A few weeks ago, we reported that US District Judge Roger T. Benitez had once again ruled California’s magazine ban to be unconstitutional. This was the second time Judge Benitz ruled against the ban, with the primary difference between the two rulings being that this time he was able to cite the Supreme Court’s landmark Bruen Decision. So, while Judge Benitez’s first decision was strong, this latest decision was all but ironclad.
California, of course, disagreed as Benitez knew they would. The judge immediately granted a 10-day stay on the decision so California could appeal. The case, Duncan v. Bonta, names California Attorney General Rob Bonta as defendant in his role as California’s chief law enforcement officer. The case has been around so long (six years) that it was originally Duncan v. Becerra, referencing Bonta’s predecessor.
Not the First Time
That original 2017 case was appealed to the Ninth US Circuit Court of Appeals, which is notoriously anti-Second Amendment, though not all its judges fit that description, as we will see. Standard procedure for such an appeal is for a 3-judge panel to hear the appeal, after which either party can appeal to the Court’s en banc panel, meaning a larger slate of Ninth Circuit judges with the authority to make a final ruling, unless the case is taken by the Supreme Court.
The 3-judge panel upheld Judge Benitez’s ruling in a 2-1 decision. California appealed to the en banc panel, which reversed both Benitez and the 3-judge panel. Duncan then appealed to the Supreme Court. But before the case could be heard, a little thing called the Bruen Decision was handed down. The Supreme Court sent Duncan v. Bonta back to the Ninth Circuit last year with instructions to reconsider the case in light of Bruen.
The Ninth Circuit should have done just that, but the majority disagreed with Bruen, so they, in turn, kicked it back down to Benitez with the same instructions. The Ninth Circuit knew what Benitez’s decision would be, but it has become clear that their goal for this case is to delay and tie it up in red tape. Some speculate, with much justification, that the Ninth Circuit’s majority faction hopes the political winds will change, vis-à-vis the Supreme Court, before the case can once again rise that high. So, let’s look briefly at how they seem to be doing that.
An Irregular Appeal
Once California appealed Judge Benitez’s latest decision, the Ninth Circuit should have followed normal procedure by assigning the case to a 3-judge panel. Instead, the Court took the unprecedented step of skipping that panel and listing the case for an en banc review. “So, what’s the big deal,” you may ask. That’s a great question, and one I asked too. Wouldn’t that expedite the case and move it closer to a final disposition? Well, yes and no.
Courts operate on procedure and precedent. The 3-judge panel’s purpose is to hear the appeal and decide whether to uphold or overturn the lower court’s decision. In so doing, the panel’s judges may spot and address any holes in the original decision, or comment in such a way that an en banc panel would have more information should that panel hear the case. Picture the 3-judge panel as part of building the case as it moves forward.
There’s a reason that the Supreme Court rarely hears a case that hasn’t gone through the entire appeals process. They want every legal avenue to have been explored before they make their final ruling. While that may seem tedious to the layman, it actually a good thing because the process teases out all the evidence and arguments beforehand, giving the Supreme Court a mature body of evidence and precedent to consider.
But the Ninth Circuit took a detour by skipping the 3-judge panel, prompting accusations of partiality on an ideologically driven issue. The Court also blocked certain judges from serving on the en banc panel, which some have seen as a further means of stacking the deck. Given the Ninth Circuit’s past stances on Second Amendment cases, that seems to be a fair assumption. But gun rights advocates aren’t the only ones saying that. Two Ninth Circuit judges have openly criticized the move, publicly questioning the majority’s motives. Finally, the Supreme Court sanctioned the Ninth Circuit in 2019 ignoring proper en banc procedure.
The Ninth Circuit Stays Judge Benitez’s Decision. Again.
The Ninth Circuit’s en banc panel, on a 7-4 vote, ordered a stay on Judge Benitez’s decision, as expected. But their deliberations, or lack thereof, were patently absurd. The entire majority decision was based on the fact that several states currently enforce a magazine ban, therefore such bans must be Constitutional. Never mind that legal challenges are currently proceeding against those bans, but none has reached the stage of Duncan v. Bonta, which has been in the system longer and is a far more mature case.
The Court also ruled that Attorney General Bonta successfully made his case that California would face “irreparable harm” were the stay not granted. Again, most states do not have such bans, and they do not have notably higher crime rates than California. In fact, many are lower. The Court noted that California would inevitably be flooded with “large capacity magazines” if the stay were not granted, with no explanation of why that’s a bad thing, other than they apparently believe it to be so.
There was no serious application of Bruen or Heller, as the Supreme Court directed when the case was remanded last year. The Court did not apply the Second Amendment’s text, nor did it address the nation’s “historical text and traditions,” as required by Bruen. Instead, the Court engaged in the same balancing test that Bruen explicitly forbids in a Second Amendment case. In other words, the Ninth Circuit thumbed its nose at Heller, Bruen, and the Supreme Court.
Four Judges Dissent
Four Ninth Circuit judges dissented, citing the Court’s stance on Bruen, its unusual treatment of the Second Amendment, and its disregard for established procedure. The dissenting opinions, issued by Judges Bumatay, VanDyke, Ikuta, and Nelson, eviscerated the Court’s approach to the Second Amendment. Here are some excerpts from those dissents, the first authored by Judge Bumatay:
“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.”
“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.”
“Three times now, the Supreme Court has warned courts not to treat the Second Amendment as a disfavored right (Heller, McDonald, and Bruen). We should follow the Supreme Court’s direction. Reviewing our historical tradition consistent with Bruen demonstrates that the Second Amendment does not countenance California’s ban on large-capacity magazines. Because the majority once again deprives Californians of a fundamental right, we respectfully dissent.”
Judge Nelson issued a separate written opinion, concurring with Judge Bumatay, but also calling out the Ninth Circuit’s questionable practices in determining who should, and should not hear the appeal. He addressed the 3-judge panel issue, as well as the Court’s decision to bar certain judges from sitting on the en banc panel. Judge Nelson closed by saying, “We should not proceed down such an uncertain statutory path, particularly when viable alternatives are available. Our decision to proceed with this process undermines public confidence in the process and our ultimate decision. I respectfully dissent.”
Fast Track to the Supreme Court?
The California State Rifle & Pistol Association has since announced that they will petition the Supreme Court to stop the Ninth Circuit’s stay on Judge Benitez’s original ruling that the California magazine ban is unconstitutional. The CSRPA will cite the Ninth Circuit’s irregular procedures and its disregard for Bruen as justification for Supreme Court action.
Whether the Supreme Court will acquiesce remains to be seen. The Court doesn’t take kindly to lower courts who blatantly ignore their orders, as the Ninth Circuit appears to have done. On the other hand, the Supreme Court does not usually accept petitions in cases where the appeals process has not been otherwise exhausted. They often wait for opposing decisions in different appellate courts before they step in to parse between each decision.
It’s difficult to say here which inclination would be the more powerful. It does seem that, having sent the case back once before with explicit instructions, which were ignored, the Supreme Court may be a bit more likely to look at this one. But we won’t know until we do.
Either way, Duncan v. Bonta is making big waves that California is desperately trying to stop. If this case falls for the good guys, and it’s hard to see how it can’t when adjudicated properly, there will be nationwide consequences. Because if the Supreme Court rules the California ban unconstitutional, that means they’re all unconstitutional. Let’s hope we reach that point sooner than later. We’ll keep you updated.
