March 2, 2024


AC Unity 556 AK Magazine
AC Unity 5.56mm AK magazine. IMG Jim Grant

On October 10, 2023, an en banc panel granted an emergency motion for a partial stay pending appeal of the District Court’s order enjoining enforcement of the unconstitutional ban on magazines that hold more than 10 rounds. Judge R. Nelson details irregularities in the way the Ninth Circuit has handled this case. A detailed dissent by Judge Bumatay was joined by Judges Ikuta, R. Nelson, and VanDyke, J.  The details published in the dissent validate the clear indications the Ninth Circuit has been shockingly biased against the Second Amendment in the Bill of Rights for 15 years.

First, the Ninth Circuit scrapped the established procedure by using the previous en banc panel instead of having existing, active judges vote on the use of a new panel. Using this dubious option is an obvious way to prevent changes in the Ninth Circuit from affecting the outcome of the en banc court. From Judge R. Nelson, dissenting, p. 9-10:

But I have a more fundamental concern with the majority’s decision to proceed with this new appeal en banc in the first instance. No other circuit court would allow a prior en banc panel to hear a comeback case without an intervening majority vote of the active judges. In 2022, this panel remanded the prior appeal to the district court and the mandate issued. When this new appeal was filed, the appeal could have been sent to a three-judge panel; or a new en banc vote could have been requested from “all circuit judges in regular active service,” 28 U.S.C. § 46(c). Both those options are firmly rooted in § 46’s statutory text and consistent with our General Orders. Moreover, either option would avoid disenfranchising seven new active judges (a full quarter of the court’s active judges) from participating in this new appeal. Our General Orders do not require this. And we have never followed this process in such circumstances.

Judge Bumatay writes an authoritative dissent of thirty pages. Here are the highlights, showing the procedural shenanigans the Ninth Circuit has been using to circumvent the Constitution and its own procedures. Starting on p. 10:

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. 1087, 1147 (9th Cir. 2021) (en banc) (Bumatay, J., dissenting).

Several of us warned that our precedent contradicted the commands of both the Constitution and the Supreme Court. See id.(Bumatay, J., dissenting, joined by Ikuta & R. Nelson, JJ.); 1159 (VanDyke, J., dissenting). 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. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–31 (2022). 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.” Id. at 2127.

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.

It is unusual to see a dissent so vigorously eviscerate the opinion of an en banc panel. A majority of the Ninth Circuit is shown not to care about Supreme Court directives, precedent, the rule of law, their own procedures, or even California statutes. They care about one thing: imposing their desire to gut the Second Amendment above all else.

The Ninth Circuit has been ideologically Progressive left for decades. Gun Control is in Progressivism’s DNA. President Trump was able to appoint a significant number of originalists to the Ninth Circuit. In effect, the majority of Progressive judges on the Ninth Circuit voted to violate the procedure to disenfranchise the new judges in this case. In summation, Judge Bumatay’s powerful dissent closes with this:

Over and over, our circuit has enjoined government actions that would lead to “the deprivation of constitutional rights,” much like the district court did here. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (simplified). We have done this for the First Amendment, Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 731 (9th Cir. 2022), the Fourth Amendment, Melendres, 695 F.3d at 1002, and the Fifth Amendment, Rodriguez, 715 F.3d at 1144–45. Today, the majority proves yet again that our court treats the Second Amendment as somehow inferior to the others. But the right of the people to keep and bear arms cannot be dismissed as “second-class.” McDonald, 561 U.S. at 780; Bruen, 142 S. Ct. at 2156. 

This court has repeatedly acquiesced to the violation of Californians’ right to bear arms. Now it does so again, without even analyzing the merits of this case. Enough should be enough. 

We respectfully dissent.

Judge VanDyke, J. wrote a powerful dissent on the September 28 precursor to this opinion, detailing the shenanigans in the Ninth Circuit which allowed this en banc panel to impose their preferred policy decision.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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