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As a federal trial attorney with appellate experience, including clerking for a United States Court of Appeals judge decades ago, I tend to discount a lot of the “conspiracy theories” non-lawyers often postulate about how courts work and operate in Second Amendment cases.   Certainly, there are plenty of judges who decide cases by deciding what result they want to reach and then construct a rationalization that justifies it, but by and large my experience is that judges – especially appellate judges – realize that at least appearing to follow the rules and the law is essential to public confidence in the courts.

I was thus flabbergasted at the bizarre order bizarre order that came out of the Ninth Circuit Saturday in Duncan v. Bonta, the emergency appeal from Judge Benitez’s tour de force opinion nuking, once again, the California standard capacity magazine ban. 

As I’ll explain below, the Ninth Circuit isn’t even trying to hide its contempt for the law and established process, and its order yesterday shortcut a raft of established policies and procedures.   

Let’s set the stage for where we are now. After a bench trial several years ago, Judge Benitez ruled that California had failed to establish the constitutionality of its ban on so-called “high capacity” magazines, either under the “intermediate scrutiny” test or the “text, history, and tradition” standard. A three-judge panel of the Ninth Circuit affirmed the ruling.  

What happened next — which to my knowledge had not been disclosed before — has just been revealed by Judge Lawrence VanDyke in his blistering dissent from yesterday’s order. . ..

After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone— not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—including a death penalty case. Priorities.

In other words, a faction of Ninth Circuit judges threw the Court’s own internal rules out the window in order to take the case en banc…where, predictably, they reversed Judge Benitez’s decision in 2020.

Duncan then filed a cert petition to SCOTUS, which held the case pending decision in Bruen. After Bruen was decided, SCOTUS summarily “GVR’d” the case, sending it back to the Ninth for reconsideration.

Because Judge Benitez had already made alternative findings based on application of the “text, history, and tradition” test later adopted by SCOTUS in Bruen, the Ninth Circuit could — and should — have simply reheard the case itself and decided it. Once again, however, the anti-2A convictions of a faction of Ninth Circuit judges prevailed over conventional practice, and the Court instead sent the case back to the trial court . . . for what isn’t exactly clear.  

There had already been a full trial, and there was no finding made that required a new trial or that vacated any of the fact findings made before. Once a case has been tried, absent an order granting a new trial you don’t just get a do-over on remand. This decision appeared to be nothing more than an effort to delay the case as much as possible, one that Judge Patrick Bumatay and Judge VanDyke dissented from.

So the case went back down to the district court, creating a delay of another year.  While Judge Benitez bent over backwards to give California the chance to present all the new evidence they wanted as to historical analogues, to no one’s surprise last month he again ruled the California law is unconstitutional and permanently enjoined its enforcement.

As is typical in high profile cases like this, Judge Benitez granted the state a 10-day administrative stay of his injunction to allow them to file an appeal and seek a stay pending appeal…which is a very high burden to meet. Normally, such a motion would have been sent to the three-judge panel that heard the first appeal, which included Judges Bumatay and VanDyke.

What did the Ninth Circuit do instead? It issued an unprecedented order taking the entire case en banc immediately — including the motion for a stay pending appeal and extended the administrative stay another ten days.   

Ninth Circuit Judge Patrick Bumatay
Ninth Circuit Judge Patrick Bumatay

As pointed out in dissents from Judges Bumatay and VanDyke, the Court isn’t even trying to hide what it is doing. As Bumatay wrote . . .

For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). In Bruen, the Supreme Court made clear that the Second Amendment must no longer be deemed a disfavored right.

With this clear direction from the Supreme Court, you might think that our court would return to regular order and handle this Second Amendment case like all others before our court. And in the normal course, emergency motions would be handled by a three-judge panel. But not here. Because this is a Second Amendment case, we now take the unprecedented step of taking an emergency motion as an en banc panel in the first instance. While our rules may leave room for such an unusual step, discretion and wisdom counsel against it. Indeed, to my knowledge, no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter. And the majority cites no precedent otherwise. So I’m left wondering why we rush to do something so unorthodox.

Judge VanDyke was scathing in his criticism of this open judicial activism . . .

I share Judge Bumatay’s concerns about the irregularities created by this en banc panel’s all-too-predictable haste to again rule against the Second Amendment. Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why. . . .

Cases involving the Second Amendment in our circuit have unfortunately suffered from a like phenomenon. And just as we should no longer distort our rules in abortion cases, we should no longer apply “different rules to different constitutional rights.” Whole Woman’s Health, 136 S. Ct. at 2321 (Thomas, J., dissenting). We should not give Second Amendment cases “special” treatment. But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.

Judge VanDyke then proceeded to air the Court’s dirty linen, as quoted before and in greater detail, making it clear that when a Second Amendment case is before the Ninth Circuit, the court’s rules and procedures mean nothing. 

Ninth Circuit Judge Lawrence VanDyke

He concluded by calling the Court out on this . . .

In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors? 

The story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion. As uncomfortable as it is to keep pointing that out, it is important the public keeps being reminded of that fact.

What will happen next? The en banc court will have to decide whether or not to grant a stay pending appeal by October 10, but no one expects the Court not to do so…and then will likely sit on the case for as long as possible, as has been the Ninth Circuit’s tactic in Second Amendment cases for years.

This time, however, the Supreme Court is watching, and Justice Thomas isn’t amused.  Currently, the Second Circuit is considering an appeal of injunctions against laws New York passed in its post-Bruen hissy fit, and has granted a stay of those injunctions pending appeal. Earlier this year, Justice Sotomajor (the designated justice for the Second Circuit) denied a motion to vacate the Second Circuit’s stay.  

But last week, Justice Thomas put that request back on the agenda for the Court’s conference for October 6. That suggests to me that he may have the votes lined up to vacate the Second Circuit’s stay pending appeal . . . or perhaps to take those cases immediately. 

If, as it appears, the Ninth Circuit anti-gun faction continues to twist the law and procedure like a pretzel to reach its desired anti-Bruen outcome, expect to see an emergency motion to SCOTUS to vacate that order, followed by a “shadow docket” order doing just that. 

I will not be surprised if Justice Thomas or Alito issues a concurring opinion that cites Judge VanDyke’s dissent and sends an explicit message to the Ninth Circuit that says, in effect, “We know what you are doing, and we are simply not going to give you the usual deference we give Courts of Appeals. Keep doing this and we’ll start summarily reversing you in every Second Amendment case that comes before us.”

We will see.  The next month will be very interesting.

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  1. Absolutely love it. If my patience awaiting the final outcome of this years-long struggle for liberty and constitutional law is the price to pay, then I’ll gladly endure a while longer if this means the Ninth will ensure the matter gets passed back up to SCOTUS and Thomas knocks it out of the ball park for the entire nation.

    The freedom-hating Left is playing the long game and hoping Thomas will die in his sleep before this happens.

    • I was thinking we would have a 2nd circuit ruling from the March hearing before it went all the way up to 9th circuit for your end but damn you really are going to race us for the start of a potential circuit split. Even better there is enough variation on issues between both ends of our states that it could discontinue multiple paths for restrictions. But now to wait and see how long it takes to grind along.

  2. Clearly the 9th needs to be broken up and some of the judges “encouraged” to retire. This kind of behavior is why the courts in general have lost respect and the 9th is commonly called the 9th Circus.

    • yeah, but, at the moment, consider who would be vetting and approving their replacements…

      • Yeah, evil old judges replaced by more evil, young judges… 🙁

  3. While the internal machinations of the 9th Circus are interesting, let’s not forget that we have a group of black-robed overlords who, by hook or by crook, are more than willing to delay and deny citizens’ Constitutional rights.

    It’s getting more and more kangaroo-ey out west.

  4. “Once again, however, the anti-2A convictions of a faction of Ninth Circuit judges prevailed over conventional practice, and the Court instead sent the case back to the trial court . . . for what isn’t exactly clear.”

    But it is clear. They are desperately hoping and … well, no, they don’t really do much praying… that a gun-hating president will hold the White House and that eventually, they can change the balance of SCOTUS to overturn Heller and Bruen.

    It’s their only play.

    These are not honorable people.

  5. Never gets old when people in an industry can’t see the corruption of that industry until it sits rights on their face. Even then many will still dismiss the corruption until it shits directly into their mouth.

    If you still won’t see the corruption at that point you’re probably running for office.

  6. As I predicted, lefty judges and politicians will just ignore Bruen. Until there are consequences (i.e. large fines and long jail time) for usurping our rights under the Constitution, it will continue.

    • Still at the boring part and progressing through the system far faster than expected so see what happens whenever.

    • “As I predicted, lefty judges and politicians will just ignore Bruen.”

      The exact same thing happened when the The Civil Rights Act of 1964 was passed. At first, the southern states fought it with everything they had. It took some time, but they fell in line.

      We have to do the same and refuse to “ride in the back of the bus” for our rights…

  7. RE: “We will see. The next month will be very interesting.” ing that out, it is important the public keeps being reminded of that fact.

    Cut the chase LKB…The goal post has been moved again on the behalf of an Agenda Rooted in Racism and Genocide. That circles back to the fact Gun Control was Not Defined by Its History once in your word salad much less for the court that moved the goal post.

    • Debbie W.,

      Do you really think that those errant judges in the 9th Circus will suddenly support the Second Amendment after someone tells them your claim?

      Tyranny exists because the world is full of a$$holes who are quite happy and comfortable screwing over anyone and everyone that they can. In other words they don’t have a conscience and your spiel–an appeal to conscience–will not change them. For reference our government (all three branches) is full of said tyrannical a$$holes without a conscience. Sadly, so is our voting populace.

      Are attempts to educate government and the voting populace a good thing? Of course! Will education persuade a$$holes without a conscience to do what is right and good? Absolutely not.

    • “Cut the chase LKB…”

      He just did, you brain-damaged twit, you were (as usual), too dense to understand it…

  8. All of the black robed rubes on the wrong end of the Second Amendment need to be disbarred permently from society . Or else sent to Mexico to learn the law

  9. Thanks LKB for your insight and wisdom again! Yeah going to be very interesting to see what happens. Hoping that SCOTUS takes some positive action on this soon as you suggest might be a possibility. If they don’t then these progressive lower court judges will just continue to run rampant releasing decisions based on how they think things should be. I have been hearing ramblings that they are hoping the Rahimi decision will be their savior allowing continued gutting of our Second Amendment Rights.

    • Yeah, the attorney representing the NM Gov at the TRO hearing was trying to argue that SCOTUS granting cert on Rahimi means Bruen is about to be narrowed, and therefore he should anticipate that. (Even the Biden-appointed judge wouldn’t buy that garbage.)

      We’ll see, but I’m hoping for a bright line decision that says for adults who have not been ADJUDICATED to have committed a serious crime (or are mentally deficient), no dice as there’s no historical precedent for that (and the laws disarming Catholics, Blacks, and Indians don’t count). But I think the key judge will be ACB — if she goes wobbly, Roberts will be right there to wobble with her.

      On other fronts: SCOTUS was supposed to consider the cert petitions in two of the bump stock cases (Cargill and Guedes) on Thursday, but a little bird told me they have kicked that can down the road a bit to await the cert briefing being completed in another bump stock case (Hardin).

      • “…I’m hoping for a bright line decision that says for adults who have not been ADJUDICATED to have committed a serious crime (or are mentally deficient), no dice as there’s no historical precedent for that…”

        I’ve been saying for years here in TTAG if we ever won big on gun rights (and we did, ‘Bruen’), their response would be to expand the pool of prohibited people as much as possible.

        Here’s to hoping Thomas has something in mind to deal with their bullshit…

      • “We’ll see, but I’m hoping for a bright line decision that says for adults who have not been ADJUDICATED to have committed a serious crime (or are mentally deficient)”, no dice

        That would the the Constitutional way to do it, since the Due Process Clauses in the Fifth and Fourteenth Amendments imply that with due process a citizen can be deprived of liberty, that’s how we would justify felon in possession laws and other such restrictions. Absent that, it’s not just a Second Amendment violation, but a violation of the other aforementioned Amendments as well.

  10. I hope that the 9th circus has just really pissed Justice Thomas off. It could be the best outcome possible. Dear Lord protect him.

  11. “But last week, Justice Thomas put that request back on the agenda for the Court’s conference for October 6. That suggests to me that he may have the votes lined up to vacate the Second Circuit’s stay pending appeal . . . or perhaps to take those cases immediately.”

    Good… 🙁

    • I am still at the believe it when I see it phase but any attention to the second could be a benefit in speeding things along. With that said we do have a case involving voluntary treatment being used to deny gun rights in the churn and very much looking forward to discovery re how the state determined his denial and the communications involved.

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