Recently, the NRA announced that it would “score” the Sotomayor vote in determining where each lawmaker stands on the NRA’s pro-gun agenda, a curious decision since Judge Sotomayor’s entire record on the Second Amendment is consistent with mandatory Supreme Court precedent. Since then, the NRA launched a smear campaign against the judge, accusing her of “deliberately misread[ing] Supreme Court precedent” in order to undermine the NRA’s pet issue.
The reality, of course, couldn’t be further from the truth. Even a Seventh Circuit panel, which was dominated by ultra-conservative Judges Richard Posner and Frank Easterbrook, sided with Sotomayor–agreeing that only the Supreme Court has the power to overrule its longstanding precedent holding that the Second Amendment does not apply to the states.
Nevertheless, there was one outlier court, the Ninth Circuit, which had disagreed with Sotomayor’s decision and claimed that it possessed the unilateral authority to act contrary to the Supreme Court’s longstanding rule. That case, Nordyke v. King, was the centerpiece of the NRA’s claim that Sotomayor somehow misread the law. There’s only one problem for the NRA, as of today Nordyke no longer exists.
This is because the Ninth Circuit announced that they will hear Nordyke “en banc,” meaning that the case will be reheared by a larger panel of judges than the original three-judge panel which initally decided that case. En banc rehearings also have the automatic effect of vacating the original panel’s decision–casting that panel opinion aside as if it no longer existed.
Of course, it’s impossible to know for certain what the en banc panel will do after it hears the case, especially because the Ninth Circuit’s own rules add a bit of a chaos factor to the analysis. Typically, when a court of appeals agrees to hear a case en banc, every active judge on the court participates in the decsision. Because the Ninth Circuit has more than two dozen active judges, however, en banc panels in that circuit normally only include eleven randomly selected judges. Accordingly, even if only six of the Court’s twenty-seven judges agree with the NRA, it is mathematically possible for an en banc panel to take the NRA’s view of Nordyke.
Nevertheless, because an en banc panel is only called when a majority of the court’s active judges agree to reconsider a case, the overwhelming majority of en banc decisions disagree with those of the three judge panel. In other words, it is more likely than not that the Ninth Circuit will reach the exact same result Judge Sotomayor did; and the NRA’s case against Sotomayor will lose it’s only half-decent argument forever.