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View Full Version : Prof. Volokh on Nordyke en banc matters...


bwiese
05-19-2009, 11:43 PM
UCLA's Prof. Eugene Volokh estimates en banc likelihood in Nordyke as fairly low:

http://www.volokh.com/posts/1242774777.shtml
Ninth Circuit Judge Calls for En Banc Review in 9th Circuit's Second Amendment Gun Show Case:

The parties have been asked to file briefs within 21 days of yesterday on whether en banc review is warranted. After that, it would take a majority vote of all 27 active Ninth Circuit judges to vacate the panel decision, and thus cause a rehearing by a 11-judge subset of the 9th Circuit (Chief Judge Alex Kozinski plus ten randomly drawn judges).

Unless I'm mistaken, the en banc review procedure in the 9th Circuit is all or nothing: though there are two conceptually separable issues in the case - whether the 2nd Amendment is incorporated against state and local governments (on which the gun shows won), and whether under the Second Amendment governments may ban guns in county fairgrounds (on which the gun shows lost) - a judge can't vote for en banc review of only one of the issues.

I tentatively stand by my prediction from last month as to the likelihood of en banc review: I expect that rehearing en banc isn't very likely. First, such en banc review is always hard to get. Second, here at least two of the Democrat- appointed judges — Pregerson and Gould — have expressed their views that the right to bear arms should indeed be incorporated, Gould both here and in the Silveira v. Lockyer case, and Pregerson in Silveira. (Two other Democrat-appointed judges, Reinhardt and Fisher, stated in Silveira (http://caselaw.lp.findlaw.com/data2/circs/9th/0115098p.pdf) that "One point about which we are in agreement with the 5th Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"; but those judges also took the view that the 2nd Amendment only secured a collective right, and it's not clear whether they would reconsider their position now, following Heller.) Three Republican-appointed judges, Kozinski, O'Scannlain, and Kleinfeld, are likewise on the record as supporting incorporation.

For there to be a majority — 14 of the 27 active judges — for taking the case en banc, all of the 16 Democrat-appointed Ninth Circuit judges other than Pregerson and Gould would have to vote for en banc, or each Democrat-appointed defector would have to be balanced by a Republican- appointed vote for en banc. That's not impossible; some conservatives do indeed support gun controls, just as some liberals support gun rights. But it doesn't seem very likely. (Judge Alarcon, as a senior judge, can't vote on the en banc.)The 9th Circuit doesn't reveal the identities of judges who call for en banc, or the identities of those who vote for or against en banc (except insofar as they may identifying themselves in any written opinions dissenting from the denial of en banc or supporting the denial of en banc).

yellowfin
05-19-2009, 11:50 PM
I'm confused a tiny bit on the en banc briefs to be filed. Our side didn't want this to happen, so would they file a brief saying please don't, or only upon specified terms? If the latter, can that work?

xxdabroxx
05-20-2009, 12:13 PM
Who is professor Volokh, and why is he held so high? He seems to be very highly regarded, but i do not know why.

DDT
05-20-2009, 12:17 PM
wrt Prof. Volokh; Google is your friend.

I suspect the county has much more to lose in the long run by having this drawn out any further. If we go en banc and lose there is little doubt how SCOTUS will respond on appeal. If we go en banc and Alameda loses their "sensitive area" claim for fairgrounds and essentially all public property they have little hope for relief.

Liberty1
05-20-2009, 12:19 PM
Who is professor Volokh, and why is he held so high? He seems to be very highly regarded, but i do not know why.

Professor E. Voloch (http://en.wikipedia.org/wiki/Eugene_Volokh)

wcnones
05-20-2009, 12:21 PM
Eugene Volokh is a UCLA law prof known for legal opinions of which I cannot recall. He's held in high regard by academia, which really means nothing in the grand scheme of things.

As for en banc - the Nordykes will file a brief explaining why the decision rendered is sufficient and that an en banc hearing is superfluous and not warranted. The county will file a brief explaining why the panel that heard/decided Nordyke erred in the verdict. The attack cannot be on logic, but rather must focus on procedural errors or misinterpretations of law.

It won't happen, but if it does, it is not a loss for Nordykes. If an en banc review reverses and remands, Nordykes will argue it again and, if a new decision is rendered that is against Nordykes, SCOTUS opens up.

DDT
05-20-2009, 12:28 PM
It won't happen, but if it does, it is not a loss for Nordykes. If an en banc review reverses and remands, Nordykes will argue it again and, if a new decision is rendered that is against Nordykes, SCOTUS opens up.


What would an en banc panel reverse and remand? The only decision the 3 judge panel made wrt the case was to refuse the Nordykes the right to amend their complaint. A reverse and remand would mean that the Nordykes get a chance to have their 2A claim added to the suit. Unless the en banc panel refutes the 3 judge panels assertion that the 2A is incorporated against the state there is little downside to us. However; since incorporation was procedural in this case rather than core, any finding reversing the 3 judge panel would be immediately appealable to SCOTUS rather than being remanded.

xxdabroxx
05-20-2009, 12:33 PM
Professor E. Voloch (http://en.wikipedia.org/wiki/Eugene_Volokh)

younger than i expected. :cool2:

wcnones
05-20-2009, 12:39 PM
If I am not mistaken (and I likely am because I am a scant 6 days out of law school) reversal would be based on legal interpretations surrounding the actual subject matter of the case. Any reversal would be based on the complaints of the Nordykes, ie guns on county fairgrounds. But in the case of a reversal, the original opinion becomes void. Which means that the 2A incorporation is void until a majority publishes a subsequent opinion affirming the 2A incorporation.

Here's the cliff's notes:

1. Nordyke decision incorporates 2A
2. En banc hearing reverses Nordyke decision with opinion superior to first 9th opinion
3. Reversed Nordyke decision voids 2A incorporation
4. Nordyke re-heard at 9th Circuit
5. New majority publishes opinion that replaces En banc opinion; if it affirms the 2A incorp, all is good. If it doesn't, SCOTUS still an option.

DDT
05-20-2009, 12:48 PM
Does the court not have to give guidance to the lower court on what they need to do differently in their re-hearing of the case? So, if they remand the case saying to the lower court to re-consider allowing the 2A claim on what basis do they send it back? The only one that I can determine is that they would tell the court to re-consider the "sensitive area" definition. This would be good for us because for the court to allow a 2A claim incorporation is assumed. If they only reverse the procedure by which the 3 judge panel found 2A incorporated it would not be remanded because the outcome is unchanged. Therefore it would be ripe for SCOTUS imediately.


(I've never even taken a law class so I'm sure you're miles ahead of me understanding the issue but the above is merely my common sense understanding)

wcnones
05-20-2009, 2:37 PM
The court, en banc, would have to tell the 9th panel why it is overruling the panel's decision. Remanding may be the improper term...civ pro was three years ago so bear with me. But an en banc hearing would effectively create a court that is technically higher than the 9th panel, although not officially because it is the same court. A remand as I am using the term would send the case from the en banc panel back to a regular 9th circuit panel with guidance on how to rule on a subsequent hearing. And I honestly have no idea if an en banc hearing simply replaces a panel's hearing without any remand options or if it says "Panel, you got it wrong, try again."

I am likely using remand improperly, as there is probably another term. Remand is when, on an appeal, a court sends a decided case back to the lower court that made the appealed ruling. Since an en banc hearing would originate in the same court that made the ruling (ie, the 9th circuit), remand is likely not the proper term. But since an en banc hearing is like an appeal, I'm using the term just because I'm too lazy to whip out my civ pro book.

Nevermore
05-20-2009, 11:31 PM
Eugene Volokh is a UCLA law prof known for legal opinions of which I cannot recall. He's held in high regard by academia, which really means nothing in the grand scheme of things.


He's well-regarded because he can articulate legal concepts in a fairly lucid way and -- among gun owners -- being a rare academic who supports 2A rights, and has testified in front of Congress detailing why the 2A is an individual right and not a "collective" right that many would prefer it to be.

Sobriquet
05-20-2009, 11:38 PM
http://law.ucla.edu/home/index.asp?page=739

unusedusername
05-21-2009, 12:13 AM
Eugene Volokh is a UCLA law prof known for legal opinions of which I cannot recall. He's held in high regard by academia, which really means nothing in the grand scheme of things.


Considering that I was recently a grad student, I find this to be both true and hilarious. :)

The battles in academia are fought so hard because the rewards are so small...

wcnones
05-21-2009, 3:17 AM
The battles in academia are fought so hard because the rewards are so small...

New sig material there...mind if I use it?

bridgeport
05-21-2009, 6:20 AM
Volokh is the man,Check out his blog.

acegunnr
05-21-2009, 6:32 AM
younger than i expected. :cool2:

He graduated from UCLA with a B.S. in math-computer science at age fifteen.

http://law.ucla.edu/home/index.asp?page=739

GarandFan
05-21-2009, 6:42 AM
Eugene Volokh is a UCLA law prof known for legal opinions of which I cannot recall. He's held in high regard by academia, which really means nothing in the grand scheme of things.

Sir, I respectfully disagree. Having one's scholarship cited multiple times by the Supreme Court really does mean something in the grand scheme of things.

I think your statement above is way off-base.

pullnshoot25
05-21-2009, 9:50 AM
He graduated from UCLA with a B.S. in math-computer science at age fifteen.

http://law.ucla.edu/home/index.asp?page=739

People like him make me feel worthless :(

At least he is Ukrainian! WOO HOO! (1/2 Ukie here :) )

DDT
05-21-2009, 12:35 PM
People like him make me feel worth less :(

At least he is Ukrainian! WOO HOO! (1/2 Ukie here :) )

Fixed it for you. Thought I'd give you a very small boost.

wcnones
05-21-2009, 1:22 PM
Sir, I respectfully disagree. Having one's scholarship cited multiple times by the Supreme Court really does mean something in the grand scheme of things.

I think your statement above is way off-base.

Quick - without the use of google - name me three academics cited multiple times by the SCOTUS!

[insert Final Jeopardy Jingle here]

DDT
05-21-2009, 1:40 PM
Quick - without the use of google - name me three academics cited multiple times by the SCOTUS!

[insert Final Jeopardy Jingle here]

Famous != "something in the grand scheme of things"


Without looking name all of the rights enumerated in the Constitution and BoR. Can't name ALL of them? Do they mean something in the grand scheme of things?

unusedusername
05-21-2009, 2:42 PM
New sig material there...mind if I use it?

Go for it :)

wcnones
05-21-2009, 3:25 PM
Famous != "something in the grand scheme of things"


Without looking name all of the rights enumerated in the Constitution and BoR. Can't name ALL of them? Do they mean something in the grand scheme of things?

speech, association, press, bear arms, free from quartered soldiers, no warrantless seizure of property/search, due process of law, speedy trial, jury trial, self incrimination, double jeopardy, umm ummm ummmmmmmmmm

[brain has flatlined]

edit: damn - missed excessive bail. not too shabby for a flabby guy like me, though.