## Facts

- California enacted and amended the Roberti-Roos Assault Weapons Control Act (AWCA), imposing extensive restrictions on the possession, use, and transfer of certain semiautomatic firearms labeled as “assault weapons.”
- Various California residents who owned, or sought to acquire, covered weapons filed suit in federal district court against state officials, challenging the AWCA on multiple federal constitutional grounds, including the Second Amendment and the Equal Protection Clause.
- The district court dismissed all claims.
- A Ninth Circuit panel affirmed the dismissal of the Second Amendment claims under then-controlling circuit law, rejected most other constitutional challenges, and addressed equal-protection attacks on statutory exemptions for peace officers.
- After the panel decision, the plaintiffs sought rehearing en banc.
- The Ninth Circuit issued an order denying rehearing en banc; several judges filed published dissents from that denial, including Judge Kozinski (and others), arguing that the case warranted en banc review and disputing the panel’s Second Amendment analysis.

## Issues

1. Whether the Ninth Circuit should rehear the case en banc under Federal Rule of Appellate Procedure 35 after the panel upheld most of California’s assault-weapon restrictions against Second Amendment and equal-protection challenges.
2. Whether the panel’s Second Amendment analysis—rejecting an individual-right reading—was sufficiently important or contested within circuit law to justify en banc review.
3. Whether the panel properly resolved the Equal Protection challenge to peace-officer-related exemptions in the AWCA, including differential treatment of active and retired officers.

## Decision

- The Ninth Circuit denied the petition for rehearing en banc, leaving the panel’s judgment in place.
- The denial order stated that the petition failed to receive a majority vote of the active, non-recused judges in favor of en banc reconsideration.
- Multiple judges dissented from the denial of rehearing en banc, asserting that the Second Amendment protects an individual right and that the panel’s collective-right approach wrongly limited the Amendment’s scope.
- The dissents emphasized that, even if firearm regulations may be permissible, the court should not treat the Second Amendment as a dead letter and should have reconsidered the panel’s approach through en banc review.

## Legal Principles

- En banc rehearing is discretionary and is generally reserved for cases needed to secure or maintain uniformity of circuit decisions or presenting questions of exceptional importance. Fed. R. App. P. 35.
- Under the Ninth Circuit’s pre-Heller precedent applied by the panel, the Second Amendment was not treated as conferring an individual right to own or possess firearms for personal purposes independent of militia service.
- Equal-protection challenges to statutory classifications not involving a suspect class or a fundamental right are reviewed under rational-basis scrutiny; a classification must be upheld if any rational relationship to a legitimate governmental purpose can be conceived.
- Statutory exemptions for active law-enforcement personnel may satisfy rational-basis review when tied to job duties, training, and public-safety functions; special treatment for other groups may fail if no rational justification supports the line drawn.
- A denial of rehearing en banc does not create a new merits holding; it leaves the panel decision as the controlling disposition, while accompanying dissents may signal disagreement within the court.

## Conclusion

Silveira v. Lockyer, 328 F.3d 567 (2003), is the Ninth Circuit’s published order denying rehearing en banc after a panel decision largely upheld California’s AWCA against Second Amendment and equal-protection attacks under then-existing circuit law; several judges dissented from the denial, arguing the Second Amendment protects an individual right and that the case warranted en banc reconsideration even if the statute might still be upheld under a proper constitutional analysis.
