The Second Amendment and Appellate Procedure

On March 19, the Ninth Circuit Court of Appeals heard en banc oral argument in Duncan v. Bonta, a Second Amendment challenge to California’s ban on large-capacity magazines.  The Ninth Circuit’s ultimate decision in Duncan could have major consequences, especially if it creates a circuit split with rulings from the Seventh and First Circuits upholding categorical bans of certain types of weapons and weapon accessories.[1]  Yet a surprisingly large portion of the oral argument in Duncan focused on obscure procedural questions surrounding the case—including whether the en banc panel is properly constituted, under both Ninth Circuit rules and federal statutes, and even has jurisdiction to decide the case.  

Duncan has a long and tortured procedural history.  California banned the possession of large-capacity magazines (LCMs) through a voter ballot initiative effective in 2017,[2] and the lawsuit challenging that restriction under the Second Amendment was originally filed later that year.  District Judge Roger Benitez struck down the LCM ban in a June 2017 opinion under intermediate scrutiny, finding that “[t]he statute hits close to the core of the Second Amendment and is more than a slight burden” and later granted the plaintiffs’ motion for summary judgment and enjoined the statute.  The state appealed, a Ninth Circuit panel heard oral argument in April 2020, and the panel subsequently affirmed Judge Benitez’s summary judgment decision as to the Second Amendment claim applying a strict scrutiny analysis and finding that “the state’s chosen method — a statewide blanket ban on possession everywhere and for nearly everyone — is not the least restrictive means of achieving the compelling interest [in public safety].”  Judge Lee wrote the majority panel opinion, joined by Judge Callahan, and Barbara Lynn (a district judge in the Northern District of Texas sitting by designation) dissented. 

The Ninth Circuit subsequently took the case en banc in February 2021 after “a majority of nonrecused active judges” voted in favor.  Oral argument before the en banc panel occurred in June 2021, and the en banc court vacated and reversed Judge Benitez’s decision in November 2021—finding that “California’s ban on large-capacity magazines is a reasonable fit for the compelling goal of reducing gun violence” (that decision was 7-4 and included two dissents[3]).  The plaintiffs filed a cert petition that was pending when Bruen was decided, and at that time the Supreme Court granted, vacated and remanded the case for further proceedings—as it did with several other pending Second Amendment petitions.  The Ninth Circuit en banc panel that had heard the case in 2021 was next to act, remanding the case back to Judge Benitez over dissents from Judges Bumatay and VanDyke (who both presumably preferred to apply Bruen at the appellate level in the first instance).  Judge Benitez then again struck down the law in September 2023, this time on the basis that “[t]here is no American history or tradition of regulating firearms based on the number of rounds they can shoot.”  And the case is now back at the Ninth Circuit, where the same en banc panel from 2021 granted a stay of Judge Benitez’s most recent order pending appeal, in a divided October 2023 opinion, and then heard oral argument in March.

The procedural spat in Duncan relates primarily to a federal statutory provision regulating circuit court conduct and the assignment of judges to panels: 28 U.S.C. § 46.  The statute provides in relevant part that “[c]ases and controversies shall be heard and determined by a court or panel of not more than three judges . . . unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service,” and it sets forth rules for how a circuit court must constitute any en banc panel.  The federal statute is mandatory, but circuits may employ different procedures for en banc re-hearing within the bounds permitted by § 46.  The debate surrounding § 46 in Duncan stems largely from the fact that the Ninth Circuit—with 29 active judges—is the only court where en banc rehearing does not mean that all active judges sit together to hear the case.  Rather, according to the Ninth Circuit, “[t]he en banc court consists of the Chief Judge, and ten non-recused judges who are randomly drawn.”  The Circuit’s general orders provide that active judges and any “senior judge who was a member of the three-judge panel assigned to the case being heard or reheard en banc [and] elect[s] to be eligible” may constitute the limited en banc panel.

The central issue is whether this specific en banc panel—the panel that heard argument in June 2021 and reversed Judge Benitez that November—can take the case “back” directly for a new en banc argument, or whether the case must instead be reassigned to either a new panel or a newly-drawn limited en banc court.  That question was raised in the context of the October 2023 stay order.  Dissenting from that order, Judge Nelson argued that “[n]o other circuit court would allow a prior en banc panel to hear a comeback case without an intervening majority vote of the active judges.”  He opined that there were only two options when the case reappeared at the Ninth Circuit in September 2023: first, the case could have been reassigned to a new, randomly selected panel; or, second, a new en banc vote could have been taken, with a new, randomly selected en banc panel drawn upon a favorable vote for rehearing.  Judge Nelson argued that the decision by the prior en banc panel to retain the case “raise[d] serious questions about this panel’s statutory authority under § 46(c)” because a number of judges in the en banc majority have now taken senior status (namely, Judges Paez, Thomas, Graber, Berzon, and Hurwitz).  Judge Bumatay echoed these concerns, noting that it was “perhaps the first time [the Ninth Circuit] ha[d] ever” retained a case with the same en banc panel in this manner.  In the context of § 46, the concern seems to be the requirement in subsection (c) that any “case or controversy” be heard “by a court or panel of not more than three judges” unless a favorable en banc vote is taken.  Judge Nelson’s argument is that the federal statute requires reassignment or a new vote, which would be taken among only active judges.

The parties then briefed the issue prior to oral argument. The state argued that the en banc court had authority to keep the case, relying in large part on the Ninth Circuit’s General Order 3.6(b) which says that:

Where a new appeal is taken following a remand or other decision by an en banc court, the Clerk’s Office shall notify the en banc court that the new appeal is pending, and proceed only after hearing instructions from that en banc court. The en banc court will decide whether to keep the case or to refer it to the three judge panel. The en banc court may elect to refer the case to the three judge panel while retaining jurisdiction over any future en banc proceedings.

This procedure, the state said in its brief, was consistent with § 46 because there simply is not a new “case or controversy” in Duncan despite the Supreme Court’s GVR.  And the state also opined that changes in status (judges taking senior status) were not relevant because § 46(c) expressly contemplates that a senior judge may “continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service.” 

By contrast, the plaintiffs in the case argued that the panel “should not issue any merits decision because it is unlawfully constituted”—in other words, that failure to follow mandatory en banc requirements means the panel lacks jurisdiction.  Relying on the initial part of § 46(c), the plaintiffs argued that any en banc rehearing can occur only with a vote of active judges at the time any new appeal is filed.  And the plaintiffs stressed that senior judges “cannot vote on whether to constitute en banc proceedings in the first place—let alone override the majority of voting active judges and cast the decisive votes to do so.”  To the plaintiffs, it also would not “make any sense as a policy matter to let a single en banc vote authorize 11 members of the Court to sit en banc in perpetuity.”

In its reply, the state contended that “case or controversy” is a “term of art that extends to the entire adversarial dispute between two parties, not just a single appeal within that dispute,” and argued that “[p]laintiffs’ fears about senior judges using General Order 3.6(b) to control the law of this Circuit in perpetuity are not persuasive, especially in light of the possibility of rehearing en banc before the full Court.” 

What is motivating all this, of course, is the fact that the Ninth Circuit is now almost evenly divided between Democrat and Republican appointed judges.  Democrat-appointed judges currently hold a slight 16-13 majority, by my count.  The en banc panel that currently has the case is 7-4 majority Democrat.  Thus, any type of reassignment short of a full en banc sitting[4] would mean there is a relatively good chance of a Republican-majority three-judge, or limited en banc, panel.  I think the state likely has the better of the “comeback” argument given that § 46 is generally applied so as to allow some variation in en banc procedure among the individual circuits.  As one scholar has explained, “[d]espite similar standards, [] considerable variations [in en banc procedures] exist among the circuits.”  And it simply isn’t clear to me that the federal statute requires that an en banc vote reflect a majority of active judge preferences at any particular point in the case—rather, that seems to be something left to circuit discretion.

That said, it is somewhat jarring to see so much energy devoted to this kind of procedural wrangling, at the expense of time spent on the actual merits of the case.  And lawyers on both sides exuded thinly-veiled frustration at being asked to spend time on the issue.  As a practical matter, it also seems relatively bizarre for 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).  That’s a separate question, of course, from whether exercising such control is statutorily permissible.  Recent efforts to crack down on “judge-shopping” and single-judge districts at the district court level are a welcome change and, I believe, should have bipartisan appeal.  The fact that these discussions are often tinged with partisan valence is unfortunate, especially because cases like Duncan illustrate that the temptation to use procedural maneuvers to dictate substantive outcomes is not limited to one side of the political spectrum.

[1] A cert petition asking the Supreme Court to review the Seventh Circuit’s decision in Bevis is currently pending.

[2] The state had previously banned the manufacture and sale, but not the possession, of LCMs.

[3] One dissent, by Judge Bumatay, would have rejected tiers of scrutiny entirely and employed a Bruen-like historical inquiry to find that the ban was unconstitutional.

[4] This possibility was discussed at oral argument, with neither party voicing serious objections.  The Ninth Circuit has never had a full en banc rehearing of a case (with all 29 active judges sitting together), but its General Order 5.8 contemplates that a case could be heard by the full complement of active judges either on motion or sua sponte.