California AG Becerra Asks Ninth Circuit for En Banc Review of Magazine Decision

On 28 August, 2020, Attorney General Becerra of Callifornia petitioned the Ninth Circuit to review the case of Duncan v. Becerra. The review would be of the three judge panel which held the California ban on magazines which hold over 10 rounds of ammunition to be unconstitutional. From the Petition for En Banc: 

https://michellawyers.com/wp-content/uploads/2020/08/2020-08-28-Petition-for-Rehearing-En-Banc.pdf

1 INTRODUCTION AND RULE 35 STATEMENT

California respectfully petitions for rehearing en banc of the panel’s decision, which invalidates a state law restricting large-capacity magazines that can hold more than 10 rounds of ammunition (LCMs). California voters adopted the current LCM law in response to a spate of mass shootings in this State and across the Nation, and in light of evidence establishing the severe toll inflicted by mass shootings involving LCMs. A divided panel of this Court, however, held that this law is among the policy choices that the Second Amendment takes “off the table.” District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

Judge Roger T. Benitez issued his opinion on 29 March, 2019. It is a beautifully written opinion, based on the philosophy that the Constitution means something, and should only be altered by amendment.  Judge Benitez found the magazine ban to be unconstitutional.

The three judge panel issued their opinion on 14 August, 2020. The majority opinion is based on the same philosophy, upholding Judge Benitez’ opinion. One judge dissented, based on the philosophy the Constitution should be interpreted to mean whatever judges deem appropriate for the times. 

The petition for review of the case by an en banc panel of the Ninth Circuit does not mean the review will automatically be granted. The Ninth Circuit could vote not to review the case en banc.

Whether the Ninth decides to hear the case en banc or not, the process takes time.  In a previous Second Amendment case, Peruta, the process for an en banc review took 18 months from the time Kamala Harris, then the California AG, petitioned for an en banc review.  Here is a timeline of significant events for the Peruta case from AG Kamala Harris’ petition for en banc review:

Kamala Harris calls for en banc review on 26 November, 2014. 

https://us2.campaign-archive.com/?u=1ef541dad0e09e0f2235125c0&id=7d9e693670&e=b5ca985bb4

A Judge on the Ninth Circuit  asks for vote on en banc on Peruta, 3 December, 2014.

http://cdn.ca9.uscourts.gov/datastore/general/2014/12/03/10-5697112-03-2014B.pdf

The Ninth Circut votes to review Peruta en banc on 26 March, 2015.

http://cdn.ca9.uscourts.gov/datastore/general/2015/03/26/10-56971%20EB%20Order.pdf

Peruta argued on 16 June, 2015.

The en banc opinion is filed on 9 June, 2016.

 http://cdn.ca9.uscourts.gov/datastore/general/2016/06/09/10-56971%206-9%20EB%20opinion%20plus%20webcites.pdf

The process with Peruta took a bit over 18 months. In the Peruta case, it was another year before the Supreme Court refused to hear the case. 

It is impossible to predict the timing of appeals cases. If we use Peruta as a yardstick, it could be two and a half years before the Supreme Court even decides whether to hear the case or not. A great deal can happen in two and a half years.

If President Trump is re-elected, he may have the opportunity to appoint another Supreme Court justice during that period. 

If President Trump is not re-elected, either former Vice President Joe Biden may have such an opportunity, or plausibly, Senator Kamala Harris may have become president and appoint a justice to the Supreme Court. 

It is possible, but unlikely, the Ninth Circuit and the Supreme Court would expedite matters and push the case through in nine months. 

I expect the stay on the ruling by Judge Benitez to continue through the process, until either the Supreme Court issues an opinion, or refuses to hear the case.

Do not expect quick action. 

If the Ninth votes not to review the case en banc, everything will be sped up by as much as 18 months. 

It is reasonable to expect the results of the en banc vote before the end of the year. 

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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