Articles

10-11-2018 – Government of California Asks NRA to Join it in Fight Against Open Carry

9-11-2018 – Judge Kavanaugh says Concealed Carry Is Not A Right – NRA Lawyer Says He’s Wrong

9-3-2018 – Professors of Law Say 9th Circuit Open Carry Decision is Now The Law – Young v. Hawaii Lawyer Says It Isn’t

8-15-2018 – Why Are Gun-Rights Lawyers Hiding From 9th Circuit Open Carry Decision?

7-30-2018 – When Will We Be Able to Openly Carry a Firearm in the 9th Circuit?

6-20-2018 – The Second Amendment is in a Coma ten years after the Heller decision

5-13-2018 – NRA Loses Fake Open Carry Lawsuit, Files Three More Concealed Carry Lawsuits

3-4-2018 – Is There a Right to Keep and Bear Arms Outside of our Home?

1-13-2018 – The Guns of February, A Story of Two Three-Judge Panels

12-13-2017 – California Open Carry Lawsuit to be Heard by 9th Circuit on February 15, 2018

11-10-2017 – The End of California Concealed Carry

10-15-2017 – Governor Brown Signs Bill Allowing Guns Inside of Gun-Free School Zones

10-12-2017 – Is There a Right to Keep and Bear Arms? 9th Circuit to Decide in 2018

9-12-2017 – NRA Open Carry Lawsuit Opposes Open Carry

9-3-2017 – Supreme Court Long Conference on September 25, 2017

8-14-2017 – A Declaration That Open Carry Is the Right

7-28-2017 – Transcript Released in NRA’s Fake Open Carry Lawsuit

7-24-2017 – 50th Anniversary of California’s Loaded Open Carry Ban

7-12-2017 – Can we Save Our Right to Keep and Bear Arms?

6-27-2017 – Supreme Court Decides to Wait for Another Second Amendment Case

6/15/2017 – The Evil Practice of Carrying Weapons Secretly

6/6/2017 – NRA Lawyer says Odds are Supreme Court will NOT take Concealed Carry Case

6/2/2017 – The NRA Lost Another Second Amendment Appeal Today

5/29/2017 – Lead Plaintiff in Supreme Court Concealed Carry Appeal says Courts are Corrupt

5/23/2017 – Peruta Concealed Carry Lawsuit has Waited 2,768 Days – Supreme Court says Wait Longer

5/20/2017 – Second Amendment Case Peruta vs. California May Strike-Out at Supreme Court

5/03/2017 – Did the NRA Take a Dive in its Fake Open Carry Lawsuit?

5/01/2017 – Supreme Court Again Silent on Second Amendment

04/22/2017 – Supreme Court Math and Concealed Carry in Peruta v. California

04/14/2017 – Federal Judge Upholds Nonexistent Gun Ban

04/12/2017 – Concealed Carry, Incest, Gay Marriage and the Supreme Court

04/05/2017 – Justice Neil Gorsuch and the Second Amendment

3/29/2017 – The Next Second Amendment Handgun Carry Case to Go Down in Flames

3/28/2017 – Federal Judge Tells NRA to Put Up or Shut Up in Open Carry Lawsuit

3/22/2017 – Supreme Court Justice Sotomayor Finally Recognizes the Second Amendment

3/13/2017 – Another Second Amendment Appeal Shot-Down by the 9th Circuit

3/10/2017 – US Supreme Court to Decide Concealed Carry Petition in Two Weeks

3/5/2017 – The Florida Supreme Court Just Handed The US Supreme Court a Second Amendment Case It Can’t Refuse

2/23/2017 – California Asks Supreme Court to Wait For Nichols v. Brown Open Carry Appeal

2/15/2017 – NRA Got Spanked for Valentine’s Day!

2/3/2017 – President Trump’s Supreme Court Nominee Neil Gorsuch

1/24/2017 -A Concealed Carry Case SCOTUS Can’t Refuse

1/23/2017 -President Trump’s Judicial Opportunity and Conundrum

1/13/2017 -NRA Tells Supreme Court Open Carry is Perverse

1/11/2017 – NRA Drops Supreme Court Concealed Carry Appeal

12/30/2016 – NRA Asks US Supreme Court To Hear Two Concealed Carry Lawsuits

12/10/2016 – National Concealed Carry Snake Oil Law Will Fail

11/29/2016 – What Lies Ahead for the Second Amendment?

11/10/2016 – The Second Amendment and President Trump

10/03/2016 – A Federal 9th Circuit Judge Finally Finds a Right to Bear Arms in Public

9/28/2016 – Are You Protected by the Fourth Amendment if You Carry a Firearm?

9/20/2016 – Two Concealed Carry Cases Fire Blanks in U.S. Court of Appeals for the District of Columbia Circuit

9/8/2016 – Another Second Amendment Appeal Crashing and Burning in 9th Circuit

8/24/2016 – Concealed Carry Snake Oil and Kool-Aid Peddlers Leave Town for DC

8/18/2016 – The NRA Files Legal Challenge To California Open Carry Bans – But Not Really

8/17/2016 – The Battle for the Second Amendment Moves to Hawaii

8/15/2016 – There is No Right to Concealed Carry – 9th Circuit Denies Full Court Petitions

8/5/2016 – Did California Lie to 11 Federal Judges in Second Amendment Lawsuits?

7/15/2016 – God Save The US From The Second Amendment Lawyers

7/8/2016 – NRA Segregation Now, Tomorrow, and Forever Position Must Fail

7/4/2016 – Try Recalling California’s Anti-Gun Politicians Before Starting Your Revolution

6/27/2016 – NRA Head Wayne LaPierre Really, Really Hates the Second Amendment

6/24/2016 – Judges Who Uphold Bans on Concealed Carry Are Not the Same as Judges Who Look the Other Way When Police Murder People in the Street

6/15/2016 – Where is the NRA’s California Open Carry Lawsuit?

6/13/2016 – What’s Next for the Right to Carry Firearms in Public?

6/8/2016 – Florida Supreme Court Justices Voice Contempt for the Second Amendment

6/5/2016 – Florida Supreme Court to Hear Second Amendment Carry Case with National Ramifications

5/17/2016 – The Second Amendment and the Concealed Carry Problem

5/11/2016 – Federal Court of Appeals Goes Berserk During Second Amendment Gun Case Hearing

5/10/2016 – California Supreme Court Shoots Itself In Foot Over Gun Case

4/25/2016 – Second Amendment Foundation Files Another Concealed Carry Lawsuit: May Backfire

4/13/2016 – Has the NRA Come to Bury the Second Amendment or to Defend It? –

4/6/2016 – Second Amendment Must Wait A Bit Longer In 9th Circuit

3/26/2016 – Concealed Carry of Concealable Firearm in a Vehicle Now a Crime of Moral Turpitude

3/21/2016 – Supreme Court decision wasn’t about stun guns – It was about the Second Amendment decision in District of Columbia v. Heller which is bad news for concealed carry

3/7/2016 – How to Stop Anti-Gun Bills in California from Becoming Law

3/3/2016 – The California Supreme Court Case Which Could Upend the Gun-Groups Concealed Carry Lawsuits

2/24/2016 – The Second Amendment – Checkmate in Four Moves?

2/10/2016 – Why California’s Waiting Period to Purchase a Firearm Will Be Upheld

2/3/2016 – Florida House of Representatives Passes Handgun Open Carry Bill

1/27/2016 – The NRA Thinks Not Getting Caught In A Lie Is The Same Thing As Telling The Truth

12/11/2015 – Why Were the San Bernardino Shooting Victims Unarmed?

11/20/2015 – Attorney Alan Gura May Have Fumbled Another Second Amendment Case

11/20/2015 – HELP WANTED: Competent Second Amendment Lawyer – Inquire Within

11/9/2015 – The Supreme Court may have Finally Found its Next Second Amendment Case

9/2/2015 – Full Derp Battle over Concealed Carry in District of Columbia

9/1/2015 – National Rifle Association Drops Lawsuit against San Francisco

8/31/2015 – The Future of the Second Amendment in California and Hawaii

8/25/2015 – Yes, America, the Second Amendment is a Universal Right!

8/14/2015 – Will this be the Supreme Court’s Next Second Amendment Case?

7/3/2015 – The Future of Open Carry in California Looks Bright

6/16/2015 – State of California Concedes Second Amendment Extends Outside the Home

6/8/2015 – The Second Amendment is Now in the Hands of these Eleven Judges

6/8/2015 – Supreme Court Won’t Hear Second Amendment Cases Until there is a Circuit Split

5/29/2015 – NRA Opposes Open Carry – NRA Now Takes Credit for New Texas Handgun Open Carry Law

5/26/2015 – Four Years Ago Today: Is Open Carry The Right Guaranteed By The Second Amendment

5/18/2015 – Why the Second Amendment Keeps Losing in Court

5/2/2015 – Black Panther Party Invades California Capitol – 48 Years Ago Today

5/1/2015 – The NRA Rearranges Deck Chairs on the Titanic

4/22/2015 – Chief Judge of 9th Circuit Court of Appeals Grants Motion of Lone Voice Defending the Second Amendment Open Carry Right

4/11/2015 – An Open Letter to the Orange County Register’s Editorial on Concealed Carry

4/03/2015 – Another Shoe Drops on the California Concealed Carry Lawsuits

2/27/2015 – Federal Judge Says No Second Amendment Right To Own Firearms

12/6/2014 – The First Shoe Drops On California Concealed Carry Lawsuits

11/30/2014 – Open Carry Gunfight At The California Corral: Start Of Year Four

11/30/2014 – California Open Carry Gunfight Begins Its Fourth Year

11/12/2014 – California Concealed Carry Permits – The Fat Lady Still Hasn’t Sung in Peruta v. San Diego

10/17/2014 – It may be Legal to Carry a Handgun in the Nation’s Capitol by Christmas

10/3/2014 – Another California Concealed Carry Lawsuit Loses before a Federal Judge

8/18/2014 – District of Columbia asks Court for More Time to Enact New Handgun Carry Ban

8/13/2014 – California Concealed Carry Case Peruta v. San Diego – Poised to Move or Stuck in the Mud?

7/30/2014 – Federal Judge Reluctantly Stays his Ruling in DC Handgun Ban

7/28/2014 – The DC Handgun Carry Decision – Throwing Victory into the Jaws of Defeat

7/26/2014 – Ban on Carrying Firearms in Public is Unconstitutional says DC Judge

7/21/2014 – The non-repeal of D.C., Gun-Control

7/2/2014 – US Supreme Court Still Silent On Second Amendment

6/28/2014 – Federal Judge Says Minorities Barred From Bringing Civil Rights Lawsuits

6/7/2014 – The NRA Supports Open Carry Except When The NRA Opposes Open Carry

6/2/2014 – NRA Lawyer Says California Concealed Carry Decision Likely To Be Overturned

6/1/2014 – NRA leadership Comes Out Of The Closet In Its Opposition To Open Carry

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9th Circuit en banc pool

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9th Circuit Court of Appeals

The 9th circuit court of appeals has been allocated 29 active judgeships.  Typically, only active judges may vote on whether or not to grant an en banc petition and sit on an en banc panel.*  A majority vote of active, non-recused, judges is required to grant a cert petition.

As of July 27, 2018, there are seven vacancies (including the announced future vacancy of N. Randy Smith) on the court which has been allocated 29 active judges leaving 23 active judges, at this time, who are eligible to vote on en banc petitions.  On August 11, 2018, Judge Smith takes Senior Status which leaves him ineligible to vote on any en banc petition except, possibly, for those cases where he was a member of the three-judge panel which delivered the decision be voted on.  In any event, it will still take a majority vote to grant the petition.

We all have our personal opinions on which way a particular judge who sits on a 2A case is likely to vote.  Most people who have opinions have uninformed opinions.  I base my opinions on decisions they have authored and on their behavior during oral argument.  For example, Judge Fletcher did not hide his contempt for the Heller decision during the oral argument in Radich v. Guerrero but nonetheless voted as if he were bound by the decision.  Circuit Judge Clifton, who wrote the dissent in Young v. Hawaii, left no doubt that he would vote to reverse the Young v. Hawaii decision were he to sit on the en banc panel.  Judge Fletcher wrote the en banc majority decision in Peruta v. San Diego which makes him more likely than not to reverse the Young decision.

Judges Graber and McKeown have no problem with virtual bans based on their concurrence in Peruta v. San Diego (en banc) in which Chief Judge Thomas joined and so I don’t think they would have any problem with de facto or statutory bans.  My sense of Judge Thomas’ position is he would have no problem with a law which banned the carrying of loaded firearms in town and, of course, with the requirement that they are carried openly or even a complete ban on carrying in cities but I am not so sure he would vote to uphold the de facto ban on Open Carry in Hawaii (or the statutory bans on Open Carry in California) which apply statewide. I think Judge Paez and Owens would vote to overturn the decision, they too sat on the Peruta en banc panel and were in the majority.  Judge N.R. Smith was a dissenter in the en banc Peruta decision but he will be a Senior Status Judge no longer eligible to vote on the Young v. Hawaii en banc petition or sua sponte call, if there is one.

Judges Ikuta, Callahan and Bea would very likely vote to uphold the Young v. Hawaii decision.  Judge Gould filed a dissent to the denial of a Second Amendment en banc petition back in 2002 which, if he still holds those views, he is likely to vote to uphold the Young decision.

Despite being an Obama appointee, Judge Christen is razor sharp.  It will be very interesting to see how she votes in the en banc decision, if there is one.  Judge O’Scannlain was very careful not to write a decision in Young v. Hawaii which conflicts with any prior Second Amendment decision in this circuit so that eliminates the first option for asking the case be reheard before an en banc panel.  The second option is that this decision involves a question of exceptional importance, which it does except that the court tends to interpret that to mean a decision which creates a split with one or more Federal courts of appeal.  Remember that footnote in Young v. Hawaii where Judge O’Scannlain wrote that he was not deciding the concealed carry question?  By not deciding he avoided creating a circuit split with the Wrenn decision which is an obstacle to granting an en banc petition and an obstacle to granting a cert petition.

The Chief Judge serves on all en banc panels.  The other ten judges are drawn at random from the pool of active (and senior judges who sat on the three-judge panel), non-recused judges which consists of:

74 Chief Judge Sidney Runyan Thomas Billings, MT 1953 1996–present 2014–present Clinton
76 Circuit Judge Susan P. Graber Portland, OR 1949 1998–present Clinton
77 Circuit Judge M. Margaret McKeown San Diego, CA 1951 1998–present Clinton
78 Circuit Judge Kim McLane Wardlaw Pasadena, CA 1954 1998–present Clinton
79 Circuit Judge William A. Fletcher San Francisco, CA 1945 1998–present Clinton
81 Circuit Judge Ronald M. Gould Seattle, WA 1946 1999–present Clinton
82 Circuit Judge Richard A. Paez Pasadena, CA 1947 2000–present Clinton
83 Circuit Judge Marsha S. Berzon San Francisco, CA 1945 2000–present Clinton
85 Circuit Judge Johnnie B. Rawlinson Las Vegas, NV 1952 2000–present Clinton
87 Circuit Judge Jay Bybee Las Vegas, NV 1953 2003–present G.W. Bush
88 Circuit Judge Consuelo María Callahan Sacramento, CA 1950 2003–present G.W. Bush
89 Circuit Judge Carlos Bea San Francisco, CA 1934 2003–present G.W. Bush
90 Circuit Judge Milan Smith El Segundo, CA 1942 2006–present G.W. Bush
91 Circuit Judge Sandra Segal Ikuta Pasadena, CA 1954 2006–present G.W. Bush
93 Circuit Judge Mary H. Murguia Phoenix, AZ 1960 2011–present Obama
94 Circuit Judge Morgan Christen Anchorage, AK 1961 2012–present Obama
95 Circuit Judge Jacqueline Nguyen Pasadena, CA 1965 2012–present Obama
96 Circuit Judge Paul J. Watford Pasadena, CA 1967 2012–present Obama
97 Circuit Judge Andrew D. Hurwitz Phoenix, AZ 1947 2012–present Obama
98 Circuit Judge John B. Owens San Diego, CA 1971 2014–present Obama
99 Circuit Judge Michelle Friedland San Jose, CA 1972 2014–present Obama
100 Circuit Judge Mark J. Bennett Honolulu, HI 1953 2018–present Trump

Probable Vote Against 2A Open Carry

Possible Vote Against 2A Open Carry – Note: If the Young v. Hawaii decision is overturned and the Court (en banc or SCOTUS) holds that the Second Amendment does not exist even one inch outside the door to our homes then that decision will be binding on my three-judge panel and I lose my Second Amendment claim likely in its entirety but perhaps not in the curtilage of our homes which, for most people in California, is all of our private residential property.

Probable Vote For 2A Open Carry

Possible Vote For 2A Open Carry – Note: If the Young v. Hawaii decision stands then it is almost certain than Judges Berzon and Bybee will decide my California Open Carry appeal in my favor if for no other reason than they are assigned to my appeal and I don’t see either of them deliberately creating an intra-circuit split in my appeal.  It’s possible, but unlikely, probably highly unlikely.

Senior Circuit Judges O’Scannlain and Clifton sat on the Young v. Hawaii panel, therefore they can be in the en banc pool of judges if they want to be and if they notify the clerk before the 10 judges are drawn at random.

FRAP 35. EN BANC DETERMINATION
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.

(c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing. (14 days)

CIRCUIT RULE 35-1. PETITION FOR REHEARING EN BANC
Where a petition for rehearing en banc is made pursuant to FRAP 35(b) in conjunction with a petition for panel rehearing, a reference to the petition for rehearing en banc, as well as to the
petition for panel rehearing, shall appear on the cover of the petition. (Rev. 12/1/09) When the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for petitioning for rehearing en banc.

 

* In criminal cases, a Senior Status Judge who sat on the panel in which a vote on an en banc petition is to take place “An eligible senior judge is one who sat on the panel whose decision is subject to review.” pursuant to Circuit Rule 22-2(d).  I do not know if this applies to civil cases as well.




As of March 29, 2018, there are eight vacancies (including announced future vacancy of N. Randy Smith) on the court which has been allocated 29 active judges leaving 21 active judges who are eligible to vote on en banc petitions.

On March 29, 2018, Judge Reinhardt died of a heart attack.  His death created an eighth vacancy.  As of this date, President Trump has nominated two people to the bench.  One of whom is enthusiastically supported by the two, far-leftwing Federal Senators from Hawaii.  President Trump’s other nominee has never been a judge and so we have no idea how he would rule on any topic.

Four of the vacancies are judges who had been nominated by Democrat Presidents.

Vacancies and pending nominations as of March 29, 2018

Seat Prior Judge’s Duty Station Seat last held by Vacancy reason Date of vacancy Nominee Date of nomination
19 Woodland Hills, CA Harry Pregerson Senior Status December 11, 2015
13 Phoenix, AZ Barry Silverman October 11, 2016
10 Portland, OR Diarmuid O’Scannlain December 31, 2016 Ryan Bounds January 8, 2018
24 Honolulu, HI Richard R. Clifton Mark J. Bennett February 15, 2018
26 Pasadena, CA Alex Kozinski Retirement December 18, 2017
14 Seattle, WA Richard C. Tallman Senior Status March 3, 2018
23 Los Angeles, CA Stephen Reinhardt Death March 29, 2018
3 Pocatello, ID N. Randy Smith Senior Status August 11, 2018[19]

As of March 29, 2018, the judges on the court are:

# Title Judge Duty station Born Term of service Appointed by
Active Chief Senior
74 Chief Judge Sidney Runyan Thomas Billings, MT 1953 1996–present 2014–present Clinton
76 Circuit Judge Susan P. Graber Portland, OR 1949 1998–present Clinton
77 Circuit Judge M. Margaret McKeown San Diego, CA 1951 1998–present Clinton
78 Circuit Judge Kim McLane Wardlaw Pasadena, CA 1954 1998–present Clinton
79 Circuit Judge William A. Fletcher San Francisco, CA 1945 1998–present Clinton
81 Circuit Judge Ronald M. Gould Seattle, WA 1946 1999–present Clinton
82 Circuit Judge Richard A. Paez Pasadena, CA 1947 2000–present Clinton
83 Circuit Judge Marsha S. Berzon San Francisco, CA 1945 2000–present Clinton
85 Circuit Judge Johnnie B. Rawlinson Las Vegas, NV 1952 2000–present Clinton
87 Circuit Judge Jay Bybee Las Vegas, NV 1953 2003–present G.W. Bush
88 Circuit Judge Consuelo María Callahan Sacramento, CA 1950 2003–present G.W. Bush
89 Circuit Judge Carlos Bea San Francisco, CA 1934 2003–present G.W. Bush
90 Circuit Judge Milan Smith El Segundo, CA 1942 2006–present G.W. Bush
91 Circuit Judge Sandra Segal Ikuta Pasadena, CA 1954 2006–present G.W. Bush
92 Circuit Judge N. Randy Smith Pocatello, ID 1949 2007–present G.W. Bush
93 Circuit Judge Mary H. Murguia Phoenix, AZ 1960 2011–present Obama
94 Circuit Judge Morgan Christen Anchorage, AK 1961 2012–present Obama
95 Circuit Judge Jacqueline Nguyen Pasadena, CA 1965 2012–present Obama
96 Circuit Judge Paul J. Watford Pasadena, CA 1967 2012–present Obama
97 Circuit Judge Andrew D. Hurwitz Phoenix, AZ 1947 2012–present Obama
98 Circuit Judge John B. Owens San Diego, CA 1971 2014–present Obama
99 Circuit Judge Michelle Friedland San Jose, CA 1972 2014–present Obama
100 Circuit Judge vacant
101 Circuit Judge vacant
102 Circuit Judge vacant
103 Circuit Judge vacant
104 Circuit Judge vacant
105 Circuit Judge vacant
106 Circuit Judge vacant


As of December 18, 2017, the judges on the court are:

# Title Judge Duty station Born Term of service Appointed by
Active Chief Senior
74 Chief Judge Sidney Runyan Thomas Billings, MT 1953 1996–present 2014–present Clinton
57 Circuit Judge Stephen Reinhardt Los Angeles, CA 1931 1980–present Carter
76 Circuit Judge Susan P. Graber Portland, OR 1949 1998–present Clinton
77 Circuit Judge M. Margaret McKeown San Diego, CA 1951 1998–present Clinton
78 Circuit Judge Kim McLane Wardlaw Pasadena, CA 1954 1998–present Clinton
79 Circuit Judge William A. Fletcher San Francisco, CA 1945 1998–present Clinton
81 Circuit Judge Ronald M. Gould Seattle, WA 1946 1999–present Clinton
82 Circuit Judge Richard A. Paez Pasadena, CA 1947 2000–present Clinton
83 Circuit Judge Marsha S. Berzon San Francisco, CA 1945 2000–present Clinton
84 Circuit Judge Richard C. Tallman Seattle, WA 1953 2000–present Clinton
85 Circuit Judge Johnnie B. Rawlinson Las Vegas, NV 1952 2000–present Clinton
87 Circuit Judge Jay Bybee Las Vegas, NV 1953 2003–present G.W. Bush
88 Circuit Judge Consuelo María Callahan Sacramento, CA 1950 2003–present G.W. Bush
89 Circuit Judge Carlos Bea San Francisco, CA 1934 2003–present G.W. Bush
90 Circuit Judge Milan D. Smith, Jr. El Segundo, CA 1942 2006–present G.W. Bush
91 Circuit Judge Sandra Segal Ikuta Pasadena, CA 1954 2006–present G.W. Bush
92 Circuit Judge N. Randy Smith Pocatello, ID 1949 2007–present G.W. Bush
93 Circuit Judge Mary H. Murguia Phoenix, AZ 1960 2011–present Obama
94 Circuit Judge Morgan Christen Anchorage, AK 1961 2012–present Obama
95 Circuit Judge Jacqueline Nguyen Pasadena, CA 1965 2012–present Obama
96 Circuit Judge Paul J. Watford Pasadena, CA 1967 2012–present Obama
97 Circuit Judge Andrew D. Hurwitz Phoenix, AZ 1947 2012–present Obama
98 Circuit Judge John B. Owens San Diego, CA 1971 2014–present Obama
99 Circuit Judge Michelle Friedland San Jose, CA 1972 2014–present Obama

Active Judges who are 65 Years of Age or Older and who have not Announced Retirement or Senior Status: DEM REP

Stephen Reinhardt – 86 Died on March 29, 2018.  Age 87.

Carlos Bea – 83

William A. Fletcher – 72

Marsha S. Berzon – 72

Ronald Gould – 70 or 71

Richard Paez – 70

Andrew D. Hurwitz – 70

Susan P. Graber – 68

Consuelo María Callahan – 67

M. Margaret McKeown – 66

Johnnie B. Rawlinson – 65

Federal Judicial Vacancies.




Seven active judges were appointed by Obama.  I think it is fair to say that none of them is going to vote for the Full Court petitions in Peruta.  One of the Obama appointees was on the en banc panel and sided with the six other judges in the majority.  I don’t think the judges in the en banc Peruta majority are going to vote for the Full Court petitions.  Pregerson and Silverman taking senior status makes them ineligible to vote for the petitions.  Granting the petitions will require a minimum of 14 active judges voting to grant the petitions.  Take a look at the table below and see if you can find 14 active judges who will vote to grant the Full Court petitions.  I can’t.




I wrote the following paragraph before the en banc decision in Peruta.

We now know who the eleven judges are who will sit on the Peruta v. San Diego/Richards v. Prieto en banc panel.  There never were six judges to vote in favor of Peruta/Richards.  I’ve written this article predicting which way each judge will vote and why.  My assumptions are very conservative (“conservative” with a small ‘c’).  For example, I assumed that the two judges who voted the way they did in Peruta (Chief Judge Thomas against and Judge Callahan for) will not change their minds.  Likewise, the two judges who voted to adopt the two-step historical inquiry framework won’t change their mind.  The lone Obama appointee certainly isn’t going to vote for Peruta/Richards.

I wrote the following paragraph after the en banc decision.

Now that we have the decision it was a very odd alignment.  All seven judges in the majority were Democrats and their decision was an Originalist decision the late Justice Scalia would have been proud of whereas three of the four judges dissenting were Republican appointees who, if they had had their way, would have written a majority opinion which would have made Justice Scalia turn over in his grave.




Update December 15, 2016 by Charles Nichols – President of California Right To Carry –  In addition to the four vacancies President Trump will be able to fill with pro-gun judges starting on Inauguration Day, there is a good opportunity for him to fill additional vacancies during his time in office.  It is often said that the 9th circuit court of appeals is the most liberal court.  This may be true but it is certain that all but five of the current active judges on the court will be 65 or over before the midterm elections.

# Title Judge Duty station Born Term of service Appointed by
Active Chief Senior
74 Chief Judge Sidney Runyan Thomas Billings, MT 1953 1996–present 2014–present Clinton
57 Circuit Judge Stephen Reinhardt Los Angeles, CA 1931 1980–present Carter
62 Circuit Judge Alex Kozinski Pasadena, CA 1950 1985–present 2007–2014 Reagan
76 Circuit Judge Susan P. Graber Portland, OR 1949 1998–present Clinton
77 Circuit Judge M. Margaret McKeown San Diego, CA 1951 1998–present Clinton
78 Circuit Judge Kim McLane Wardlaw Pasadena, CA 1954 1998–present Clinton
79 Circuit Judge William A. Fletcher San Francisco, CA 1945 1998–present Clinton
81 Circuit Judge Ronald M. Gould Seattle, WA 1946 1999–present Clinton
82 Circuit Judge Richard A. Paez Pasadena, CA 1947 2000–present Clinton
83 Circuit Judge Marsha S. Berzon San Francisco, CA 1945 2000–present Clinton
84 Circuit Judge Richard C. Tallman Seattle, WA 1953 2000–present Clinton
85 Circuit Judge Johnnie B. Rawlinson Las Vegas, NV 1952 2000–present Clinton
87 Circuit Judge Jay Bybee Las Vegas, NV 1953 2003–present G.W. Bush
88 Circuit Judge Consuelo Maria Callahan Sacramento, CA 1950 2003–present G.W. Bush
89 Circuit Judge Carlos T. Bea San Francisco, CA 1934 2003–present G.W. Bush
90 Circuit Judge Milan D. Smith, Jr. El Segundo, CA 1942 2006–present G.W. Bush
91 Circuit Judge Sandra Segal Ikuta Pasadena, CA 1954 2006–present G.W. Bush
92 Circuit Judge N. Randy Smith Pocatello, ID 1949 2007–present G.W. Bush
93 Circuit Judge Mary H. Murguia Phoenix, AZ 1960 2011–present Obama
94 Circuit Judge Morgan Christen Anchorage, AK 1961 2012–present Obama
95 Circuit Judge Jacqueline Nguyen Pasadena, CA 1965 2012–present Obama
96 Circuit Judge Paul J. Watford Pasadena, CA 1967 2012–present Obama
97 Circuit Judge Andrew D. Hurwitz Phoenix, AZ 1947 2012–present Obama
98 Circuit Judge John B. Owens San Diego, CA 1971 2014–present Obama
99 Circuit Judge Michelle T. Friedland San Francisco, CA 1972 2014–present Obama

Judicial Vacancies on the Federal Courts

Update November 8, 2016 by Charles Nichols – President of California Right To Carry –  I forgot to mention that Judge O’Scannlain is taking senior status effective December 31, 2016, which means after the end of the year he is no longer allowed to vote on whether or not to grant an en banc petition.

Update June 29, 2016 by Charles Nichols – President of California Right To Carry –  I have updated the list of Circuit Court judges in the table below who were active judges, and thus eligible to vote on the last en banc petitions.  Three of them have taken senior status and are thus ineligible to vote on the current en banc petitions by Peruta and Richards.  Those who are no longer active have a line drawn through their names.  Also, in the far right column of the table I have indicated in black bold those judges who voted in the en banc majority and I have indicated in pretty pink those judges who would ban Open Carry either in the en banc Peruta minority or in the vacated, sharply divided three judge panel decision in Peruta/Richards.

Update June 26, 2016 –  Circuit Judge Pregerson took senior status late last year as did Silverman and Clifton.  This means there are now 26 active judges out of the 29 allotted to the court.

Seat Seat last held by Vacancy reason Date of vacancy Nominee Date of nomination
19 Harry Pregerson Senior Status December 11, 2015 Lucy H. Koh[17] February 25, 2016
13 Barry Silverman Senior Status October 11, 2016
24 Richard R. Clifton Senior Status December 31, 2016[18]

Update February 2, 2016 –  Circuit Judge Richard R. Clifton will take senior status as of 12/31/2016.  Here is the announcement.  This will create a vacancy on this court of appeals to be filled by nomination by the next President and confirmation by the next Senate.

Update August 4, 2014 –  Judge Sidney Thomas, a Clinton appointee, will become the Chief Judge for the 9th Circuit Court of Appeals when Judge Kozinski’s term expires on December 1, 2014.  Judge Thomas was the dissenting vote in Peruta v. San Diego.  The Chief Judge presides over all en banc hearings which means we have not only lost a pro Second Amendment vote in Judge Kozinski but we can count on his replacement, Judge Thomas, as being a vote against the Second Amendment.  Judge Kozinski will remain a circuit court judge.  He is not retiring when he steps down.

Update April 29, 2014 –  The Senate confirmed President Obama’s nomination of San Francisco attorney Michelle Friedland to the Ninth U.S. Circuit Court of Appeals on a near party-line vote Monday, giving the nation’s largest appellate court its full allotment of 29 judges for the first time.  The vote was 51-40, the bare majority needed.  Read more here.

9th Circuit Court of Appeals Active Judges and Second Amendment decisions they’ve heard.

 Only Active Judges can sit on en banc panels.

There are only six of the 27 potential en banc judges who have never had a Second Amendment case come before them.  Five were recently appointed by Obama and so if they wind up being chosen for an en banc panel, you know what side they are on.

The rest have a Second Amendment record to go on.  Individual decisions can be accessed on line for free by clicking here and copy and pasting the full citation of the decision into the search box.

Chief Judge Kozinski will be on any en banc panels convened before his term expires at the end of this year (12-1-2014).  Of the 27 Active Judges listed below, ten will be randomly chosen to sit on any en banc panel until they resign or become Senior Status.

Having read all of these cases in which the Active judges were involved, I am skeptical that either Peruta or Richards will survive an en banc appeal.

There are other things which could happen.  The Court of Appeals could certify a question either to the California Supreme Court or to the United States Supreme Court.

Name Initials Status Chambers Appt. Date Appointed By
Alex Kozinski AK Chief Judge Pasadena 11/07/85 Reagan Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010
Andrew D. Hurwitz ADH Circuit Judge Phoenix 06/27/12 Obama
Barry G. Silverman BGS Senior Status Phoenix 02/04/98 Clinton US v. Schrag, Court of Appeals, 9th Circuit 2013 US v. Parker, Court of Appeals, 9th Circuit 2010 Peruta en banc minority
Carlos T. Bea CTB Circuit Judge San Francisco 10/01/03 Bush US v. Chovan, 735 F. 3d 1127 – Court of Appeals, 9th Circuit 2013 Montana Shooting Sports Ass’n v. Holder, 727 F. 3d 975 – Court of Appeals, 9th Circuit 2013 US v. Dugan, 657 F. 3d 998 – Court of Appeals, 9th Circuit 2011 Peruta en banc minority
Consuelo M. Callahan CMC Circuit Judge Sacramento 05/28/03 Bush US v. Schrag, Court of Appeals, 9th Circuit 2013 Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 Peruta en banc minority
Diarmuid F. O’Scannlain DFO Senior Status as of 12/31/2016 Portland 09/26/86 Reagan Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 US v. Dugan, 657 F. 3d 998 – Court of Appeals, 9th Circuit 2011 Nordyke v. King, 644 F. 3d 776 – Court of Appeals, 9th Circuit 2011 Nordyke v. King, Court of Appeals, 9th Circuit 2009 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010 Nordyke v. King, 563 F. 3d 439 – Court of Appeals, 9th Circuit 2009 Peruta vacated majority
Harry Pregerson HP Senior Status Woodland Hills 11/02/79 Carter US v. Chovan, 735 F. 3d 1127 – Court of Appeals, 9th Circuit 2013 Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010 Peruta en banc majority
Jacqueline H. Nguyen JHN Circuit Judge Pasadena 05/14/12 Obama
Jay S. Bybee JSB Circuit Judge Las Vegas 03/21/03 Bush Baker v. Holder, Court of Appeals, 9th Circuit 2012
John B. Owens JBO Circuit Judge San Diego 04/02/14 Obama Peruta en banc majority
Johnnie B. Rawlinson JBR Circuit Judge Las Vegas 07/26/00 Clinton FYOCK v. City of Sunnyvale, Court of Appeals, 9th Circuit 2015
Kim McLane Wardlaw KMW Circuit Judge Pasadena 08/03/98 Clinton PETRAMALA v. United States Department of Justice, Court of Appeals, 9th Circuit 2012 Baker v. Holder, Court of Appeals, 9th Circuit 2012 US v. Duckett, Court of Appeals, 9th Circuit 2010
M. Margaret McKeown MMM Circuit Judge San Diego 04/08/98 Clinton US v. Hatfield, Court of Appeals, 9th Circuit 2010 Peruta en banc majority & Concurrence
Marsha S. Berzon MSB Circuit Judge San Francisco 03/16/00 Clinton Mehl v. Blanas, Court of Appeals, 9th Circuit 2013
Mary H. Murguia MHM Circuit Judge Phoenix 01/04/11 Obama
Milan D. Smith, Jr. MDS Circuit Judge El Segundo 05/18/06 Bush Jackson v. CITY & CNTY. OF SAN FRANCISCO, Court of Appeals, 9th Circuit 2014 US v. Small, Court of Appeals, 9th Circuit 2012 US v. Henry, 688 F. 3d 637 – Court of Appeals, 9th Circuit 2012 Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 US v. Potter, 630 F. 3d 1260 – Court of Appeals, 9th Circuit 2011 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010 US v. Vongxay, 594 F. 3d 1111 – Court of Appeals, 9th Circuit 2010
Morgan Christen MBC Circuit Judge Anchorage 01/11/12 Obama US v. Small, Court of Appeals, 9th Circuit 2012  US v. Phillips, Court of Appeals, 9th Circuit 2016
N. Randy Smith NRS Circuit Judge Pocatello 03/19/07 Bush PETRAMALA v. United States Department of Justice, Court of Appeals, 9th Circuit 2012 Peruta en banc minority
Paul J. Watford PJW Circuit Judge Pasadena 05/22/12 Obama
Richard A. Paez RAP Circuit Judge Pasadena 03/14/00 Clinton US v. Morsette, 622 F. 3d 1200 – Court of Appeals, 9th Circuit 2010 US v. Hatfield, Court of Appeals, 9th Circuit 2010 Peruta en banc majority
Richard C. Tallman RCT Circuit Judge Seattle 05/25/00 Clinton Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010

Wilson v. Lynch, Court of Appeals, 9th Circuit 2016

Based on the oral arguments in S. Wilson v. Loretta E. Lynch 14-15700 it is pretty clear that Judge Tallman could not care less about the Second Amendment.
Richard R. Clifton RRC Senior Status Honolulu 07/30/02 Bush Montana Shooting Sports Ass’n v. Holder, 727 F. 3d 975 – Court of Appeals, 9th Circuit 2013 PETRAMALA v. United States Department of Justice, Court of Appeals, 9th Circuit 2012
Ronald M. Gould RMG Circuit Judge Seattle 11/22/99 Clinton Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 Nordyke v. King, 644 F. 3d 776 – Court of Appeals, 9th Circuit 2011 Nordyke v. King, Court of Appeals, 9th Circuit 2009 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010 Nordyke v. King, 563 F. 3d 439 – Court of Appeals, 9th Circuit 2009
Sandra S. Ikuta SSI Circuit Judge Pasadena 06/23/06 Bush Jackson v. CITY & CNTY. OF SAN FRANCISCO, Court of Appeals, 9th Circuit 2014 Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 US v. Duckett, Court of Appeals, 9th Circuit 2010 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010
Sidney R. Thomas SRT Circuit Judge Billings 01/04/96 Clinton US v. Parker, Court of Appeals, 9th Circuit 2010 Peruta en banc majority & Concurrence
Stephen Reinhardt SR Circuit Judge Los Angeles 09/11/80 Carter Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 US v. Morsette, 622 F. 3d 1200 – Court of Appeals, 9th Circuit 2010 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010 Silveira v. Lockyer, 312 F. 3d 1052 – Court of Appeals, 9th Circuit 2002
Susan P. Graber SPG Circuit Judge Portland 03/19/98 Clinton Nordyke v. King, 681 F. 3d 1041 – Court of Appeals, 9th Circuit 2012 US v. Dugan, 657 F. 3d 998 – Court of Appeals, 9th Circuit 2011 US v. Potter, 630 F. 3d 1260 – Court of Appeals, 9th Circuit 2011 US v. Morsette, 622 F. 3d 1200 – Court of Appeals, 9th Circuit 2010 Nordyke v. King, 611 F. 3d 1015 – Court of Appeals, 9th Circuit 2010

Wilson v. Lynch, Court of Appeals, 9th Circuit 2016

Peruta en banc majority & Concurrence
William A. Fletcher WAF Circuit Judge San Francisco 10/09/98 Clinton US v. Schrag, Court of Appeals, 9th Circuit 2013 US v. Henry, 688 F. 3d 637 – Court of Appeals, 9th Circuit 2012 US v. McCartney, Court of Appeals, 9th Circuit 2009 Peruta en banc majority
Michelle T. Friedland Circuit Judge San Francisco 4/29/14 Obama

Only Active Judges sit on en banc panels.

The Judges of this Court in Order of Seniority

Updated April 2014
Name Initials Status Chambers Appt. Date Appointed By
1. Alex Kozinski AK Chief Judge Pasadena 11/07/85 Reagan
2. Alfred T. Goodwin ATG Senior Circuit Judge Pasadena 11/30/71 Nixon
3. J. Clifford Wallace JCW Senior Circuit Judge San Diego 06/28/72 Nixon
4. Procter Hug, Jr. PRH Senior Circuit Judge Reno 09/15/77 Carter
5. Mary M. Schroeder MMS Senior Circuit Judge Phoenix 09/26/79 Carter
6. Jerome Farris JF Senior Circuit Judge Seattle 09/27/79 Carter
7. Harry Pregerson HP Circuit Judge Woodland Hills 11/02/79 Carter
8. Arthur L. Alarcon ALA Senior Circuit Judge Los Angeles 11/02/79 Carter
9. Dorothy W. Nelson DWN Senior Circuit Judge Pasadena 12/20/79 Carter
10. William C. Canby, Jr. WCC Senior Circuit Judge Phoenix 05/23/80 Carter
11. Stephen Reinhardt SR Circuit Judge Los Angeles 09/11/80 Carter
Name Initials Status Chambers Appt. Date Appointed By
12. John T. Noonan, Jr. JTN Senior Circuit Judge San Francisco 12/17/85 Reagan
13. Diarmuid F. O’Scannlain DFO Circuit Judge Portland 09/26/86 Reagan
14. Edward Leavy EL Senior Circuit Judge Portland 03/23/87 Reagan
15. Stephen S. Trott SST Senior Circuit Judge Boise 03/25/88 Reagan
16. Ferdinand F. Fernandez FFF Senior Circuit Judge Pasadena 05/22/89 Bush
17. Andrew J. Kleinfeld AJK Senior Circuit Judge Fairbanks 09/16/91 Bush
18. Michael Daly Hawkins MDH Senior Circuit Judge Phoenix 09/15/94 Clinton
19. A. Wallace Tashima AWT Senior Circuit Judge Pasadena 01/04/96 Clinton
20. Sidney R. Thomas SRT Circuit Judge Billings 01/04/96 Clinton
21. Barry G. Silverman BGS Circuit Judge Phoenix 02/04/98 Clinton
22. Susan P. Graber SPG Circuit Judge Portland 03/19/98 Clinton
Name Initials Status Chambers Appt. Date Appointed By
23. M. Margaret McKeown MMM Circuit Judge San Diego 04/08/98 Clinton
24. Kim McLane Wardlaw KMW Circuit Judge Pasadena 08/03/98 Clinton
25. William A. Fletcher WAF Circuit Judge San Francisco 10/09/98 Clinton
26. Raymond C. Fisher RCF Senior Circuit Judge Pasadena 10/12/99 Clinton
27. Ronald M. Gould RMG Circuit Judge Seattle 11/22/99 Clinton
28. Richard A. Paez RAP Circuit Judge Pasadena 03/14/00 Clinton
29. Marsha S. Berzon MSB Circuit Judge San Francisco 03/16/00 Clinton
30. Richard C. Tallman RCT Circuit Judge Seattle 05/25/00 Clinton
31. Johnnie B. Rawlinson JBR Circuit Judge Las Vegas 07/26/00 Clinton
32. Richard R. Clifton RRC Circuit Judge Honolulu 07/30/02 Bush
33. Jay S. Bybee JSB Circuit Judge Las Vegas 03/21/03 Bush
34. Consuelo M. Callahan CMC Circuit Judge Sacramento 05/28/03 Bush
35. Carlos T. Bea CTB Circuit Judge San Francisco 10/01/03 Bush
36. Milan D. Smith, Jr. MDS Circuit Judge El Segundo 05/18/06 Bush
37. Sandra S. Ikuta SSI Circuit Judge Pasadena 06/23/06 Bush
38. N. Randy Smith NRS Circuit Judge Pocatello 03/19/07 Bush
39. Mary H. Murguia MHM Circuit Judge Phoenix 01/04/11 Obama
40. Morgan Christen MBC Circuit Judge Anchorage 01/11/12 Obama
41. Jacqueline H. Nguyen JHN Circuit Judge Pasadena 05/14/12 Obama
42. Paul J. Watford PJW Circuit Judge Pasadena 05/22/12 Obama
43. Andrew D. Hurwitz ADH Circuit Judge Phoenix 06/27/12 Obama
44. John B. Owens JBO Circuit Judge San Diego 04/02/14 Obama
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