A U.S. appeals court vacated a ruling that had struck down a federal ban on felons owning firearms, prompting a conservative judge to accuse his “Left Coast” colleagues of attempting to “subvert” the U.S. Supreme Court’s expansion of gun rights. On Wednesday, the San Francisco-based 9th U.S. Circuit Court of Appeals announced that a majority of its 29 judges had voted to vacate the three-judge panel’s ruling and have a larger panel rehear the case.
In May, a panel comprised of only Republican presidential appointees, including U.S. Circuit Judge Lawrence VanDyke, made the decision. VanDyke issued a rare dissent to the 9th Circuit’s decision to hear the case en banc, or by an 11-judge panel. VanDyke, an appointee of former President Donald Trump, in his dissenting opinion stated that “a supermajority of our court is so predictably biased against firearms” and accused the court of trying to undermine the U.S. Supreme Court’s interpretation of the right to keep and bear arms in the U.S. Constitution’s Second Amendment.
The 9th Circuit, the largest of the 13 federal appeals courts, is dominated by 16 judges appointed by Democratic presidents. VanDyke claimed that whenever a panel upholds a party’s Second Amendment rights, the court votes to rehear the case. He asserted that the 9th Circuit would inevitably uphold the ban on felons possessing guns after the U.S. Supreme Court’s 8-1 ruling in June, which upheld a ban on people subject to domestic violence restraining orders having firearms.
However, VanDyke argued that the ruling did not clarify the ban’s constitutionality and criticized the Supreme Court for not taking up one of several pending appeals raising that question. He believed the Supreme Court should have provided clarity rather than sending the cases back to lower courts to consider in light of its ruling in United States v. Rahimi.
“None of our current justices spent time in this circuit, so perhaps it is understandable that they would reasonably expect all lower courts to faithfully apply the entirety of their Second Amendment caselaw,” VanDyke wrote. “Let’s be clear: out here on the Left Coast, that is a fantasy.”
In May, VanDyke joined a decision that overturned the conviction of Steven Duarte, a California man with a criminal history who was charged with violating the ban after throwing a handgun out of a car window during a police traffic stop in 2020. The three-judge panel based its decision on a landmark 2022 ruling by the U.S. Supreme Court’s 6-3 conservative majority in New York State Rifle & Pistol Association v. Bruen, which changed the landscape of firearms regulation. That ruling established a new test for assessing firearms laws, stating that restrictions must be “consistent with this nation’s historical tradition of firearm regulation.” The 9th Circuit panel concluded that the felon ban did not meet that test.
In June, however, the Supreme Court clarified that standard, stating that a modern firearms restriction did not need a “historical twin” to. be constitutional
