In a blistering 29-page amicus brief submitted to the Ninth U.S. Circuit Court of Appeals in a case known as Yukutake v. Lopez, the attorney representing the Second Amendment Foundation (SAF) and its partners takes the court to task for its history of “routinely granting en banc rehearing to overturn Second Amendment victories.”
The case challenges Hawaii’s restrictive handgun purchasing requirements, which were initially struck down by a three-judge panel of the Ninth Circuit. However, as the amicus brief details, “For most other types of litigants in the Ninth Circuit, en banc rehearing is statistically almost as rare as a Supreme Court cert grant, and prevailing parties after a three-judge panel almost always keep their victories. But rehearing is practically a matter of course in this Court whenever litigants challenging gun laws prevail on final judgment before a three-judge panel. With only one very recent exception in which en banc did not occur because the state of California did not petition for rehearing, every appellate victory for the Second Amendment has been reversed en banc.”
The amicus brief was submitted Monday by attorney Konstadinos T. Moros, SAF director of Legal Research and Education. It was submitted on behalf of SAF, the California Rifle & Pistol Association and the Second Amendment Law Center.
Moros made his argument abundantly clear when he wrote, “It’s as indefensible as it is clear: the Second Amendment is (save for the recent exception of Nguyen) not allowed to prevail in the Ninth Circuit.”
In a prepared statement, SAF founder and Executive Vice President Alan Gottlieb observed, “These arbitrary restrictions in Hawaii are unique and burdensome with no parallel in other states. We urge the Ninth Circuit to either reinstate the three-judge panel’s ruling striking down these laws or rule in favor of the plaintiffs, ensuring that the Second Amendment is treated with the respect it deserves.”
Hawaii law imposes a 30-day limit for the permit-to-purchase a firearm, and then requires a police inspection of the purchased firearm within five days. SAF contends this violates the Second Amendment by placing an undue burden on citizens exercising their Second Amendment rights.
“If a gun owner living in Hawaii or the West Coast desires to challenge a particular gun law they believe violates the Second Amendment, this Court’s track record serves as the ultimate chilling effect to dissuade them from bothering to turn to the court system,” the brief notes. “More distressingly, some of these decisions were demonstrably wrong, and the challengers’ unsuccessful arguments were later vindicated by subsequent Supreme Court decisions.”
Later in the brief, Moros cautions, “An en banc rehearing that tears away yet another victory by plaintiffs seeking to vindicate their Second Amendment rights will merely confirm that this Court will ‘continue to twist the law and procedure to reach [its] desired conclusion.’ In that sad scenario, Second Amendment litigants will have nothing left but the hope that the Supreme Court finally tires of receiving the ‘judicial middle finger’ from this Court and begins regularly reversing its rulings.”
Coincidentally, in a recent report published in the Tennessee Star, Supreme Court Justice Neil Gorsuch is noted to have “called out lower courts on Thursday for a pattern of defying Supreme Court rulings.”
While Gorsuch was discussing non-Second Amendment cases, his message seemed clear: Lower courts have developed a habit of ignoring decisions from the high court, and it needs to stop.
In his amicus, Moros referred to other cases won by gun rights litigants before three-judge panels, only to have those decisions reversed by en banc rulings.
“That is an all-too-common trend in this Circuit that leaves Second Amendment litigants feeling hopeless, with any panel victories for them seemingly destined for vacatur,” Moros writes. “’Trend’ is perhaps putting it much too lightly, because when a panel of this Court actually strikes down a law for violating the Second Amendment, the ruling ‘will almost certainly face an en banc challenge.’”
He expresses concern that another recent decision by a three-judge panel, in Rhode v. Bonta, which struck down California’s background check requirement for ammunition purchases, will also be reversed by an en banc hearing.
The amicus offers this stunning dissection of the Ninth Circuit’s focus on reversing Second Amendment victories: “Normally, a case receiving en banc review is exceedingly rare. For context, in 2022 and 2023, there were a combined 16,343 new appeals filed in this Court. In that same two-year period, 1,351 en banc petitions were filed, of which just 26 were granted rehearing. In other words, only about 2% of en banc petitions are granted, and only about 0.16% of all filed appeals ever get en banc review. Yet despite how rare en banc rehearing is overall, somehow every single case in a final judgment posture in which plaintiffs prevail on Second Amendment challenges has received en banc review, with only one very recent exception in which California did not seek en banc review…”
If the Ninth Circuit needed a wake-up call, the SAF amicus brief is ringing the telephone off the hook.
About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.
