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.