A 9th Circuit panel struck down California’s gun-rationing laws, and while Attorney General Rob Bonta may seek en banc review, history, doctrine and a weak factual case may all work against him.
Last week, a unanimous three-judge 9th Circuit panel ruled California’s gun-rationing law unconstitutional in Nguyen v. Bonta. Under California Penal Code § 27535(a), it is a crime to acquire more than one firearm in a 30-day period, but that limit violates the Second Amendment, said the court.
If California Attorney General Rob Bonta petitions for the case to be reheard by an en banc panel, history suggests his chances of winning a reversal are excellent. As Judge Van Dyke pointed out in his 2022 dissent in Duncan v. Bonta, “whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc.”
On the other hand, an en banc petition could carry risks. A 9th Circuit en banc panel consists of the Chief Judge, plus 10 more judges drawn at random from the other 28 active duty judges. An unlucky draw, from the attorney general’s viewpoint, could create a panel that could reverse much of the prior anti-rights en banc precedents.
By David Kopel

