What does this mean for gun rights nationally?
In a move that was completely expected, a larger “en banc” panel of the 9th Circuit will hear California’s appeal of the 9th Circuit’s three judge panel which upheld the District Court’s ruling that the states magazine restrictions are unconstitutional.
What does this mean? It means that this larger panel could reverse both previous rulings. It could also affirm them. Much depends upon the luck of the draw as to which judges on the 9th Circuit are appointed to hear the case. Given that the 9th is almost evenly split between liberal and conservative judges, after several Trump appointees, it is more likely than not that the en banc panel will reverse – but it could go either way.
What happens if we win and the decision that the law is unconstitutional stands? Well, I think it highly unlikely that California will appeal. The chances of California winning at SCOTUS are far less than that of winning at the 9th Circuit. In that case, any magazine restrictions in AK, AZ, HI, ID, MT, NV, OR, WA, and the Pacific Territories would be unconstitutional – but such bans in the remainder of the US would still stand. The problem with gun control advocates appealing is that a loss at the Supreme Court would likely result in a SCOTUS decision of the level of constitutional protection (scrutiny) to be accorded the 2A right – as this was part of the District Court’s ruling. This would likely cause most of California’s laws to fall. It would also end magazine bans nationwide and put an end to Biden’s plans for a national ban, and likely the rest of his gun control agenda. That is why the state would be foolish to appeal.
What happens if we lose and the law is upheld as constitutional by the 9th Circuit En Banc Panel? Well, this would be both good and bad news. Obviously, the bad news would be that there would be no immediate relief for people suffering under magazine bans in the 9th Circuit. The good news would be that we would than have to option of appealing to SCOTUS, which of course we would do at once. As noted above, this could have very a positive outcome for us – and such an outcome is even more likely with four solid pro-2A justices on the nation’s highest court. Remember, Illinois chose not to appeal when that state lost a concealed carry case in the 7th Circuit, instead establishing a “shall issue” permitting system – something they really did not want to do – because they feared what SCOTUS would do. This was before two of the most clearly pro-2A justices in history were added.
In any case, we will need to be patient, as the 9th Circuit won’t decide this appeal for at least another year.
-Rev. R. Vincent Warde
2-25-2021
