Ninth Circuit
Courtesy ca9.uscourts.gov
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As TTAG has reported, a Ninth Circuit three-judge panel has upheld Southern District of California Judge Roger T. Benitez’s ruling against California’s ban on standard capacity magazines. Obviously, that is a very important development. But the panel didn’t merely uphold that; the panel upheld Benitez’s position that potential Second Amendment infringements must face strict scrutiny.

Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply.

Nearly every violence-enabling victim-disarmament gun control law on the books has stood because courts almost invariably apply intermediate scrutiny, a made-up test that allows the Constitution to be violated if the government claims some equally imaginary “interest” served by continuing to screw the people.

If this stands, it will be the precedent for dismantling gun control in California and the entire Ninth Circuit. Few of the state’s restrictions on the right to keep and bear arms could withstand a strict scrutiny test. I’m astonished that a panel of the Ninth ruled this way, so explicitly. Elections really do have consequences.

I’m sure California Attorney General Xavier Becerra has already filed for en banc review, where I’m even less certain that the oddball notion that the Constitution means what it says, and that rights must be protected, will stand. But hope springs eternal.

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89 COMMENTS

  1. Just stopping by to remind everyone that ‘Goof…PR’ is a limp wristed nancy boy who tosses more salad than Olive Garden.

  2. “intermediate scrutiny, a made-up test”

    “Rational basis” and “strict scrutiny” are also made-up tests. They exist as methods for courts to explain why they are screwing us. All judge-made law is made up.

    • It’s crazy how a document can say you can’t do certain things as a legislator, and the authors of that text wrote letters, had discussions, and supported others writings on the subject, and then still decide that it is OK to do the thing that is expressly forbidden. I guess that is just par for the course for power hungry scum bags.

      • Lou

        Those authors of said documents in those documents also called out the prescribed penalty for those scum bags who can’t of failed to understand, just what they have proven by their actions, guilty.

      • Words on paper are just that. “Freedom”, “Republic”, and “Democracy” are just words too until you make them a reality. People with guns made a reality that is this country and labeled what we have here: “Freedom”, “Republic”, and “Democracy”. If what a judge says is willing to be put in to affect by people with guns and the rest of us go along with it, then the people with guns can call that reality: “Freedom”, “Republic”, and “Democracy”.

        The 2nd ammendment doesn’t let us have guns. We have guns and the powers that be have to risk a civil war to take them away.

        The 13th ammendment didn’t abolish slavery. Men with guns did. Those men, convinced of the righteousness of their cause and willing to fight, kill, and die, put themselves in harms way and used guns to make other people’s words on paper a reality.

        Fortunately we can vote and chose to live in places with people who share our ideas (for the most part). That certainly has done a lot to mitigate the need to solve every problem with a gun.

        • “Those men, convinced of the righteousness of their cause and willing to fight, kill, and die, put themselves in harms way and used guns to make other people’s words on paper a reality.”

          There was a high probability that a force of arms could end slavery, whereas a constitutional amendment was doomed to failure.

          As always in human history, “might makes right”. Everything else is mere theater.

    • The judicial self-aggrandizement began with Marbury v. Madison, in which SCOTUS simply declared powers unto itself that were/are constitutionally for Congress. It has been Congress’ fault for not setting the Justices straight and holding up the separation of powers. Over the generations, Congress abrogated more of its powers to the Presidency, which has established numerous alphabet agencies to create regulations (pseudo laws), and SCOTUS has grabbed more power for itself.

      Now the defining lines are so blurred and the waters are so muddied that the Three Branches don’t even know which side is up anymore, and simply do/say whatever they think they can get away with unless successfully challenged (which is very rare). And the average American thinks this is all the way its supposed to be.

      • It’s how our Congress-critters insure their continual re-elections – pointedly ignore their sworn duties so they can pawn their responsibilities off on the executive branch and the alphabet agencies. And we, the American voters, continue to rubber stamp their cowardly avarice hoping that our slice of the collective pie continues ad infinitum. Unfortunately, until We the People decide to change things, we’re stuck dealing with the results. Or the whole rotten mess crashes in a smoking heap to be replaced by what’s served as government for nearly the entirety of human history – despots and tyrants grinding wealth and privilege out of their subjects by the threat of violence. This is the Left’s goal of course, with themselves in charge, for our own good. So we don’t all die from: the next ice age or overpopulation or deforestation or economic crashes or economic peaks or global warming or not enough oil or too much oil or wearing fur or genetic engineering or vaccines or “gun violence” or toxic masculinity or obesity or famine or toxic chemicals or high health insurance premiums or too much liberty or not enough democracy or drug/alcohol addiction or drug/alcohol prohibition or fill-in-the-blank “-isms”…

        Think I need to wash my mind out with a back-to-back-to-back viewing of “The Searchers”, “Lawrence of Arabia” and “The Great Escape”…

      • Repealing the 17th Amendment would be a start.

        Senators should be only concerned with their States welfare, not trying to legislate for the entire country. Selected by the State Legislature, the State can keep said Senators on point or get kicked to the curb.

        Since then Senators won’t have to spend every bloody day campaigning and raising money.. maybe..just maybe they might be useful.

        • Yes. This.

          The 16th and 17th amendments were the worst thing this nation could ever have done to itself.

          They were a definitive answer to Ben Franklin’s “A republic, if you can keep it.” The American people couldn’t keep it and didn’t want it — and now here we are, living in the federal leviathan’s effluvium and bickering over who gets to sniff the freshest stuff first.

        • The 17th spelled the end of states rights in Congress. . The 3rd is a silly one , a constitutional right to privacy would of been a better use for an amendment. The 4th is regularly ignored by the government.

          The 10th is ignored until the left finds it useful like for weed, gun bans or harassing conservatives.
          Otherwise the left thinks 535 people in Congress, a handful of judges, and a president they like should rule over everyone everywhere.

        • “The 3rd is a silly one , a constitutional right to privacy would of been a better use for an amendment. ”

          The 3rd, ignored, unknown, disrespected is THE crowinig declaration by the founders about why the constitution and BOR exist…thwarting a central committee powerful enough to field a large standing army, and making the public bear the cost of housing. Quartering troops in private homes is the ultimate “in your face” statement that the public are serfs and vassals. Troop quartering says, “You are a rebellious lot, and to keep you in your place the government must raise an army to control you. Thus, because you are the troublemaker, you will bear the expense of caring for the army necessary to ensure you are subdued.”

          The 3rd is nonsense only to people who really don’t understand what the war for independence was all about. Many of us think we know all about the first civil war, but we are unaware of how truly oppressive the British government really was.

        • “Many of us think we know all about the first civil war, but we are unaware of how truly oppressive the British government really was.”

          Oh, there are those who would love to refresh our memories on that one…

        • Sam – as often stated – our forefathers would roll in their graves to see what we have allowed to be done to the nation they created. We allow WAY worse, in many ways, than that which for which they rebelled. And died.

        • “We allow WAY worse, in many ways, than that which for which they rebelled. And died.”

          We should be ashamed we have allowed the nation to be subject to the tyranny of children.

        • A truly logical point. The direct election of Senators has led to a century of Presidential “wannabes” who only care about re-election and disregard the needs/wants of the state they represent. Granted, state legislatures can be fickle, but no more than the voting public. Today, our Senators have become imaginary Secretaries of State, Defense, Attorneys General and Shadow Presidents more interested in TV face time in hearings than addressing the wants/needs of the people.

        • The original First Amendment piques my interest. It set a scale for apportionment of the House of Representatives. District sizes would eventually top out at one representative for every 60,000 people. That would mean around 5,500 representatives in the House right now.

          The advantage would be that representatives would be much more accessible to their voters. Alaska, instead of having one representative for the entire state, would have a dozen. Wyoming, instead of one, would have ten. That means you, as a voter, would actually have a chance of talking to and influencing your representative. Elections for districts of 60,000 would be cheap. In a lot of places, you could walk those districts. In other places, it would be a few hours drive.

          This won’t happen. But I wonder what it would have been like if it had.

  3. “must face strict scrutiny.”

    This is the big takeaway, it is the KEY to ending any and all gun control laws and the RESTORATION of the 2 nd. Amendment.

        • Most of the court cases about 2nd amendment is to determine if a law does or does not “infringe” such amendment. So yes, they are compatible.

          The “shall not be infringed” is not an absolute “out-of-touch”. There are criminals who have lost their right to “live” and were executed, let alone the right to bear arm. Thus the tests to determine if such 2nd amendment rights were or weren’t infringed by a particular law are legit and do not infringe the amendment by themselves.

          We can only expect that those tests were being carried out without bias and at the right level of scrutiny, which is exactly this case.

          If we keep saying that the Bill of Rights is “out of touch” by any laws, then it will soon backfire (if have not already done so).

        • “The “shall not be infringed” is not an absolute…”

          Yet the 13th is?

          While the claim that 2A is not absolute is fun and convenient, there is a problem with that: where is the constitutional authority for any agency of government to create permissible infringements?

          If the intent of the framers was to ensure “the people” could throw off a government using a standing army, or other armed agency, to subjugate the populace, how is it the very government targeted has authority to determine what is/is not permissible in obtaining and maintaining the means to ensure the government cannot enslave the populace? Under the “not absolute” banner, any manner of infrngement can be justified.

          As to the bogus claim that having one’s life forfeit for crimes is somehow a permissible government limit on “life, liberty and the pursuit of happiness”, that is an easy one: the constitution itself delegates permission to deny life under certain circumstances. No such provision regarding firearms of the public exists. Note that there is no constitutional prohibition against making death a penalty for crimes. Likewise, there is not authority granted government to limit personal firearms, under any circumstance.

          Any limit on personal arms is a political decision, based on who holds political power to enforce such limit. We have become too comfortable with the idea that no “right” is absolute (except the 13th Amendment), because it is too hard to deal with the logical consequences of abloute rights. Once an exception to an absolute is approved, then any exception has the same validity….”common sense”.

          The founders were not idiots. If they intended the federal government be able to limit possession of private arms, they would have most clearly stated such. Possession of private arms was the single guardian against tyranny, not a bunch of words on paper about how the federal government would be governed. Arms against tyranny is the ultimate deterrent. Remove it, and you have government by leave of govenment.

        • SAFEupstateFML – that would be strict scrutiny. Shall not be infringed should not be read any other way other than strict.

    • Regardless of the subject (ie, gun control or something else), any case involving Constitutional rights should clearly be strict scrutiny, obviously. If the Bill of Rights is to be changed or abrogated, there should only be two methods recognized, Amendment or Civil War. Some jerkwad in a black robe has zero say.

  4. I saw that PSA is holding mag sales to these areas in the shoppers cart until it’s “Official” Happened to see that since I’m local to PSA.

    IMO once the court says it, ..it’s official, but I’m sure their lawyers told them not to ship yet.

    I think there should be LAPES pallets of mags dropping 24/7 this weekend..

  5. Does it take an act of Congress to decide what the difference is between stop and go? Once stupidity is given standing it never ends. Gun Control should have been canned long ago because it is rooted in racism and genocide. Not to do so gave those with what is a racist and nazi based agenda standing.
    Most people do not know that laying their Gun Rights at the feet of any Gun Control Zealot gives racism and genocide standing. Hopefully the panel took that in consideration.
    Perhaps giving certain people in CA a piece of my mind and a history lesson helped make a difference because such a ruling in CA just did not come out of nowhere and it damn such didn’t come from self servers like the forum’s resident democRat Party lint licker enuf.

    TRUMP/PENCE 2020.

    • enuf,

      Methinks Debbie is still a bit angry that you asked Tiffany to the prom instead of her all those years ago. Hell hath no fury, and all that…

  6. This was two judges from the district and one visiting judge from Texas. The Texas judge wrote a dissenting opinion, so it was a two to one decision.

    I’ve always said Texas is, when it comes to gun rights, “All hat, no cattle”.

    So the next step is the full panel of judges will be petitioned. The ruling could be upheld, it could be overturned, it could be modified.

    The ruling is a good one, but the game is far from over!

    • Comment about Texas: Wisconsin is the same. Most rural democrats have guns, but they still vote democrat. They don’t see that Madison democrats WANT to take their gun. Their US senators and representatives WANT to take their guns. They think Biden will never take their dad’s old rifle…. “We only need one gun for deer season. No one needs more than that.”

    • Dafook are you mumbling about. Texas is not in the 9th, a Texas judge would not be involved, we don’t “visit” between circuits.

      • Judge Lynn, who was the dissenting judge, seems to be the chief district judge from northern district of Texas. She was nominated by Clinton. Not sure how that worked. She is not from 9th COA, or even from any court of appeals.

      • Since judge Lynn is not in the 9th circuit, she was “designated” to the 9th circuit by the Chief Justice of the US(Roberts), upon request by the Chief Judge of 9th circuit, a Democrat nominated judge.

  7. “All judge-made law is made up.”

    The review levels are better than law; they are internal court processes, of which the courts are the sole, complete and absolute authority. Legislation cannot determine how federal courts must analyze/review a case before the bar, any more than the courts can direct the legislature on what constitutes a quorum.

  8. It’s unfortunate that this will likely not happen in the 2nd & 3rd Circuit. For some time at least, because the cases that would have ended NY’s and NJ’s magazine bans went to scotus and were turned away. A case needs to be made in the 2nd & 3rd circuit referencing this case in the 9th. And if the 2nd & 3rd is full of 0bama appointees they need to be shit canned immediately.

  9. An en banc review will be granted in the 9th only because the left wing judges outnumber the conservatives by a pretty good majority also ensuring that the decision will get tossed and be headed to the Supreme Court. With the explanation as to why the standard of review needs to be “strict scrutiny” the Supreme Court with Roberts may choose to deny review effectively affirming that “strict scrutiny” should never be used in determining whether a Constitutional right is violated. That would have even broader negative consequences for “We the People” as it would be a green light for left wing governments at all levels to run roughshod over the Constitution effectively destroying it forever. That is what is needed to open the door for a 1 world governement!!! Watch as the Supreme Court actually destroys the Bill of Rightesr with one lazy decision in which they deny certioari review of the en banc decision that will certainly come out of the 9th circuit!!

    • KRP,

      I came to say basically the same thing.

      I believe it is all but guaranteed that the United States Court of Appeals for the Ninth Circuit will quash (via an en-banc hearing) this ruling from the three-judge panel and then the United States Supreme Court will refuse to hear it on appeal.

      The only way that this outcome will change is if Trump manages to appoint (and the Senate approves) one more conservative justice (who everyone expects to actually uphold the Second Amendment to the United States Constitution) to the United States Supreme Court.

      If that happens before the Ninth Circuit reviews the case en-banc, I expect that the Ninth Circuit will let the ruling from the three-judge panel stand. Why? Because they expect that the plaintiff will appeal to the U.S. Supreme Court, the U.S. Supreme Court will hear the case, and the U.S. Supreme Court will uphold the ruling which will overturn almost all of the gun-control laws in all of the other Circuits as well. Progressives will allow the ruling to stand in the Ninth Circuit before they will enable the U.S. Supreme Court to overturn virtually all gun-control laws everywhere.

      If Trump appoints and the U.S. Senate installs another conservative justice on the U.S. Supreme court after the Ninth Circuit hears the case en-banc and overturns the three-judge ruling, then the case will likely go to the U.S. Supreme Court which will likely overturn the Ninth Circuit en-banc ruling.

      • The Kavanaugh hearings will seem pretty tame when RBG goes.

        Sorry, not sorry but hopefully it happens right after President Trump is reelected. The day after.

        • I’d be just as happy with a week before. I bet the skids are greased, the nomination could be made in one day and confirmed in 2. And that would confirm Trump’s win.

        • The Floyd riots will be a picnic compared to that. I will read her obituary at some point, I just hope the story right under it has Trump congratulating her replacement..

        • “The Floyd riots will be a picnic compared to that”.

          Are you overlooking the first-rate level of entertainment that will follow a Trump victory? There are legions of people who believe the Dims will have veto-proof majorities in House and Senate, along with a Dimwitocrat President. Denied any one of those, we will get to see what a national looney bin looks like.

        • “The Kavanaugh hearings will seem pretty tame when RBG goes.”

          It will go a lot easier if he selects a woman. They will still fling a mountain of mud, but with no where near the venom displayed in the Kavanaugh hearing.

          Expect a replay of Feinstein’s “The dogma lives loudly within you” trope…

        • “Are you overlooking the first-rate level of entertainment that will follow a Trump victory? There are legions of people who believe the Dims will have veto-proof majorities in House and Senate, along with a Dimwitocrat President. Denied any one of those, we will get to see what a national looney bin looks like.”

          I’m not counting chickens until they are hatched. Even Salena Zito is strangely silent on Trump’s chances. Strych seems to think he has a 90 percent chance of pulling it off, but I’m just not seeing how that’s possible with the naked hatred they have for him. Angry people vote, and while we’re plenty angry with their contempt of us, their hatred makes ours look like amateurs…

        • “I’m not counting chickens until they are hatched. ”

          Agree. Just noting we should be careful what we ask for.

        • But Geoff, Helmut Norpoth says it will be 362 to 176 Trump over Biden. And all around me I am already seeing the same signs of that undercurrent that carried Trump in 2016.

        • “And all around me I am already seeing the same signs of that undercurrent that carried Trump in 2016.”

          It’s far too complex to accurately model a prediction. Take the elderly vote for an example :

          “Four years ago, Trump won these voters by 7 percentage points. In the latest Washington Post/ABC News poll, Joe Biden has a 10-point edge among registered voters nationally.”

          https://www.creators.com/read/salena-zito/07/20/senior-citizens-will-be-the-deciding-factor-in-2020-election

          That is a big *problem* he must overcome if he is to win.

          I’m voting for him again, but I’m expecting him to lose, and planning accordingly.

          A pleasant surprise will be nice, and I’ll celebrate then, but not one nanosecond before. What happend to Hillary supporters in 2016 can easily happen to us this time…

  10. I would be very surprised if the 9th circuit en banc ruled against the ban. The kourt system very rarely protects the rights of the people in reality, especially when it comes to the right to the means of self defense. Yes, yes, Heller and McDonald, but what was gained out of that? The amount of hoops one has to jump through to carry or purchase a gun in DC is staggering. The amount of restrictions on what guns can be Registered and where they can be carried makes it almost not worth it. Illinois was probably going shall issue anyway.

    Also keep in mind that “strict scrutiny” is make believe, like a comment above said.

    I’d also point out that Scamdemic proves something I’ve long feared. Namely, that we will put up with anything from the State and its Media arm whether we’re armed or not. Yes, they can’t take us to the camps, but they can starve us and make the sheeple wear face diapers to conduct business. In light of Scamdemic, I’d suggest the right to bear arms as it relates to magazine capacity is somewhat irrelevant since the martial aspect of the right no longer exists.

    • Stateisevil,

      Illinois was probably going shall issue anyway.

      I don’t think that is accurate. Everything that I saw/heard indicated that the United States Court of Appeals for the Seventh Circuit dragged Illinois kicking and screaming into “shall-issue”. If it were not for the Seventh Circuit, I believe that Illinois would still be a may-issue state.

      … I’d suggest the right to bear arms … is somewhat irrelevant since the martial aspect of the right no longer exists.

      Slight quibble: I believe the martial aspect of the right still exists — the problem is that very few people seem willing to exercise it.

      • NO WAY we’d have CC in ILL without court order! May issue or shall issue…the last state to get any sort of CC.

  11. Round and round we go, where they stop the people get screwed. It’s all an act, big law comes down we get a small win there, but not really, big money speaks and we are back to square one. All of this to placate the people. Nothing will change until the people storm the Bastille….

  12. This is why we have to march out and vote not only for President Trump, but also for all the spineless, cowardly, back stabbing, weak republicans in the Senate….he can’t put more judges on the bench and replace breyer, ginsburg, and maybe Thomas ( if he decides to retire) if the democrats take the Senate. This is the main reason I voted against hilary last time, and why I am affirmatively voting for Trump this time….Judges and Justices. Taxes will rise or fall, foreign policy is good or bad…but judges can last for 30-40 years….and with Roberts on the bench we need to replace ginsburg and breyer to counter act his desire to make left wingers not be mad at him……..and go out and vote at an actual polling place on election day….that way your vote will actually count. It won’t be lost at the post office or tossed in the garbage by democrat party postal workers. They will likely be throwing out ballots from Republican voting districts, so don’t let them do that to your vote.

  13. I suspect there’s a reason that the decision was made based on strict scrutiny but claiming to be supported under intermediate, as well. The two judges probably doubt that en banc is going to accept strict scrutiny because of the implications.

  14. What does this ruling say about the handgun list in Ca? I imagine I will be limited to the Ca approved handguns, but can go out and buy larger capacity mags for these handguns. Will the manufacturers be able to offer packages for approved handguns with higher cap mags?

    Inquiring minds want to know.

  15. How about this:

    SHALL NOT BE INFRINGED.

    Scrutinize that. All talk, no action. I’ll believe it when every state in constitutional carry, or they can fucken succeed and live like blue cities in 2020.

    • Hmm. Very interesting. If the Ninth Circuit decides to hear the case en-banc, I suppose it is possible that it stands.

      • Read through the council list of state Attorneys General signed on to the case… it’ll give you some idea of what’s coming soon in Your state.

  17. But do they roll the dice and ask for en banc ? This ain’t a city this is a state. Even if they can repeal the law , it wouldn’t be moot. So if it goes en banc and get over turned and scotus takes it they are f@cked like ch@ck. They don’t want to see heller VS dc again.

    • “This ain’t a city this is a state. Even if they can repeal the law , it wouldn’t be moot.”

      Why would the jurisdiction of the appellant make a difference? Repeal is repeal.

  20. Here is the deal: Every single day we have incidents where private, law abiding citizens are being attacked on the street by mobs of 300 people! We have not seen this in our history. Police AND the military can’t respond. Politicians are encouraging the attacks, plus they are letting felons out and the felons actually kill people upon release. The few felons that do get arrested get set free within a few hours.

    Having a gun with enough ammo to be able to defend against multiple armed attackers or against 300 terrorists is very real. Additionally, the terrorists are showing up at people’s door steps: rich, poor, middle class, nobody is exempt! The terrorists are even attacking politicians who support their cause.

    I think these judges are realizing they could be the next victims themselves. They may personally need a standard capacity magazine to defend themselves at home at night – and all their neighbors fit in the same category – and the entire United States is in the same position.

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