Both Republicans join the Democrat's concurring opinion citing Kavanaugh to tell him they're being faithful to his history-and-tradition test that SCOTUS adopted in Bruen. This is a dare: Kav articulated that test on CADC to vote against DC's ban, and he now wants SCOTUS to strike down state bans.
Kavanaugh hinted that he voted against taking up the challenge to MD's assault weapons ban bc there wasn't yet a circuit split. CA3 heard args against NJ's ban in July with a Dem-majority panel. Just yesterday, the full court ordered en banc args. storage.courtlistener.com/recap/gov.us...
The CA3 en banc arg breakdown is 7-6 Republican, but not all of the Republicans are gun zealots. Also, Bove is not included on the en banc panel. Curious move. So either they have the votes to strike NJ's ban down and create a circuit split or they want to avoid a circuit split without Bove.
In other words: If CA3 let the panel issue its opinion upholding NJ's ban in regular order, then Bove (and, if confirmed, Mascott) would have been the deciding votes on the en banc court to strike down NJ's ban and create a circuit split. Perhaps CA3's rushing to avoid that scenario now?
cc @matthewstiegler.bsky.social @adambonin.bsky.social who can tell me I don't know CA3 procedure and am getting this all wrong
My gut read: CA3 Dems and at least a couple of its Republicans want to avoid the circuit split on state assault weapons bans that Kavanaugh so desires, and so are rushing to go en banc before Bove gets his commission.
Interesting idea, but I don’t think it’s correct that they’re rushing to go en banc before Bove joins the court. If he’s on the court before the en banc OA, he’d get to participate. And confirming him doesn’t change the number of votes needed to grant en banc (majority of actives, 7/12 or 7/13).
Were any of the assigned Dems on the panel senior? If there’s no panel opinion, do senior judges get to participate in the en banc rehearing?
Yes to the latter, and the en banc order notes Smith (an R appointee) will participate.
Also, sua sponte (which autocorrect really thinks should be sub sponge) en banc probably sounds more dramatic than it may be for CA3. En banc is rare here, but when it occurs it’s often sua sponte. It is a signal that a majority wanted to consider whether to overrule a prior panel op, maybe no more.
This is an interesting theory, but is it not basically guaranteed there will be a circuit split within the next couple years anyway? Do none of the conservative-dominated circuits contain any states with gun laws worth challenging?
CA1, CA2, CA3, CA4, CA7, CA9 CA3's Trump's only flippable circuit with live challenges to state assault weapons bans. Only CA7 has a Republican majority, and it has already upheld Illinois's assault weapons bans, and SCOTUS denied cert in those cases. everytownresearch.org/rankings/law...
Correction: the IL challenge remains live, and CA7 will hear oral args next month. So far, however, the all-Republican panel has shown no appetite for striking down the ban: storage.courtlistener.com/recap/gov.us...