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3 Hottest Issues at the Circuit Court of Appeals Level

By William Peacock, Esq. | Last updated on

Circuit Court of Appeals? Isn't this the U.S. Supreme Court blog?

True indeed, but controversies below, and circuit splits, often mean SCOTUS petitions. Besides, we've got three issues that are begging for a little Supreme Court clarification -- the Second Amendment, sexual orientation discrimination, and the issue that never seems to go away: abortion.

1. Mixed Results for Second Amendment Advocates

Is there a right to concealed carry? We've already noted the big circuit split, and the pending cert. petition out of the Third Circuit, but since then, the Ninth Circuit has chimed in twice more, striking down Yolo County, California's restrictions on concealed carry, as well as the entire state of Hawaii's restrictions [PDF].

Meanwhile, the same circuit just upheld other restrictive gun laws, specifically the City and County of San Francisco's "Safe Storage Law," (requiring gun owners to keep firearms in locked containers, even when at home) and another Police Code section that bans the sale within the city of hollow-point ammunition.

The Ninth Circuit, applying a form of intermediate scrutiny [PDF], held that the "locked-storage law serves a significant government interest in reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home." As for the ammo, the panel drew parallels to First Amendment restrictions, holding that the ban was "akin to a content-neutral time, place, and manner restriction."

Yeah, at this point, they're clearly making up the law as they go along. Content-neutral? Guns? Huh? This is definitely a sign for SCOTUS intervention, unless the Court wants the Ninth Circuit to start applying the Rule in Shelley's case to magazine capacity. The NRA has already promised that the plaintiffs will seek en banc review, then Supreme Court review if necessary.

2. Sexual Orientation Discrimination

Speaking of scrutiny standards and the Ninth Circuit, it issued a very interesting opinion in Smithkline Beecham v. Abbot Laboratories, using the Supreme Court's vague reasoning in Windsor to hold that a vague "heightened" level of scrutiny applies to cases of sexual orientation discrimination. Any level of heightened scrutiny was an improvement over the circuit's prior precedent, which only applied rational basis.

The case itself was about Batson challenges and a homosexual juror, but its holding caused the State of Nevada to back out of its defense of its same-sex marriage ban.

Initially, it appeared as if the Smithkline decision would not be appealed, but last week, the Ninth Circuit ordered briefing by the parties after a sua sponte call for rehearing was made by at least one of the court's judges. (Hat tip to SCOTUSblog.)

And on a related note, Michigan is facing the same confusion as many other states over same-sex marriages, after a federal judge ruled against the state's ban, an appeals court issued a stay (after a few hundred licenses were handed out), the state refused to recognize the marriages, while the federal government stated the opposite, reports SCOTUSblog. It's the same conundrum same-sex couples in Utah face, one that will be cleared up (finally) when these cases eventually reach the Supreme Court.

3. Texas Abortion Restrictions Upheld

And finally, the lenient standards of "undue burden" and "rational basis" spelled doom for challengers to Texas's recent abortion restrictions. The Fifth Circuit sides with Texas, holding that driving a few hours to a clinic was not an undue burden, and that the state's admitting privileges restrictions passed the ever-so-lenient rational basis test. For more on the decision, head over to our Fifth Circuit coverage.

An en banc appeal of the panel's decision, and a cert. petition seem incredibly likely at this point.

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