Ninth Circuit decision shows it's still playing games with our fundamental rights

(AP Photo/Rich Pedroncelli)

The Ninth Circuit Court of Appeals’ streak of ruling against the Second Amendment remains intact, though technically the latest decision by the court doesn’t completely foreclose the possibility of gun owners eventually obtaining a legal victory. Still, the Ninth Circuit’s en banc decision allowing California’s ban on “large capacity” magazines to remain in place despite U.S. District Judge Roger Benitez’s recent ruling declaring the law unconstitutional leaves little doubt about what a majority of judges will do when they eventually hold a trial on Duncan v. Bonta.

Not once in the fifteen years since the Heller case was decided by the Supreme Court has the Ninth Circuit ever found a gun control law to violate the constitution, and Tuesday’s decision granting a stay on Judge Benitez’s order sent another strong signal that the court will once again give the green light to California to violate the fundamental rights of residents.

Seven of the eleven judges on the en banc panel rejected Benitez’s ruling, declaring instead that the plaintiffs are unlikely to win on the merits of their case and that California would suffer irreparable harm if gun owners were once again free to purchase ammunition magazines that can hold more than ten rounds.

In a blistering dissent authored by Judge Patrick Bumatay, four of the judges rebuked their colleagues for both the outcome and the process of the decision to impose a stay.

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.

Yes they do, but they’re not going to get it with the current makeup of the Ninth Circuit. In fact, this afternoon the en banc panel decided to play even more games with Duncan.

The Ninth Circuit seems to be playing “Keep-Away-From-SCOTUS” with Duncan and every other Second Amendment-related case in the circuit. Now the question is whether or not the Supreme Court will step in and grant that relief at the earliest possible stage, or whether they’ll wait for the Duncan case to be fully litigated at the Ninth Circuit before taking the issue up once again.

Remember, Duncan is one of four cases that SCOTUS accepted after Bruen, vacating the lower court decisions and ordering a review in light of Bruen‘s holdings. The Court has already taken an interest in the case, but that doesn’t guarantee that a majority of justices believe its time to intervene. In fact, that hasn’t happened once since Bruen, with the Court turning away emergency appeals in challenges to New York and New Jersey’s carry restrictions, Illinois’ ban on “large capacity” magazines and so-called assault weapons, and most recently, New York’s new ammunition background checks.

I’d love to believe that this time will be different, but I’m just not convinced that’s the case. There’s a compelling argument to be made in favor of SCOTUS intervention, but the same is true for all of the other lawsuits referenced above. I hope I’m proven wrong, but the Supreme Court granting an emergency appeal in a 2A case would be almost as much of a surprise as the Ninth Circuit concluding that any gun control law is a violation of our Second Amendment rights.