Ninth Circuit
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Just when I thought the Ninth Circuit could not more brazenly thumb its collective nose at the Supreme Court and the Bruen decision, over the weekend a Ninth Circuit panel proved once more that there truly are no limits to that court’s enmity toward Second Amendment rights.

Recall that on October 19, Judge Roger Benitez once again invalidated California’s “assault weapon” ban in Miller v. Bonta, finding that the state had failed to carry its burden of establishing the law’s constitutionality under the Bruen test. He entered a permanent injunction blocking enforcement of the law.

However, Judge Benitez granted a 10-day administrative stay to allow the state to ask the Ninth Circuit for a stay of the judgment pending appeal. (Had he not done so, the Ninth Circuit almost certainly would have granted a short administrative stay – those are typical and par for the appellate court course.)

As I have written before, issuing a stay of a permanent injunction pending appeal is an extraordinarily heavy lift, requiring a very clear showing of a likelihood of success on the merits and irreparable injury if the stay isn’t granted. That’s especially true in cases based on findings of violation of constitutional rights, and well-nigh impossible with adverse findings of fact.

But those high judicial hurdles didn’t trouble the Ninth Circuit one bit in Duncan v. Bonta, the case challenging California’s standard capacity magazine ban, in which the Ninth Circuit essentially threw away the rule book in order to grant a stay pending appeal…without even attempting a Bruen analysis.

As Judge Lawrence VanDyke noted in his dissent in that case, that Court didn’t even try to disguise its “enduring bellicosity toward the Second Amendment.

I had hoped that the procedural differences between Duncan, which had previously been decided by the Ninth Circuit en banc (that was the procedural hook the court used to reach out and take the case away from a three-judge panel), might mean a return to regular order in Miller. That would mean the case would be evaluated on its merits by a three-judge panel and, if en banc, by a vote of the entire roster of active judges (which are now split almost evenly between Democrat and GOP appointees).

No dice.

In a terse order issued on Saturday, a 2-1 panel found that because there were “similarities” between Miller and Duncan, the Ninth Circuit’s order in Duncan (which was decided by an old en banc panel containing five judges who would be ineligible to vote on any en banc poll held now) compelled a stay in Miller.

Of course, the Miller order didn’t even discuss the fact that that the order in Duncan was, as the Ninth Circuit itself has recognized, procedurally suspect. Federal law requires a majority vote of all active status judges for a case to be taken en banc. That did not occur. Nor did the Miller panel even make a passing effort at a Bruen analysis (to her credit, Judge Consuelo Callahan dissented).

In almost four decades of federal appellate practice, I have never seen an order granting a stay in one case (which is not a decision on the merits) treated as a binding precedent for a stay in a totally separate lawsuit that deals with different laws, different records on appeal, and different plaintiffs.

The only “similarity” between the two cases is that both involved vindication of Second Amendment rights under Bruen. And both involve crass judicial activism and procedural chicanery by the Ninth Circuit.

That court will doubtlessly sit on both cases for as long as possible until, to paraphrase Judge VanDyke, those cases are pried from its cold, dead fingers” by the Supreme Court.

Will the plaintiffs in Duncan and Miller reach out and try and get SCOTUS to rein in the Ninth Circuit sooner rather than later, perhaps via the shadow docket? There are a number of things they could do and I suspect they may. Watch this space for news if and when that occurs.

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  1. “Will the plaintiffs in Duncan and Miller reach out and try and get SCOTUS to rein in the Ninth Circuit sooner rather than later,”

    I sure hope so. I would like to see the 9th circuit slapped down before my life is over. Before my unborn grandchildren’s lives are over, for that matter.

    • “The USSC has not exactly been 2A friendly to interlocutory appeals post Bruen.”

      Spare me the dramatics, oral arguments are being held next week, Nov. 2 for one that can potentially gut red-flag laws, United States v. Rahimi.

      If LKB feels worthwhile to explain it to you, he can tell you how monumental that case can be for gun rights, like potentially restoring 2A rights for those not convicted of physical violence towards another… 🙁

      • Not sure what you are ranting about, was interlocutory too large a word for you? Your google broken? The article here and my post have absolutely dick to do with Rahimi, red flag laws, or your imagined dramatics. The USSC has passed on opportunities to restore rights and freedoms at least three times. Cases from both the 2nd circuit and twice in the 5th circuit in the past year or so have asked for the states to not have their way and to allow the district court opinions to be respected until the whole judicial process was complete, in each of those cases, USSC chose to keep the 2A violation in place. While I expect Duncan & Miller to ask for USSC intervention, I am not optimistic they will provide relief based on empirical data.

        • “Not sure what you are ranting about, was interlocutory too large a word for you?”

          My bad, I ‘jumped the gun’, you are right… 🙂

  2. The 9th Circuit is staging a judicial insurrection against SCOTUS.

    For all the blather and handwringing about the J6 riot, THIS is the REAL threat to “our democracy.”

  3. I lost my house because a scumbag slick lawyer (now a scumbag multi-millionaire judge) scammed me with lies.
    Now these low lifes in Armani are taking MY FREEDOM!
    Where are penalties for “judicial activism”?
    No justice from crooks, so surely no peace!
    Time to promote them to the Judicially Appropriate Orange Jumpsuit!

  4. Partisanship ideology occupies all offices and uniforms. This is just more ends justifying the means stuff and they can look foolish or wrong because their crusade is heroic.

    • Federal judges are appointed by the President and confirmed by the Senate. So tell me, how are WE allowing any of this?

      • The Senate Judiciary could/should call these wacko marxist prog Fed judges to account. The Senate put the twits in office and the Senate can remove them.

        The 9th Circus should have long ago been broken up into small courts with less influence and size.

        • “The 9th Circus should have long ago been broken up into small courts with less influence and size.”

          The 9th, and the states is covers are all in lockstep. What would a breakup actually do? Remember, creating a new court of appeals requires creating new judgeships. We have a Dim president, and the Senate is controlled by Dims.

      • Votes have consequences and tyrants can be removed. The Founding Patriots removed an entire nation of them. It comes down to what the ‘People’ are willing to do and/or tolerate.

      • Mark N. Don’t we the people elect Senators and the President? How many people DON”T vote in elections? Last count only 65% of eligible voters vote. But then of course, many of the Election Rolls have not been purged of the dead or people who have moved in how long?

        I have a hat that says: “When I die, dont let me vote Democrat.”

  5. There is only ONE reason the left continues to push 2 A stuff…they know it will continue to create work for other Shysters in the field.

    When a decision is so radically wrong the high court that overturns it…needs also to place the cost of the appeal back on the court. Imagine the Supremes reversing the case and then billing the legal fees back to the Ninth Circus?

    • The Supreme Court has no legal fees. However, the prevailing party in a civil rights case is entitled to petition for an award of its legal fees against the losing party after remand to the trial court for entry of final judgment. Further, there is a presumption that the winning plaintiff is entitled to fees, while a winning public entity is not.

      • Tax payers still foot the bill. So allowing the Courts to decide what your Rights are and how you can exercise them, Regardless of the Bill of Rights. Still costs you.

        • It costs the taxpayers to pay for the costs of the Court whether or not it considers any 2A cases, just as taxpayers support all of the federal and state courts, as well as all facets of government. Aside from minor amounts of sanctions and costs assessed in criminal cases, the court system generates literally no income, and therefore the costs of ALL courts are borne by the taxpayers. It is unavoidable. Government is not a business. No government is anarchy and chaos.

  6. I read the opposition to the motion for a stay, and quite frankly it was very well written. In moving for a stay, the State is still arguing that it may restrict any firearm that is not commonly USED for SELF DEFENSE, and that therefore the Plaintiffs had failed in their burden of proof because they adduced no evidence of actual use in self defense scenarios, and that therefore a reversal was pre-ordained. Needlesss to say, the State’s analysis is not supported by Heller or Bruen, and the state was completely unable to adduce any evidence of a tradition of barring or regulating similar firearms. Instead it relied on laws approving racial discrimination against Blacks, Mexicans, and or other disfavored groups as well as bans on carrying Bowie knives.

    As Judge Van Dyke indicated, the fix is in. We should expect that the actual three-judge appeals panel will either be stacked with Democrats (against the rules requiring random assignments) or a stacked en banc panel. So sad that it takes so long for justice to be had, but I do not anticipate that the Supreme court will intervene until a petition for review is filed.

  7. There is no corrective action available to rein-in judges and justices. Impeachment? Yeah, that’ll work.

    • Founding Patriots didn’t rely on any Court. They petitioned the British Crown, but soon realized the folly in that and acted as necessary. To ensure their Rights as a Free people.

      • “Founding Patriots didn’t rely on any Court. They petitioned the British Crown, but soon realized the folly in that and acted as necessary. To ensure their Rights as a Free people.”


        • Act as necessary to remove the Tyranny and ensure your Rights. You and most of the others on this site continually whine about be violated or stop whining.

  8. Sadly no surprise. I am not a lawyer but wonder what has SCOTUS done in the past when a case was GVR and the lower court pretty much just ignored the new guidance and did what they pleased with the same decision as before wasting a lot of valuable time in the process.

    I don’t believe Miller v Bonta was GVR (but BIANCHI V. FROSH was) as far as AWB ban but Duncan V Bonta magazine ban was.

    The Second Amendment has been abused by the courts for years now and time is of the essence. If something bad happens to Thomas/Alito/Gorsuch/Kavanaugh then I don’t want to even think about it.

    • “I am not a lawyer but wonder what has SCOTUS done in the past when a case was GVR and the lower court pretty much just ignored the new guidance and did what they pleased…”

      Maybe, “Will Not Comply” cuts both ways?

  9. “Will the plaintiffs in Duncan and Miller reach out and try and get SCOTUS to rein in the Ninth Circuit sooner rather than later, perhaps via the shadow docket?”

    I’m tired of their bullshit. I hope Thomas is as well.

    GVR their sorry asses and call it a day… 🙁

    • They cannot GVR until a cert petition is presented and accepted, and the court decides a case that serves as guidance for the reversed decision.

    • “I’m tired of their bullshit. I hope Thomas is as well.“

      I’m sure Justice Thomas will take notice just as soon as he returns from his billionaire yacht vacation and cashes the check.

      • Yes yes, just as soon a Joe Biden prints billions of $$$ more for a combination of ‘equity’ and ‘inclusion’, and gets that personal payment check in from those guys in China called the PRC and Hunter finishes paying another pimp from Joe’s bank account so he and Joe can engage in human trafficking again.

  10. Why isn’t there any penalties against the judgment of that court? They are kicking the can down the road for what? It’s just wasting time. The Bruen should be easily been decided on any cases forward and thus they refuse to accept it. the SC should sanction the entire 9th for incompetence.

    • All this panel decided was a motion for an administrative stay pending appeal. It does not have jurisdiction over the appeal itself. However, it did enter an order expediting the appeal, with the briefs on appeal to be filed in November and oral argument in early December. It also ordered that there would be no extensions of time granted for the filing of the briefs, which is highly unusual. (By way of example, I have had civil cases where the briefing extended over six months with multiple extensions being sought and granted.)

      • So they expedited the appeal. So what? The panel can take as long as they want to issue an opinion. Look at how many years CTA9 sat on Young v. Hawaii!

        The panel will likely put the case on hold pending the SCOTUS decision in Rahimi (likely won’t come out until May or June). Then they’ll call for new briefing, or even remand to Benitez for him to redo the case in light of the Rahimi decision.

        If we get lucky and draw a panel with at least two GOP nominees (it happened in Duncan last time) that upholds Benitez’s ruling, there will be an en banc call that, unless one Dem appointee is willing to follow the law, will mean the appellate case starts all over.

        As I indicated, there are some procedural maneuvers Duncan and Miller might employ at this point, but I don’t want to jinx it. Stay tuned . . . .

    • A dismissal is a final determination on the merits. Due process requires briefing, argument, and a full consideration on the merits, or that the party appealing withdraws the appeal. That ain’t gonna happen here.

  11. The lawless, unConstitutional and therefore Treasonous Ninth Circus Court does not need to be reined in … it needs a solution/ response that is more permanent to it’s Treasonous, tyrannical Communists. In an unrelated topic, didn’t they kill John Wick’s dog? Or was it Bob Lee Swagger’s dog?

    • John Wick’s dog was killed.

      On another note
      “The lawless, unConstitutional and therefore Treasonous Ninth Circus Court”

      Warping a word to fit desire is not intelligent, nor effective. There is a clause in the Constitution regarding “treason”, we would be better served if people understood the definition provided.

      Is repealing/modifying the Second Amendment constitutional?

    • “John Wick’s dog was killed“

      John wick is an imaginary character, created by liberal elites in Hollywood to manipulate you with fear and anger.

      The liberal elites in Hollywood appreciate your slavish devotion to their make-believe characters.

  12. “Rule of law” is a dead letter in the Ninth Circuit. Anyone with any passing familiarity with how they operate knew this was coming. The standard had been clearly spelled out, but that’s meaningless to them.

    The question is where does this end up? Let’s say we eventually get a Supreme Court rulings saying magazine and assault weapons bans are unconstitutional. Since no one believes in the law out here, what does that mean? Do we need to have an “Eisenhower moment” where a President sends in the National guard to enforce a Supreme Court decision? And do we really believe that would happen for the Second Amendment, under any President?

    • No. If the laws are declared unconstitutional in a final order, whether from the Ninth or the Supreme Court, it cannot be enforced by any law enforcement entity; attempting to do so would violate the defendant’s civil rights. Further, all trial and appeals courts are bound by the decisions of the Supreme Court, and they will not enforce these laws.

      • It’s good that the 9th Circuit is going through these shenanigans, this will force it up to the SCOTUS and will effect the whole country, not just the 9th circuits territory. Just as Bruen was pushed up to the SCOTUS and the result was nationwide, so to will be Miller. It’s almost as if they are doing this on purpose so they don’t get flack from their masters and can’t be blamed for the eventual outcome… Or so one can hope.

      • I think the point being made is not how it’s SUPPOSED to work, but rather how it REALLY works. One only need spend a few hours on You Tube to see that law enforcement at all levels routinely disregard common, and therefore theoretically “well established” civil rights, from demanding ID without RAS, to sticking their foot in a door in a warrant-less encounter without exigent circumstances and threatening arrest for “assault on a police officer” if anyone attempts to close said door.
        When the near universal LE response to “you’re infringing my civil rights” is a hearty laugh and a overly confident “I don’t care” there’s a real disconnect from court room expectations and real world experience. But I suppose irony and double standards don’t ring true for courts that on one hand say a citizen has a right to film public officials and redress those same officials with the most off-color words (that aren’t “fighting words”) yet routinely prohibit the same in “their” courts.

      • “Further, all trial and appeals courts are bound by the decisions of the Supreme Court,…”

        (Sarcasm mode /on)

        That worked so well with ‘Heller’ and ‘McDonald’, and I fully expect the same games will be played with ‘Bruen’ and especially ‘Rahimi’, if it goes our way… 🙁

        • Thank you, Geoff, that’s precisely the point.

          The inferior courts do not see themselves as bound to the Supreme Court’s Second Amendment decisions in any way. It’s almost like it’s a challenge for them to see how they’re going to evade them. The current tactic is to put words in SCOTUS’ mouth and reread the standard to be “in common use for self-defense” and further interpret that and “commonly used in self-defense shootings”.

          So I’m still left unsure of what to think. The courts just don’t work as designed. There doesn’t seem to be any mechanism to address that, so it will only get worse. I don’t know how it ends, but I don’t think it can end well.

  13. @Darkman
    “You and most of the others on this site continually whine about be violated or stop whining.”

    I don’t whine, because I know where this is all going; future history was written long into the past.

    While people run around with their hair on fire to no avail, I just try to bring even temper, even reaction, reality “If you can keep your head when all about you Are losing theirs….”.

    Enjoy what we have, while we have it, because “all we are is dust in the wind”. Waco and Ruby Ridge told the story, and the nation slept.

    • How are you going to have a 1000 Wacos, or a 1000 Ruby Ridge’s? Since the libertarians liberals and the left have been so successful, defunding the police.

      Because the police have been defunded. Trust in the police has been broken in the United States, thanks to the efforts of the 3 L’s. And thanks to the Liberals who ordered the cops to stand down. While rioters burned, raped, murdered, looted, and vandalized private property.

      So who is going to be doing the enforcement you are so concerned about?

      To quote Benjamin Franklin, “the people need to be made uncomfortable, in order to force them to change their behavior.”

      He was talking about poor people originally. But it certainly applies to the liberals that are running the major cities. The explosion in crime. Because they defunded the police. Flooding the liberal cities with the illegal aliens by the Republican governors.

      Now, finally, some of these liberal leftists who run their cities, are starting to change their behavior.
      But the Individual cops are retiring or quitting these left-wing liberal run city departments. I think it’s too late for cities like San Francisco, Seattle, Portland and others.

      There are police agencies that are now refusing to help other agencies where the liberals are in charge.
      We are on track for another american revolutionary war.

      And it only requires less than 10% of the US population to be successful. Because that’s about what it was for the last american revolutionary war.

        • Always was their strong point really. Hard to get useful idiots if you can’t sell the lies.

        • “You don’t think the border hoppers are all just asylum seekers do you?”

          Have read that two groups if illegals are always deported: Cubans and Venezuelans. Likely because both countries are Communist, and people are fleeing such paradise. They might not take well to Dim tyranny.

      • Let them have their utopias. Some places will always be a lost cause. Right wingers need to learn from Democrats and the so-called migrants, who all have zero intention of ever leaving this country. They’re intentionally changing the demographics. Two can play that game.

        Leave blue states to populate and flip purple states. Strengthen the state level governments of red states. That is the ONLY way we even begin to turn things around.

        • Yes. The Constitutional Republic is dead. The only thing that matters in terms of laws and rights under the law is winning elections. California, NY, Illinois – the people living in those state will never get their rights back. It will take years for SCOTUS to get around to these cases and when they do strike them down those state will just re-word their statues and the whole thing will start over again. The state governments can do this because the control all three branches in these states.

        • “They’re intentionally changing the demographics.”

          That’s starting to work in OUR favor, believe it or not!

          It seems that the poor folks from central and south America wanting to come to the US remember all too well what happens when S.o.c.i.a.l.i.s.m comes to power and results in misery and poverty, and want no part of it.

          For proof, look at the state counties that border Mexico. All majority Latino population, and the don’t vote democrat. At all.

          They will regret betting the bank that the new Latinos are their demographic salvation. These folks want the American Dream, not a handout.

          I wonder if a part of that is that the very poorest folks tend to be devout Catholics? 🙂

      • “How are you going to have a 1000 Wacos, or a 1000 Ruby Ridge’s? ”

        Shouldn’t be necessary. One shot on the Lexington Green was all it took for the founders to cross the Rubicon.

    • “…dust…”

      It ain’t all bad, Sam. There’s some for sure bad stuff in the end of the Book, but some good stuff too. And Livgren wrote some positive songs after his eyes were opened, so his story didn’t end with the dust thing.

      • “It ain’t all bad, Sam.”

        True. But, but to get to the good stuff in the end of the Book, the world has to endure all the bad stuff.

        Meanwhile, I have plenty of the good stuff stocked in the spare bedroom.

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