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Last month, District Court Judge Roger Benitez once again ruled in Duncan v. Bonta that California’s “high capacity” magazine ban is unconstitutional. The first time, he made that judgement under Heller. This time, the ruling also took into account Bruen. He issued an injunction blocking enforcement of the law, but stayed it giving the state time to appeal the ruling to the Ninth Circuit.

The Ninth Circuit took the case, of course, and violated its own rules in order to have the case heard by exactly the same en banc judges who overturned Benitez’s ruling the first time the case reached them.

Today, the Ninth stayed Benitez’s injunction to keep Californian’s from exercising any inconvenient Second Amendment rights while they take their sweet time in hearing the case once again and issuing another ruling.

As you can imagine, there was some pointed criticism of the Ninth Circuit’s clear double standard where Second Amendment rights are concerned. None of it more direct that Judge Patrick Bumatay’s . . .

If the protection of the people’s fundamental rights wasn’t such a serious matter, our court’s attitude toward the Second Amendment would be laughably absurd. For years, this court has shot down every Second Amendment challenge to a state regulation of firearms—effectively granting a blank check for governments to restrict firearms in any way they pleased. We got here by concocting a two-part tiers-of-scrutiny test, which permitted judges to interest-balance away the Second Amendment guarantee. But this approach was “nothing more than a judicial sleight of-hand, . . .feign[ing] respect to the right to keep and bear arms” but never enforcing its protection.

Several of us warned that our precedent contradicted the commands of both the Constitution and the Supreme Court. … We cautioned this very panel of the need to jettison our circuit’s ahistorical balancing regime and adhere to an analysis more faithful to the constitutional text and its historical understanding. But our warnings went unheard.

Last year, the Supreme Court had enough of lower courts’ disregard for the Second Amendment. It decisively commanded that we must no longer interest balance a fundamental right and that we must look to the Second Amendment’s text, history, and tradition to assess modern firearm regulations. … Now, firearm regulations may stand only after “the government . . . affirmatively prove[s] that [they are] part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” …

Despite this clear direction, our court once again swats down another Second Amendment challenge. On what grounds? Well, the majority largely doesn’t think it worthy of explanation. Rather than justify California’s law by looking to our historical tradition as Bruen commands, the majority resorts to simply citing various non-binding district court decisions. There’s no serious engagement with the Second Amendment’s text. No grappling with historical analogues. No putting California to its burden of proving the constitutionality of its law. All we get is a summary order, even after the Supreme Court directly ordered us to apply Bruen to this very case. The Constitution and Californians deserve better.

Californians will just have to wait until the Ninth Circuit is dragged kicking and screaming into the post-Bruen world and is forced to “allow” them to fullly exercise of their right to keep and bear arms. You can read the full ruling here.

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71 COMMENTS

    • Argument is that California is very likely to prevail on appeal, and if they don’t stay the permanent injunction it will suffer irreparable injury.

      That is a VERY high bar that is almost never satisfied. The Court had to twist itself into a pretzel to get there. And, as noted in the dissent, the majority opinion never even attempts to conduct any Bruen analysis!

      The dissent also points out another bit of screweyness that’s going on. Usually, for a court to decide to take a case en banc, it requires a majority vote of all active status judges — senior status judges don’t get a vote unless they were on the 3-judge panel. But by treating Duncan as a “comeback” case rather than allowing the panel to consider it first and then having a fresh en banc vote, the Ninth Circuit has essentially disinfranchised seven judges that were appointed after the original Duncan en banc vote, while allowing five senior status judges (who were active when the original vote was taken, but no longer get to vote to take cases en banc) to stay on the en banc panel. Talk about dead hand control!

      As the dissent notes, SCOTUS has already slapped the Ninth Circuit’s hand for this same manuever before. I expect to see an emergency motion to vacate the stay order presented to SCOTUS. Hopefully, ACB will have a bit more backbone than she did on VanDerStok . . . .

      • WHY are there no cosequences on such high and mighty “judges” when they brazenly breach the standards set forth for these courts? ALL those who voted FOR this skullduggery ought be tossed off the court sumarily and abandoned on the ash-heap of, no sorry, that’s too kind by twice, on the DUNGheap of history

      • Of course, those new judges were Trump appointees. I think they call this “stacking the deck.” The liberal judges do not want to take any risk that a three judge panel (that would normally hear an appeal) nor a new en banc panel with a new mix of judges would have enough of a majority to overrule Judge Benitez, who has twice declared the statute unconstitutional.

        • Mark N. I know this may shock you, but judges are SUPPOSED to decide Constitutional issues on the basis of the CONSTITUTION. It should NOT matter who appointed the judges.

        • This may shock you Walter, but some judges are liberals and some are conservatives, and their interpretations of statutes, regulations, and constitutional provisions tend to follow their political (or personal) leanings. I think they call this “being human.” And the higher up the judicial hierarchy one gets, the more one’s personal leanings are displayed in opinions. When you get to the very top, many of the decisions presented are not a cold, calculated determination any robot could make, but instead a nuanced determination of policy.
          When I was studying constitutional law way back in the 1980s, I became convinced that most decisions of the Supreme Court start with the desired conclusion and then the method of analysis is applied to get to that result. This is the primary reasons there are three distinct levels of judicial scrutiny (although it seems we are at the dawning of an age of a fourth); the determination of which level of scrutiny to apply is typically determinative of the outcome of the case.

        • Mark N. Doesn’t shock me at all that too many judges do NOT honor the oath they took then they were sworn in. Human beings? Don’t you really mean traitors and liars? A decision to SUPPORT and DEFEND the Constitution is REQUIRED by the oath each and every politician, police officer, government administrator, and judge takes. I don’t know what “law school” you went to, but apparently it did not teach that the Constitution is to be followed as written?

        • “This is the primary reasons there are three distinct levels of judicial scrutiny (although it seems we are at the dawning of an age of a fourth);…”

          The 9th is also risking having the same games being played on *their* ‘sacred cow’ cases, dragging them out far longer than necessary, by the conservative biased circuit courts.

          Two most certainly can play at that game, fascists, remember that… 😉

      • “Hopefully, ACB will have a bit more backbone than she did on VanDerStok . . . .”

        Hopefully, twice in a short period of time will provide the motivation…

        (Or, give ’em something to really cry about with the ‘Rahmani’ and ‘Loper Bright Enterprises v. Raimondo’ decisions… 🙂 )

    • Allowing judges to determine what your Rights are and how you can exercise them. No different than politicians, who deny your Rights. You deserve the tyranny and tyrants…You allow.

        • I believe that the Constitution/BOR already did that. What we have are biased idiots masquerading as our betters telling us what our rights are.

        • “Mark N, we already have chaos. Thanks to you Lefties.”

          Walt, Mark N. is no stinking leftist. In the 10-odd years of reading his comments here, he’s pretty consistent about “calling them as he sees them”…

        • Goeff, that is your opinion. I find his stands on issues to be Leftist. Remember there is NO SUCH THING as a “moderate”.

    • The Political Basis is that all these West Coast and East Court courts are hoping that they can hang on long enough, so they one of the “Evil Conservatives” on the Supreme Court dies and can be replaced by a non-binary communist.

      Kalifornia already had their chance to present proof that their law complied with the Heller, MacDonald, Caetano and Bruen mandates. They did not and can not, therefore their chances of complying with the law is ZERO and no stay should have been granted. If the 9th again overturns the district court, expect the Supreme Court to take the case and publish a ruling that strikes down all magazine bans forever.

      • nazi newsom’s problem with mag capacity for citizens says welcome to CA hamas et al…stupid democRat.

  1. Judges who believe they are not bound to follow the law are telling us we must abide by their illegal decisions.

    • Many free Americans simply ignore the unlawful actions of those who claim authority over us.

      I have my ample supply of “Freedom Week” mags from 2019, when Benitez first struck down this bad law. I personally know people who continue to this day to buy full-cap mags *and* ammo from out-of-state retailers who believe in supplying freedom to those behind Newsom’s Iron Curtain.

      Can’t stop the signal.

      • Unless you run around loudly and brazenly making a spectacle of yourself or farming enemies of others even in this age of ubiquitous surveillance it’s highly unlikely you’d ever be caught doing anything.

        Hell, even criminals posing and bragging on social media of their crimes never get rounded up.

        • True enough, but just wait till some generally honest law abiding ciizen gets backed into a corner walking down the street in some place like Portland and gets surrounded and threatented by a “group” of “mostly peaceful” “demnstrators” (like I am quite certain wil soon be unleashed in protests relating to the new “situation” in the mideast) and, in valid fear for his life, uses his PDW to save his own life….. and be found by one of Portland’s “fine est” dirty coppers having one of STANDARD capacity magazine on his toolbelt.
          I’ve seen too uch video of Portland’s PPB boys in action.. that street murder, Andy Ngo’s incidents and false charges, that poor old guy got trapped when he made wring turn in downwown and got beat up, and a friend of mine of many years who was awakened about oh two thirty one fine morning, in their own beds at home, by riot in his front lawn. He got his family close to the floor in the centre of the house, he got out his trusty defensive rifle and a couple standard cap mags,hunkered down just insude the wooden front door ready to “greet” anyone foolish enough to iattempt to bust it down. No lights on, the roublemakers apparently figured no one was home and so left. He moved his family out the next day to a friend’s house, finished and sold the house. Had they tried to bust down the door he WOULD have opened fire. the investigation WOULD have revealed the capacity of his mags, and while physicaly intact he’d likely ahve been held without bail and ths sepearated from his family unable to protect them.
          They ARE like that..

      • That’s something that has been in the back of my mind. Californians are arguably the most mobile population in the world. What stops them driving to Arizona, Nevada, or anywhere else, to purchase whatever they want? Just don’t tell anyone where you’re going, don’t make a production of it, don’t drive stupid on the way home – you can haul most anything you want in a little pink Subaru, if that’s your thing. If you have a more sensibly sized vehicle, load it up until the springs begin to sag!

        • Two reasons: One, it is illegal to import mags (or ammo) into the state by driving across the border (misdemeanor at worst unless you get caught multiple times), and two, they have people reading license plates of California vehicles (or they used to) at all of the gun shops near the border. The CHP would then spot your vehicle and pull it over to relieve you of your contraband.

        • @Mark,

          The smart ones don’t exit a store with their purchases visible, and they buy their goodies on the way *in* to that neighboting State before driving on to their hotel or destination. Then they drive home the next day.

          The *really* frosty ones take a minor detour and drive on roads that skirt the 10 or 15 Interstates, happily spending the extra 20 minutes.

          Or so I’ve heard….:)

      • If you are about to be arrested for gun / magazine / offended the state reasons. Quickly put on some lipstick, pantyhose, and a wig and inform them you participate in “drag.”

        The leftist government will let you go immediately, likely no bail required. And shortly after charges will be dropped.

  2. The ninth circuit judges are simply repeating what SC judge Taney did. Well over to a century and a half ago. The ninth circuit judges are simply trying to avoid using the word “negro” in their ruling.

  3. Ooooohhhhh NOooooo.
    More judges and judgments.
    BWHAHAHAAHA.
    It dont fckin matter what Judge Mentday has to say..

      • He said she said I said they said I said he said.
        The only time a bench warrant has any power is in the booking office after the hand cuffs are removed.

  4. White House launches propaganda video for new Office of Gun Violence Prevention… and it’s GROSS… (and guess what, a special interest non-government employee EveryTown with an ‘official government’ title of Deputy Director making ‘official’ statement and policy completely bypassing congress to create defacto law. Can’t get much more unconstitutional and illegal as that).

    • .40 this chess games been going on for 60 years at least. They’, think it might be the time to risk the Queen to get a checkmate.
      Eventually 6 moves or 2 hundred years down the line the defense of the pawns will fall. Unitil , and that will never happen, We The People have the Arms our Constitution declared we could pocess, not only by law but God given Right, to Ensure Freedom for its People, will we the people ever be anything but more then pawns.
      My female cat wanted out.
      I giv her a pat
      She ain’t been back for a week.
      Better to be splattered on the highway then never to have been given the freedom to run at all.
      Yah hardly ever see a possum chewing on a cat, I’ve tried it, awful stringy. You’ll find yourself doing a lot of chewing and with these GDamned EV’s ya’h cant be spending much time on the highway chewing. Ducks are stupid. I dont know, maybe they are really hungry, darn, kinda makes me feel sorry for blasting them out of the sky. NaHh, Quack Quack, Rabit Season ,does a Mud Hen count?
      possum says:
      I did not type this, the kitten that transgendered into a Symbian took over my body causing fingers to spadsmoradically twitch upon keypad. By the time they had quit twitching the dog ate my home work had been sent.
      If I was JRB what would I be thinking? Success or Failure, kinda scary.
      84,000 armed IRS agents.
      Whoof whoof

  5. “Ninth Circuit Stays Injunction Blocking California’s Unconstitutional ‘High Capacity’ Magazine Ban”

    “And the beat goes on. La-di-da-di-di, La-di-da-di-da”

  6. Nuremberg 2.0. When these fascists and their enablers are going to deprogramming camps we will have a good start.

  7. So they’re openly flipping off SCOTUS and literally DARING them to act.

    If only SCOTUS were up to the task.

    • If only SCOTUS would give “Us” the sic em.
      Dont know about you but that movie Predator2 was cool, the part where that mezkin dude said ” The Scorpio Is Reaady” was cool.

  8. The 9th Circuit needs to be abolished. Every liberal judge on the court needs to be impeached for the deliberate violation of civil rights under color of law.

  9. OffTop.
    Stand your ground.
    Scenario.
    Aggressor, “I’m going to knock you out, Im a Blk Blt in Karate”
    Victim.
    “Bring it on, here I stand.”
    ..
    Technically that’s mutual combat and if the victim draws a weepon and kills Agressive Kartate Man with a faster bullet is it a DGU?
    Best just to Humble ehhh

    • No duty to retreat. No duty to cower. No “proportionality” involved. Combat being combat, someone is going to lose. Hamas will be learning that real soon.

    • Factually incorrect, that is not a mutual combat in a SYG state. The advancer is the aggressor. If you say something about karotid boys mom, that could be incitement.

      That said, humble can be good. But if you are a Jew, and the karate kid is a Muslim, no point in being humble, his rulebook requires him to conquer you, and he is coming after you whenever he thinks he can win.

  10. Our permanent political class controls the judiciary. These puppet courts interpret the Constitution to keep themselves and their political overlords in power while ensuring we average citizens can do nothing to contest our status as powerless serfs.

    As Rep. John Conyers once said: “The Constitution says what we say it means.” The Bill of Rights means nothing to The Establishment…Most especially the 2nd Amendment.

    • I think it is his first draft of the dissenting opinion he will write when a decision comes down from the en banc panel in a couple of years. I think he got started right after Judge Benitez issued his decision.

  11. There should be real consequences for this treasonous behavior. Enemies foreign and domestic…

  12. The entirety of the 9th circuit needs to be disbanded and reformed. They have no concern whatsoever for the law. Only what CNN has to say is what matters to them.

  13. Still can’t pin down when we got “high capacity” or who coined the term. They’ll outlaw “high capacity” autos give em a chance (need that 43 gal diesel tank). Maryland needs that mag cap ban rescinded, it’s a PITA driving out of state.

    • “Still can’t pin down when we got “high capacity” or who coined the term.”

      I’ll take a wild-ass guess (WAG) :

      The stereotypical 1911 with a 7-round magazine was considered ‘standard’, for 40+ years.

      Then, along came the “Wonder-9s”, like the Browning High-Power 9mm with a 13 round double-stack magazine.

      *Poof* – High capacity…

  14. 1. Congress needs to break the 9th circus into about 3 parts (it is by far the largest in the US).

    2. How does SCOTUS/Senate Judiciary call these POS 9th circus judges to account/fire them?

    • neiowa
      It should be based on a percentage of cases decided vs overturned on appeal.

      When a circus justice gets to, say an overturn rate of 30 to 40%, then they should be taken in to the Supreme Court where an inquiry is held. If they agree to ‘mend their ways,’ then put them back on the bench. If after another year, they obviously LIED about ‘mending their ways,’ they should be permanently disbarred then tossed in jail for contempt of court.

      If they say that they will not, then they are disbarred ON THE SPOT from being a judge OR lawyer ever again and kicked out the door.

      They can go down to McPlastic burger and flip the rest of their life away.

      (One can dream, right?)

    • (1) it’s been tried before. It needs to happen (by the 80’s, 5th Circuit had too many judges to function efficiently, and was split into the current 5th (TX, LA, MS) and 11th (AL, GA, FL). There have been many proposals in Congress to similarly split the 9th, but essentially the California crowd likes to exercise judicial hegemony over AZ, NV, UT, ID, MN, AL, and formerly OR and WA (those states and HW are now part of the hegemony).

      (2) Constitutionally, only way to get rid of them is impeach / remove. That’s not gonna happen. SCOTUS can send a message in a number of ways if the political will exists. Easiest is to just start vacating orders like this as a matter of course via the Shadow Docket, and GVR’ing every 2A decision from CTA9 like this that ignores Bruen — summary reversal on the cert papers — no need for merits briefing or argument.

      Politically, SCOTUS likes to preserve an air of mutual respect and collegiality with the Courts of Appeals, who usually know “you don’t tug on Superman’s cape” (or robes, as the case may be). But here, the Ninth (and the Fourth, and the Second) are so dominated by Obama and Biden appointees that they are simply refusing to follow Bruen.

      As I read the cards, Thomas, Alito, Gorsuch, and Kavanaugh are willing to open up a can of whoop-ass on lower courts that essentially refuse to take Bruen seriously. Roberts, of course, is not. The key therefore is ACB, who talked a good 2A game as a 7th Circuit judge but has been wobbly on Shadow Docket cases of late.

      Rahimi will be the acid test. If ACB stands strong, and we get another Thomas decision that says, “yeah, Rahimi is scum, and should be jailed for lots of reasons. But we meant what we said in Bruen. Affirmed.” and back it up with a slew of GVR’s, the point may get across.

    • “2. How does SCOTUS/Senate Judiciary call these POS 9th circus judges to account/fire them?”

      They humiliate them when they overturn them in the ruling. And I fully expect that to happen in the near future, but the Leftist Scum ™, instead of rightfully hanging their heads in shame as to how badly the fucked up, will consider it a badge of honor… 🙁

    • The same Constitutional difference between a 10 round magazine and a 2 round magazine (none)

      And I have no doubt the 9th and 2nd would happily declare a 2-round maximum to be constitutional because “a magazine is a gun accessory, not a gun”

  15. @J
    “I believe that the Constitution/BOR already did that. What we have are biased idiots masquerading as our betters telling us what our rights are.”

    The only “rights” a person has, are those that person can successfully defended/protect. All else is theory.

    The founders proclaimed that governments are formed to protect natural, civil and human rights “of the people”. However, we have long passed that point, and the purpose of govt is to expand power over the people, so, yes, govt tells us what our “rights” are.

    The founders also provided us the means to correct government, but we a so far beyond what the founders intended, that the people cannot any longer conceive of government acting any other way.

  16. Just as I predicted. After the Supreme Court threw gun owners a bare bone with the Bruen decision the multitude of old and new anti-gun laws still stand.

    • dacian, the DUNDERHEAD, Wrong again! What the Supreme Court did is say that the cases now pending have to go through the Appeals process before they will make a ruling. Are all of you control freaks so stupid as to not be able to read a court decision?
      Again, I ask, why are you so afraid of firearms? After all, they are just inanimate objects.
      And while you are at it, don’t you claim to be a “firearms expert”? What is the firing sequence of a cartridge ?

  17. Dacidiot,
    Hate to burst your bubble, but the fat lady hasn’t sung yet.

    By all reports, Thomas, (and a few other SC jurists,) are PISSED at a few of the Circuses, (notably the 9th,) and there may be some major thumping of the downstream courts in the very near future.

    Gloat all you want, but I have a feeling it will be relatively short lived.

  18. Believing that we can return to a Constitutional Government through courts is the entire problem. Tyrants only understand power and only the people can put the consequences on them that they deserve!

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