Becerra pushes en banc review in 2 major Second Amendment cases

California's attorney general is pushing the 9th U.S. Circuit Court of Appeals to hear two major Second Amendment cases en banc in an effort to clarify federal case law regarding a state's ability to regulate the public carry of firearms.

In an unusual move, state Attorney General Xavier Becerra urged the court to immediately take a California case currently on appeal en banc, despite the fact that a three-judge panel has not yet issued an opinion in the case [filing attached below]. Briefing has not been completed in the case.

"This case involves a question of exceptional importance: whether California's system of regulating where and how people may carry firearms in public places is consistent with the Second Amendment," Deputy Solicitor General Samuel P. Siegel wrote in the Friday request.

In May, U.S. District Judge John A. Kronstadt dismissed a suit seeking to find unconstitutional California's regulation of the open and concealed carrying of firearms in public as well as Los Angeles County's policies for issuing concealed carry permits. Flanagan v. Becerra, 18-55717 (9th Cir., filed Aug. 17, 2016).

Plaintiffs in the case were denied concealed carry permits they requested claiming they had good cause to need firearms in self-defense. They argued the Constitution, as interpreted by the landmark decision in District of Columbia v. Heller, protected a right to openly carry firearms in public.

Kronstadt's decision, now on appeal, resides in a complicated landscape of 9th Circuit gun regulation case law.

In 2016, an en banc panel of the 9th Circuit ruled the Second Amendment does not establish a "right for members of the general public to carry concealed firearms in public." Peruta v. County of San Diego, 824 F.3d 919, 927 (9th Cir. 2016).

The panel did not, however, address whether the amendment protects open carry rights.

After Kronstadt dismissed the Flanagan suit, a split, conservative-leaning three-judge panel struck down in July Hawaii's licensing system for the open carrying of firearms as unconstitutional. Young v. State of Hawaii et al., 2018 DJDAR 7182 (9th Cir. July 24, 2018).

The majority opinion endorsed a Second Amendment interpretation similar to the theory espoused by the Flanagan plaintiffs.

Becerra supports Hawaii's request to reconsider the Young case en banc as well, and he isn't alone.

Plaintiffs in the Flanagan litigation agree with the California attorney general that the case should go en banc immediately, if the 9th Circuit does decide to revisit Young in a full court setting.

"My clients agree that if the court decides to reconsider the Young decision en banc, the Flanagan case should be heard simultaneously en banc to consider the constitutionality of California's ban on bearing arms for self-defense alongside Hawaii's," Chuck D. Michel, senior partner at Michel & Associates PC, said in an email Friday.

Becerra has requested, though, that if the Young case is vacated and remanded, it would be appropriate to continue to a traditional three-judge panel in the Flanagan litigation.

Whether the 9th Circuit will revisit Young en banc remains to be seen.

The three-judge panel decision was authored by conservative stalwart Judge Diarmuid O'Scannlain.

"It is apparent from the face of the text that the amendment protects the right not only to 'keep' but to also 'bear arms," he wrote in the Young opinion, noting the Hawaii scheme made it virtually impossible to actually receive an open carry permit.

O'Scannlain wrote the original Peruta decision striking down California's concealed carry permit system, a decision which the 9th Circuit reversed while sitting en banc.

The Young decision could be on shaky ground; it was not unanimous.

Judge Richard Clifton, a Republican appointee, dissented from O'Scannlain opinion, suggesting that it contravened legal theories articulated by a majority of judges who sat on the en banc Peruta panel.