Wednesday, July 06, 2016

U.S. v. Phillips (9th Cir. - July 6, 2016)

Everyone on the panel agrees that defendant's arguments are meritless.  So much so that the panel doesn't even need oral argument; the case is submitted on the papers.

However, Judge Bybee, joined by Judge Kozinski, are somewhat excited by defendant's Second Amendment claim.  He writes an opinion that waxes poetic for a half-dozen pages about what he perceives the limitations to be on the government banning firearms possession by felons.  All this despite the fact that he ultimately agrees that precedent clearly forecloses defendant's claim.

Judge Christen concurs, and takes a different approach, saying:  "I also agree that our prior precedent and Supreme Court precedent foreclose Phillips’s argument that use of his prior conviction as a predicate offense for his § 922(g)(1) conviction violates the Second Amendment. Because binding precedent forecloses Phillips’s Second Amendment argument, I would not engage in further analysis or discussion of it."  And then drops a citation and quote to make clear that everything else that the majority said was dicta.

Two competing visions.