth Circuit sits in only fourth place behind the Eleventh, First, and Seventh Circuits.
Yet this is a misleading statistic. Judges don’t represent people in the same way the House and Senate do. They decide cases and make law that is binding over all the people in their circuit, covering the entire geographic boundaries of their circuit unless the Supreme Court intervenes. Furthermore, given the concentration of businesses, natural resources, and technological innovation in California (let alone the rest of states in the circuit) that means the Ninth Circuit may have a disproportionate impact on the nation as a whole. While the Ninth Circuit may only decide cases for 20 percent of the people in the United States, another way of looking at it is that one in eleven appellate courts is deciding cases for one in five Americans. That is a lot of judicial power concentrated in one court.
The usual progress of a case that takes the full tour through our federal court system (whether the case is criminal or civil) is adjudication in the trial court, appeal to the circuit court, and (if accepted for review) a final appeal to the Supreme Court.
But in recent years, and apparently more frequently in cases that take up Second Amendment issues, a rare process called “en banc review” has inserted itself between the circuit courts and the Supreme Court.
The term “en banc” has a linguistic pedigree derived from both French and Latin, and retains its ancient façade in English and American courts through inertia and formalism. Functionally it means “the whole court” rather than a single judge or panel of judges.
According to Rule 35 of the Federal Rules of Appellate Procedure, a rehearing en banc is supposed to be rare and may be ordered only when (emphasis added):
When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves a question of exceptional importance.
The rule has the effect of inserting discretionary review by an en banc panel of a circuit court (i.e., the full court) into cases that are already pending within that circuit. That review usually occurs after a three-judge panel has issued a decision in the normal course of court business, but may occur prior to that event. Under Circuit Rule 35-3, the Ninth Circuit does not – in fact – sit as full court to hear (or rehear) en banc cases, but limits such review to the Chief Judge of the circuit and ten judges drawn by lot, for eleven judges. There remains a rarely invoked provision for “super en banc” where the entire Ninth Circuit hears an appeal.
In practice, en banc review under the rules of appellate procedure will stall the progress of the usual three-judge panel decision on its way to discretionary review by the U.S. Supreme Court. This intervention by an en banc panel, though still discretionary, is ostensively limited by Fed. R. App. P. 35(a)(1), and is supposed to operate as a judicial norming process. This is supposed to be achieved when the en banc panel derails the rare outlier three-judge panel decision, and brings it back in line with Supreme Court and circuit precedent. This “uniformity rule” when applied as intended, helps to keep the Supreme Court’s docket free of decisions that deviate too far from established precedent and may also operate to focus issues that will highlight circuit splits.
In contrast, the justification for en banc review under the “question of exceptional importance” embodied in Fed. R. App. P. 35(a)(2) is much more subjective – and therefore more prone to mischief and abuse. Must the question of exceptional importance be national in scope, or based on issues unique to the particular circuit? Granted, a highly urbanized circuit like the Second (NY, NJ, PA, & DE) will have different kinds of cases than sparsely populated circuits like the Tenth (WY, UT, CO, KS, OK, & NM.)
But what about regional difference within a circuit that is the sheer size of the Ninth? What metric would be used for deciding whether en banc review is warranted, for example, in a water use case out of drought-prone Arizona, and whether that issue is of “exceptional importance” compared to a water-rich state like Washington? And what about Second Amendment cases that arise out of challenges to the hyper-active anti-gun California legislature and the dearth of Second Amendment challenges to laws in gun-friendly states like Idaho, Alaska, and Montana? Can a state like California dominate the Second Amendment docket of the Ninth Circuit to the detriment of other states that have no “exceptionally important” gun control issues?
Were it not for claims that various circuits are biased toward progressive (the Ninth & Second) or conservative (the Fifth) policy values, all these observations would be academic. There are two recent law review articles that argue that the key to resolving the bias question lies in examining a circuit court’s en banc cases, both how they are decided and how they are chosen. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U.L. Rev. 1373 (2021); and
Arthur D. Helman, Liberalism Triumphant? Ideology and The En Banc Process In The Ninth Circuit Court of Appeals, 31 Wm. & Mary Bill of Rts. J. 1 (2022).
The Devins & Larsen article postulates that;
En banc review is the one time when lower court judges have the potential to truly line up in teams—all those appointed by Democrats versus all those appointed by Republicans. En banc decisions thus provide valuable and critical insight into the potential erosion of the nonpartisan norm in federal judicial decision-making. And these days, it is hard to ignore the warning signs of the en banc partisan team spirit, especially on high visibility issues that divide the parties.
The Helman article is more narrowly focused on the Ninth Circuit’s patterns of balloting to determine whether to hear a case en banc, rather than studying case outcomes:
The focus of the [Helman] study is the court’s en banc process. But analyzing the ideological orientation of the Ninth Circuit using that approach presents a special challenge. For all of the other circuits, it makes sense to look at the outcomes of the cases that are heard en banc, because all of the active judges take part in en banc decisions. But in the Ninth Circuit, en banc cases are heard and decided by a limited en banc court (LEBC) composed of the chief judge and ten judges selected at random from among the other 28 active judges. The only judicial activity that involves the participation of all of the court’s active judges is the vote on whether to grant en banc rehearing – typically, of a case already decided by a three-judge panel.
Spoiler Alert. Both articles conclude, that in recent years, some of our circuit courts are indeed exhibiting a bias that is apparent through the en banc process; and that this bias aligns with the political party most responsible for the appointment of judges in that circuit. Both articles note that their analysis reveals nuanced bias rather than the crude partisanship we see in elections or congressional debates. The Helman article is careful to point out that even though the Ninth Circuit is a “liberal court” that conservatives there are not shut out of the process.
With respect to the Ninth Circuit’s en banc practices, it is not necessary to rely on academic or statistical analysis to support a claim of bias. More than one judge sitting in the Ninth Circuit has called out irregular en banc procedures and apparently skewed results in cases adjudicating Second Amendment claims.
Duncan v. Bonta has been kicking around the Ninth Circuit now (2024) for close to a decade. The suit challenges California’s law banning future sales and mandating confiscation of existing detachable magazines for firearms that hold more than 10 rounds.
The case was initially won and the magazine ban struck down in the District Court. Duncan v. Becerra, 265 F.Supp.3d 1106 (S.D. Cal. 2017). The decision of the trial court invalidating the law on Second Amendment grounds was affirmed (with a dissent) by the Ninth Circuit three-judge panel. Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020). A majority of judges in that circuit voted to rehear the matter en banc. Duncan v. Becerra, 988 F.3d 1209 (9th Cir. 2021). The en banc panel, applying the now discredited two-step analysis for Second Amendment claims, reversed and remanded the case. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021).
Judge Bumatay wrote a dissent, joined by Judges Ikuta, and R. Nelson that addressed the merits of en banc panel’s opinion. Id. at 1140. Judge VanDyke, largely agreeing with J. Bumatay’s dissent, nevertheless wrote a solo dissent addressing what he perceives as a distinct anti-Second Amendment bias in the Ninth Circuit. Id. at 1159. That dissent is a tour-de-force of the Ninth Circuit’s shabby treatment of Second Amendment rights.
A petition for certiorari was then filed with the U.S. Supreme Court. After that Court issued its opinion in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), the Duncan petition for writ of certiorari was granted. Judgment was vacated, and case was remanded to the Ninth Circuit for further consideration in light of Bruen.
Rather than send the case back to the trial court for adjudication under the new rules articulated in Bruen, the same en banc panel whose judgment was just vacated ordered the parties to file additional briefs before the same en banc panel. Then without addressing the merits of that briefing, the en banc panel (redundantly) vacated its own judgment and sent the case back to the trial court to apply the Bruen analysis to the case. Duncan v. Bonta, 49 F.4th 1228 (9th Cir. 2022). Judges Bumatay and VanDyke again dissented.
On remand, the District Court once again found California’s magazine ban unconstitutional. California appealed and sought a stay (and here is where it gets interesting) rather than treat the case as a comeback to the three-judge panel under Ninth Circuit General Order 3-6, the en banc panel derailed the case from that normal course of business and decided to issue an administrative (though modified) stay – once again over the separate dissents of Judges Bumatay and VanDyke.
In those dissents, both judges noted the irregularities of the procedures used to bypass the original three-judge panel under existing Circuit rules to place this case before the known hostile en banc panel. J. VanDyke even noted the absence of invoking the procedure to depart from procedure. He lamented that:
A lot about this is deeply troubling. First and foremost, we have rules for a reason. We operate under them every day. They should apply equally and consistently, unless and until we change those rules in the normal course. There is no exception for “cases that some of the judges on our court really, really care about.” That would be capricious and erode external and internal confidence in our court. If we lack the temerity to codify a “Second Amendment exception” in our en banc rules, we should have refrained from employing it behind the double veil of “internal court matters” in which only some members of the court participated.
Twelve days later, the known hostile en banc panel, that had bypassed the three-judge panel in a comeback case, without an intervening vote under either the Federal or Circuit rules for en banc review, issued an indefinite stay of the District Court’s judgment pending a decision by the hostile en banc panel on the merits. Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023). Judge R. Nelson joined J. Bumatay’s substantive dissent, but wrote separately to note the irregularities in the en banc process. Id. at 807. Judge Bumatay’s substantive dissent, was joined by Judges Ikuta, R. Nelson, and VanDyke. Id. at 808.
The accusation of rule-bending in Second Amendment cases by the Ninth Circuit is not confined to judges sitting in that circuit. Justice Thomas, dissenting from a denial of certiorari in Silvester v. Becerra, 583 U.S. 1139 (2018), noted:
[The Ninth Circuit] upheld California’s 10-day waiting period for firearms based solely on its own “common sense.” Silvester v. Harris, 843 F. 3d 816, 828 (CA9 2016). It did so without requiring California to submit relevant evidence, without addressing petitioners’ arguments to the contrary, and without acknowledging the District Court’s factual findings. This deferential analysis was indistinguishable from rational-basis review. And it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.
Id. at 1140. Justice Thomas went on to observe:
[T]he Ninth Circuit ignored several ordinary principles of appellate review. While rational-basis review “is not subject to courtroom factfinding,” Beach Communications, supra, at 315 [..], intermediate scrutiny is. And here, the District Court presided over a 3-day trial and was supposed to review those findings for clear error. See Fed. Rule Civ. Proc. 52(a)(6). Yet the Ninth Circuit barely mentioned them. And it never explained why it had the “definite and firm conviction” that they were wrong. United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948).
. . . .
The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. See Friedman v. Highland Park, 577 U. S. 1039, 1039-1043 (2015) (Thomas, J., dissenting from denial of certiorari); Jackson v. City and County of San Francisco, 576 U. S. 1013, 1013-1018 (2015) (same).
Id. at 1147–48.
Nor are Duncan and Silvester the only instances of the Ninth Circuit’s “special relationship” with the Second Amendment.
- In Fresno Rifle & Pistol Club, Inc., v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992), the Ninth Circuit’s Second Amendment rulings (regarding individual rights vs. collective rights, and incorporation against state action doctrine) were all eventually overruled by the Supreme Court.
- The Ninth Circuit repeated its errors from Fresno in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996).
- The same erroneous result was obtained in a criminal case: United States v. Mack, 164 F.3d 467 (1996).
- The Court made the same mistakes again in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), en banc review was denied with several dissents at 328 F.3d 567 (9th Cir. 2003), denied at 540 U.S. 1046 (2003).
- Additional dissents from a denial of en banc review of Second Amendment claims were filed in Nordyke v. King, 364 F.3d 1025 (9th Cir. 2004), denied at 543 U.S. 820.
- Justices Scalia and Thomas filed dissents to a certiorari denial in Jackson v. City and County of San Francisco, 576 U.S. 1013 (2015), after the Ninth Circuit upheld San Francisco’s local gun control ordinances.
- Justices Thomas and Gorsuch filed dissents to a certiorari denial in Peruta v. California, 582 U.S. 943 (2017), after an en banc panel of the Ninth Circuit upheld the ban that was eventually struck down in See Peruta v. San Diego Cty, 824 F.3d 919 (9th Cir. 2016).
- An en banc panel of the Ninth Circuit reversed the holding of a three-judge panel that would have allowed a challenge to a zoning ordinance outlawing gun stores in Teixeira v. Cty. of Alameda, 873 F.3d 670 (9th Cir. 2017), denied at 584 U.S. 977 (2018).
Judge VanDyke in the Ninth Circuit has been keeping a running tally:
The majority defends our undefeated, 50-0 record against the Second Amendment by pointing out that the states in our circuit simply have “more restrained” gun-control laws than the states in other circuits. While the majority is apparently serious, this claim can’t be taken seriously given that our circuit’s jurisdiction includes states like California and Hawaii—which have enacted many of the most aggressive gun-control laws in the nation. The majority’s failure to comprehend that reality underscores my point that something other than objective and impartial application of the two-part test is driving the outcomes in our Second Amendment cases.
Duncan, 19 F.4th at 1167 n.8. (emphasis added.)
Whether the Ninth Circuit “special relationship” with the Second Amendment is to be classified as an insurgency by revolutionaries or a counterinsurgency against a revolution depends – unironically – on whether one views the Supreme Court’s jurisprudence in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010) as revolutionary acts, or as that Court’s decision in the recent Bruen case make clear, more like a remedial lesson on what the Second Amendment has always meant since its ratification in 1791. Accepting the latter theory paints the Ninth Circuit as the radicals seeking to overturn constitutional norms.
In mitigation, the Ninth Circuit recently denied en banc review in a Second Amendment adjacent case, that was really a First Amendment case. In Junior Sports Magazines, Inc., v. Bonta, 80 F.4th 1109 (9th Cir. 2023):
The [three-judge] panel reversed the district court’s denial of plaintiffs’ motion for a preliminary injunction seeking to enjoin, pursuant to the First and Fourteenth Amendments, a California law that prohibits the advertising of any “firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.” California Business and Professions Code § 22949.80.
The panel assumed that California’s law regulates only commercial speech and that intermediate scrutiny applies.
Applying intermediate scrutiny, the panel first concluded that because California permits minors under supervision to possess and use firearms for hunting and other lawful activities, Section 22949.80 facially regulates speech that concerns lawful activity and is not misleading. Next, the panel held that section 22949.80 does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors. There was no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Finally, the panel held that section 22949.80 was more extensive than necessary because it swept in truthful ads about lawful use of firearms for adults and minors alike. Because plaintiffs had shown a likelihood of success on the merits and the remaining preliminary injunction factors weighed in plaintiffs’ favor, the panel reversed the district court’s denial of the preliminary injunction and remanded for further proceedings.
After no judge in the Ninth Circuit even called for a vote to rehear the case en banc, the State’s petition for rehearing en banc was denied. The Ninth Circuit issued the mandate on February 28, 2024. The case is now back in the district court for disposition in accordance with three-judge panel’s decision based on the First Amendment’s protection of conduct of Second Amendment activities.
Post-script
As this essay was being prepared for publication, the Duke Center for Firearms Laws published an essay that focuses on the Duncan case pending in the Ninth Circuit.
The essay acknowledges that the Ninth Circuit appears to be engaged in a “relatively bizarre” attempt to steer a comeback case to “an en banc panel with five senior judges to decide such a high-profile appeal and to potentially keep control over the case for years into the future (if, for example, their upcoming decision is ultimately overturned by the Supreme Court).”
Perhaps the Duncan en banc panel’s cupidity toward the case really is benign. But also perhaps, people can be forgiven their skepticism when they discover how the late Judge Stephen Reinhardt viewed his relationship with the Supreme Court.
In a May 5, 1997 article by Washington Examiner staff writer Matthew Rees, The Judge the Supreme Court Loves to Overturn, the late jurist seemed to relish his oppositional defiance of Supreme Court precedent. Appointed by President Carter in 1980, Judge Reinhardt believed, according to the author, “that courts can and should be used as agents of social change.”
The quote often attributed to Judge Reinhardt when asked about his reversal rate was: “They [the Supreme Court] can’t catch ‘em all.”
But the Supreme Court did take issue with one of Judge Reinhardt’s opinions, written but not published before his death. In Yovino v. Rizo, 139 S. Ct. 706 (2019), the High Court criticized the Ninth Circuit’s departure from en banc procedure:
A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.* In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed.
* In Altera Corp. v. Commissioner, 2018 WL 3542989 (CA9, July 24, 2018), decided four months after Judge Reinhardt died, his vote was initially counted as one of the two judges in the majority. A footnote in the opinion stated: “Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death.” Id., at *1, n. **. Later, however, the court vacated the opinion and issued an order reconstituting the panel. Altera Corp. v. Commissioner, 898 F. 3d 1266 (CA9 2018). No similar action was taken in this case.
A bit of the Supreme Court’s gallows humor followed:
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.
Whether Judge Reinhardt has any kindred spirited colleagues with similar attitudes who are still on the Ninth Circuit remains to be seen.
