Constitutional Law

Nordyke taken for en banc review

In Nordyke v. King, a 9th Circuit three judge panel ruled that the 2A was incorporated and applied to the States (and also that the regulation in question was reasonable). Neither party applied for en banc review, but at least one judge did (as the rules allow). Today the 9th Circuit issued an order stating that it would review the decision en banc (meaning that a majority of active duty judges had so voted), with argument to be set for week of Sept. 21 (quite rapidly for this sort of thing).

En banc review is traditionally review by all the judges of a circuit, not just a 3 judge panel of them. But the 9th is so large in terms of judges (27 active duty and 21 on senior status) that under its rules en banc is by a panel of the chief judge and 10 active duty judges picked at random.

The 9th has had at least two major anti 2A cases (Silveria and Hickman) and one major pro 2A case (the Nordyke panel). The requirement that the en banc panel be composed of active judges takes several of the judges on those cases out of the running. I could those remaining in as split 2-2. (Kozinski, as chief judge, is always in, thank goodness!):

Reinhardt -- anti, wrote Silvera.
Fisher -- anti, joined in Silvera

O'Scanlainn -- pro, wrote Nordyke.
Gould -- pro, joined in Nordyke.

Full post as published by Of Arms and the Law on July 29, 2009 (boomark / email).