When all is said and done, I suspect that Donald Trump’s biggest legacy as president will be the hundreds of judges that his administration has been able to place on the bench around the country. Trump’s efforts have helped to reshape the federal judiciary, and nowhere is that more evident than the Ninth Circuit Court of Appeals.
Long considered the most liberal (and anti-gun) of all the appellate courts, the Ninth Circuit is now at near parity between Democrat-appointed judges and those appointed by Republicans, and the new balance already having an impact on Second Amendment cases, as California attorney Ben Feuer writes in a new piece at the San Francisco Chronicle.
The Ninth Circuit’s jurisprudence has started shifting along with its alignment — but the process is slow. The court is bound by its own precedents, which for half a century have often leaned well to the left. And only active judges, among whom Democrat appointees still slightly edge out Republican appointees, can call for cases to be reheard by 11-judge “en banc” super-panels, which are the sole way the court can overrule its own precedents.
But change it will, over time.
We’re watching one of those en banc super-panels right now in a case called Young vs. Hawaii, which challenges the state’s ban on open carry of firearms without a license (a license which the average resident of Hawaii cannot hope to obtain). A three-judge panel on the Ninth Circuit ruled that the state’s law violates the constitutional rights of residents, but the en banc panel that’s reviewing the case has yet to release its opinion, though oral arguments were heard back in September.
That en banc panel consists of six Republican-appointed judges and five judges appointed by Democrats. While that doesn’t automatically mean that we’ll get a good decision upholding the original Ninth Circuit ruling, it definitely increases the odds of that happening.
In addition to the appellate judges that Trump’s been able to place on the Ninth Circuit, several of his U.S. District judicial appointments in the Ninth Circuit have also offered key rulings in support of the Second Amendment. Judge Roger Benitez, for example, has declared California’s ban on so-called high capacity magazines unconstitutional and issued a preliminary injunction against the state’s laws barring online and out-of-state ammunition purchases, leading gun owners in the state to nickname the judge “Saint Benitez.”
As Feuer writes, the changes to the Ninth Circuit won’t be able to be easily undone by Democrats, even if Joe Biden is inaugurated next month. Ironically, though the Ninth Circuit has been a roadblock for the Second Amendment for decades, the road to full recognition of the right to keep and bear arms may very well run squarely through the Ninth Circuit in the years to come.