Handguns on display at SHOT Show 2024
Handguns on display at SHOT Show 2024 / Stephen Gutowski

Analysis: Could Ninth Circuit Inaction Change Gun-Rights Plaintiffs’ Fortunes? [Member Exclusive]

California failed to convince the Ninth Circuit to review a ruling against one of its gun laws this week. Was that a one-off decision, or could it be the start of a new trend?

On Tuesday, the appeals court rejected a request from Attorney General Rob Bonta (D.) to take Junior Sports Magazines Inc. v. Bonta to an en banc review. That would have likely resulted in the September ruling against California’s ban on marketing that could appeal to minors being overturned. Instead, not a single judge on the Ninth Circuit voted to take up the appeal.

“It seems like forever since the Ninth Circuit has refused to hear a gun case en banc,” Alan Gottlieb, head of plaintiff Second Amendment Foundation, told The Reload. “Hopefully, this is a new trend.”

If that trend does develop, it would be a significant boon to gun-rights plaintiffs.

Up to this point, it has been very difficult for advocates to get a lasting legal win. While there have been favorable rulings for them at the district and initial appeals court levels since 2008’s District of Columbia v. Heller, they are often fleeting. Decisions against gun laws in the liberal-leaning circuit have almost universally been taken all the way up to an en banc panel.

In that time, the Ninth Circuit did not deny a government request to take a Second Amendment case en banc. And it has always upheld the challenged gun restriction.

So, for gun-rights plaintiffs in the circuit to succeed, they’ve had to hope the government would either give up on defending a case or the Supreme Court takes up the issue. Those have both, of course, been long shots.

If the Ninth Circuit becomes more selective in taking gun cases en banc, that would probably raise the odds that more gun challenges end up succeeding.

A number of factors could drive the change. For one, there has been a great deal of criticism of the Ninth Circuit’s gun record and even dissension from judges on the court. Perhaps that has had an effect.

Then there’s the fallout from the Supreme Court’s New York State Rifle and Pistol Association v. Bruen ruling. Not only did that decision feature lengthy criticism of the standard the Ninth Circuit and others had used to uphold most gun law in the wake of Heller, but the Second Amendment standard it laid out opened the door for many more gun-rights challenges.

So, the Ninth Circuit may be forced to pick and choose which of the numerous new gun cases it will take into its limited en banc schedule. Or they may be looking only to take those they’re most confident won’t end in a Supreme Court reversal.

In Junior Sports Magazines Inc., a unanimous three-judge panel found the state’s gun ad ban unconstitutional.

“In view of its apparent lack of any limiting principles, § 22949.80 effectively constitutes a blanket restriction on firearm-product advertising,” Judge Kenneth K. Lee, a Donald Trump appointee, wrote for the panel. “A speech restriction of that scope is not constitutionally sound under any standard of review.”

Of course, as Judge Lee explains, that means the case is only partially about guns.

“This case is not about whether children can buy firearms. (They cannot under California law,)” he wrote. “Nor is this case about whether minors can legally use firearms. (California allows minors under adult supervision to possess and use firearms for hunting, target practice, and other activities.) And this case is not about whether California has tools to combat the scourge of youth gun violence. (It does.)”

“Rather, this case is about whether California can ban a truthful ad about firearms used legally by adults and minors—just because the ad “reasonably appears to be attractive to minors.”

So, that underlines a significant reason this en banc denial might not predict a new trend. Junior Sports Magazines Inc. is not a Second Amendment case. It’s a First Amendment case.

In fact, the day after the Ninth Circuit declined to take the case en banc, it accepted a different one. Unlike Junior Sports Magazines Inc., Teter v. Lopez is not a gun case. But it is a Second Amendment case.

“Because the possession of butterfly knives is conduct protected by the plain text of the Second Amendment, and because Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms, we conclude that section 134-53(a) violates Plaintiffs’ Second Amendment rights,” Judge Carlos Bea, a George W. Bush appointee, wrote on behalf of the unanimous panel.

The Ninth Circuit now appears to be on the path toward reversing another pro-gun ruling right after it let another one stand. Junior Sports Magazines Inc. opens the possibility that gun-rights activists will have more success in the most liberal circuit in the country. Teter should temper those same activists’ hopes, though.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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