California mag ban reversal 14 Aug 2020

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Dudedog said:
I am not a lawyer, and have no legal training and did not stay at a Holiday Inn last night (so for give me if I am mistaken here)

I believe 1 of the 11 will be the the Chief Judge (Clinton appointee) so guessing one against us at the start.
Out of the other 47 on the 9th 24 are Republican Appointees so about 50/50
Sad to say I am afraid it will come down to the luck of the draw.

Would it be better if we could get a full en blanc review, maybe maybe not, by part lines it seems it would.

Curious what those circumstances would be as opposed to 11.



1 SIddney R. Thomas Chief Judge Billings 1/4/1996 Clinton
2 Alfred T. Goodwin Senior Circuit Judge Pasadena 11/30/1971 Nixon
3 J. Clifford Wallace Senior Circuit Judge San Diego 6/28/1972 Nixon
4 Mary M. Schroeder Senior Circuit Judge Phoenix 9/26/1979 Carter
5 Jerome Farris Senior Circuit Judge Seattle 9/27/1979 Carter
6 Dorothy W. Nelson Senior Circuit Judge Pasadena 12/20/1979 Carter
7 William C. Canby, Jr. Senior Circuit Judge Phoenix 5/23/1980 Carter
8 Diarmuid F. O'Scannlain Senior Circuit Judge Portland 9/26/1986 Reagan
9 Edward Leavy Senior Circuit Judge Portland 3/23/1987 Reagan
10 Stephen S. Trott Senior Circuit Judge Boise 3/25/1988 Reagan
11 Ferdinand F. Fernandez Senior Circuit Judge Pasadena 5/22/1989 Bush
12 Andrew J. Kleinfeld Senior Circuit Judge Fairbanks 9/16/1991 Bush
13 Michael Daly Hawkins Senior Circuit Judge Phoenix 9/15/1994 Clinton
14 A. Wallace Tashima Senior Circuit Judge Pasadena 1/4/1996 Clinton
15 Barry G. Silverman Senior Circuit Judge Phoenix 2/4/1998 Clinton
16 Susan P. Graber Circuit Judge Portland 3/19/1998 Clinton
17 M. Margaret McKeown Circuit Judge San Diego 4/8/1998 Clinton
18 Kim McLane Wardlaw Circuit Judge Pasadena 8/3/1998 Clinton
19 William A. Fletcher Circuit Judge San Francisco 10/9/1998 Clinton
20 Ronald M. Gould Circuit Judge Seattle 11/22/1999 Clinton
21 Richard A. Paez Circuit Judge Pasadena 3/14/2000 Clinton
22 Marsha S. Berzon Circuit Judge San Francisco 3/16/2000 Clinton
23 Richard C. Tallman Senior Circuit Judge Seattle 5/25/2000 Clinton
24 Johnnie B. Rawlinson Circuit Judge Las Vegas 7/26/2000 Clinton
25 Richard R. Clifton Senior Circuit Judge Honolulu 7/30/2002 Bush
26 Jay S. Bybee Senior Circuit Judge Las Vegas 3/21/2003 Bush
27 Consuelo M. Callahan Circuit Judge Sacramento 5/28/2003 Bush
28 Carlos T. Bea Senior Circuit Judge San Francisco 10/1/2003 Bush
29 Milan D. Smith, Jr. Circuit Judge El Segundo 5/18/2006 Bush
30 Sandra S. Ikuta Circuit Judge Pasadena 6/23/2006 Bush
31 N. Randy Smith Senior Circuit Judge Pocatello 3/19/2007 Bush
32 Mary H. Murguia Circuit Judge Phoenix 1/4/2011 Obama
33 Morgan Christen Circuit Judge Anchorage 1/11/2012 Obama
34 Jacqueline H. Nguyen Circuit Judge Pasadena 5/14/2012 Obama
35 Paul J. Watford Circuit Judge Pasadena 5/22/2012 Obama
36 Andrew D. Hurwitz Circuit Judge Phoenix 6/27/2012 Obama
37 John B. Owens Circuit Judge San Diego 4/2/2014 Obama
38 Michelle T. Friedland Circuit Judge San Jose 4/29/2014 Obama
39 Mark J. Bennett Circuit Judge Honolulu 7/13/2018 Trump
40 Ryan D. Nelson Circuit Judge Idaho Falls 10/18/2018 Trump
41 Eric D. Miller Circuit Judge Seattle 3/4/2019 Trump
42 Bridget S. Bade Circuit Judge Phoenix 4/1/2019 Trump
43 Daniel P. Collins Circuit Judge Pasadena 5/22/2019 Trump
44 Kenneth Kiyul Lee Circuit Judge San Diego 6/12/2019 Trump
45 Daniel A. Bress Circuit Judge San Francisco 7/26/2019 Trump
46 Danielle J. Hunsaker Circuit Judge Portland 11/12/19 Trump
47 Patrick J. Bumatay Circuit Judge San Diego 12/12/19 Trump
48 Lawrence VanDyke Circuit Judge Reno 1/2/2020 Trump

:eek: 48....

Some say the 9th should be split up but that is off thread


I may be wrong but I don't see it ending in the 9th, whether SCOTUS decides to hear it or not we will find out.
If CA losses in the 9th they might not pursue it but I don't see that happening.
If we lose in the 9th CRPA has said they will appeal

For those of you in CA CRPA is an Amazon smile charity and could use your $ if you use Amazon and don't have a smile charity already.
Every little bit helps.
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Dudedog,

The en banc panel of eleven judges is not chosen from the pool of 48 judges that you listed above. Only the active judges of the circuit are eligible for selection. Senior judges are ineligible for selection unless they: 1) were a part of the original panel, and 2) request to serve.

That shifts the balance in favor of judges appointed by democratic presidents. It's also worth noting that Judge Bennett is a Republican appointee, but has a history of being hostile to the Second Amendment.
 
RickD427 said:
Dudedog said:
about 50/50
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... shifts the balance in favor of judges appointed by democratic presidents
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Looking at the bigger picture, it really doesn't matter how the 11 judge en banc panel rules because the losing party will appeal to the SCOTUS.

And it could take years for that to happen so if Trump wins in November, we have a good chance of SCOTUS hearing the case and ruling the magazine ban unconstitutional.
 
LiveLife said:
Looking at the bigger picture, it really doesn't matter how the 11 judge en banc panel rules because the losing party will appeal to the SCOTUS.

And it could take years for that to happen so if Trump wins in November, we have a good chance of SCOTUS hearing the case and ruling the magazine ban unconstitutional.
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So, if SCOTUS rules California's magazine ban unconstitutional does would that apply to all magazine bans?
 
LiveLife said:
Looking at the bigger picture, it really doesn't matter how the 11 judge en banc panel rules because the losing party will appeal to the SCOTUS.

And it could take years for that to happen so if Trump wins in November, we have a good chance of SCOTUS hearing the case and ruling the magazine ban unconstitutional.
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At most it would be under two years before SCOTUS decided to grant Cert or not. There's not really a backlog awaiting SCOTUS. I'm not sure where people are getting the idea it will take years to get it before SCOTUS.

Trunk Monkey said:
So, if SCOTUS rules California's magazine ban unconstitutional does would that apply to all magazine bans?
Click to expand...

Most likely.
 
LiveLife said:
Looking at the bigger picture, it really doesn't matter how the 11 judge en banc panel rules because the losing party will appeal to the SCOTUS.

And it could take years for that to happen so if Trump wins in November, we have a good chance of SCOTUS hearing the case and ruling the magazine ban unconstitutional.
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I would be very surprised if Mr. Becerra would file a certiorari request in the event that President Trump is re-elected. There is simply too much to lose. The Supreme Court seems pretty evenly divided on Second Amendment cases. One more conservative appointment will likely change that. We do know that the Supreme Court declined to hear a number of 2A cases this term, but we do not know the reasons. Duncan is a unique case in that it held for Strict Scrutiny as the level of review. That could put it over the top for review by the current court.

If the Strict Scrutiny becomes national precedent, then Mr. Becerra is going to earn the wrath of a number of his colleagues. I just don't see him taking that risk in the current environment.
 
Trunk Monkey said:
So, if SCOTUS rules California's magazine ban unconstitutional does would that apply to all magazine bans?
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The ruling will apply nationwide, but SCOTUS has punted in one way or another every Second Amendment case since McDonald/Heller. The last one before Heller was Miller in the 1930s. I wouldn’t expect SCOTUS to take any Second Amendment case.

However, today when United States Senators are getting attacked on the street outside the White House, Elected officials are openly encouraging riots, and 911 is nothing but a dial tone in many places, it is probably the best time ever to get a ruling on a Second Amendment case.
 
I don't believe the 9th has to grant the request of En Banc

While unlikely, it would be kind of fitting.

Peruta En Banc was about 28-29 months without covid and peaceful arson and looting. It took about another year to passed before SCOTUS denied.
 
danez71 said:
I don't believe the 9th has to grant the request of En Banc

While unlikely, it would be kind of fitting.

Peruta En Banc was about 28-29 months without covid and peaceful arson and looting. It took about another year to passed before SCOTUS denied.
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You are correct. The AG can only make the request. It takes a majority vote of the active judges in the Circuit to grant a rehearing.
 
Dudedog,

The en banc panel of eleven judges is not chosen from the pool of 48 judges that you listed above. Only the active judges of the circuit are eligible for selection. Senior judges are ineligible for selection unless they: 1) were a part of the original panel, and 2) request to serve.

That shifts the balance in favor of judges appointed by democratic presidents. It's also worth noting that Judge Bennett is a Republican appointee, but has a history of being hostile to the Second Amendment
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Thanks Rick

I suppose the ruling might not follow Party lines but lately they sure seem to.
 
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F-111 John said:
En banc decision reversing the lower court:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/30/19-55376.pdf
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Well, I guess we are now headed to SCOTUS ... which can potentially affect magazine capacity ruling for the entire country.

Interesting dissent comments from the ruling perhaps laying the groundwork for SCOTUS appeal?

"Dissenting, Judge Bumatay, joined by Judges Ikuta and R. Nelson, stated that the tiers-of-scrutiny approach utilized by the majority functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones. While the court can acknowledge that California asserts a public safety interest, it cannot bend the law to acquiesce to a policy that contravenes the clear decision made by the American people when they ratified the Second Amendment.

... Judge Bumatay believes that this court should have .... requires an extensive analysis of the text, tradition, and history of the Second Amendment ... Under that approach, the outcome is clear. Firearms and magazines capable of firing more than ten rounds have existed since before the Founding of the nation. They enjoyed widespread use throughout the nineteenth and twentieth centuries. They number in the millions in the country today. With no longstanding prohibitions against them, large-capacity magazines are thus entitled to the Second Amendment’s protection.

... First, the Supreme Court should elevate and clarify Heller’s 'common use' language and explain that when a firearm product or usage that a state seeks to ban is currently prevalent throughout our nation (like the magazines California has banned here), then strict scrutiny applies.

... Second, the Court should direct lower courts like this one to compare one state’s firearm regulation to what other states do (here a majority of states allow what California bans), and when most other states don’t similarly regulate, again, apply strict scrutiny."​
 
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LiveLife said:
Well, I guess we are now headed to SCOTUS ... which can potentially affect magazine capacity ruling for the entire country.

Interesting dissent comments from the ruling perhaps laying the groundwork for SCOTUS appeal?

"Dissenting, Judge Bumatay, joined by Judges Ikuta and R. Nelson, stated that the tiers-of-scrutiny approach utilized by the majority functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones. While the court can acknowledge that California asserts a public safety interest, it cannot bend the law to acquiesce to a policy that contravenes the clear decision made by the American people when they ratified the Second Amendment.

... Judge Bumatay believes that this court should have .... requires an extensive analysis of the text, tradition, and history of the Second Amendment ... Under that approach, the outcome is clear. Firearms and magazines capable of firing more than ten rounds have existed since before the Founding of the nation. They enjoyed widespread use throughout the nineteenth and twentieth centuries. They number in the millions in the country today. With no longstanding prohibitions against them, large-capacity magazines are thus entitled to the Second Amendment’s protection.

... First, the Supreme Court should elevate and clarify Heller’s 'common use' language and explain that when a firearm product or usage that a state seeks to ban is currently prevalent throughout our nation (like the magazines California has banned here), then strict scrutiny applies.

... Second, the Court should direct lower courts like this one to compare one state’s firearm regulation to what other states do (here a majority of states allow what California bans), and when most other states don’t similarly regulate, again, apply strict scrutiny."​
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To Judge Bumatay's point, in the majority opinion Judge Susan P. Graber wrote:

Judge Bumatay’s dissent would jettison the two-step framework adopted by us and our sister circuits, in favor of a “text, history, and tradition” test. Dissent by J. Bumatay at 108. Plaintiffs have not sought this test, despite having filed supplemental briefs after we granted rehearing en banc, and Defendant has not had a chance to respond. The dissent nevertheless asks us to disrupt a decade of caselaw and to create a circuit split with ten of our sister circuits, not because of any recent development in the law, but because of the dissent’s preferred reading of the same Supreme Court cases that we have applied many times. We reject the dissent’s invitation. Our test is fully consistent with every other circuit court’s approach and, for the reasons that follow, we agree with those decisions that have thoroughly and persuasively rejected the dissent’s alternative approach to Second Amendment claims.​
 
The decision is now out and it went pretty much as expected.

I would expect that Ms. Duncan will request Certiorari from the Supreme Court.

The "Battle Lines" really do seem to be developing over the standard of review to be given to such cases. But it doesn't look like Duncan is going to be the case that will resolve the question. The Supreme Court has just heard arguments in NYSPRA v Bruen and a lot of the Justice's questions went the to standard of review that should be given such cases.

If the Supreme Court decides that Strict Scrutiny is appropriate for core constitutional rights, then expect that the Duncan case will quickly fall, and probably through a Vacate and Remand, rather than a full hearing and decision.

Stay tuned. This one ain't over yet.
 
RickD427 said:
But it doesn't look like Duncan is going to be the case that will resolve the question. The Supreme Court has just heard arguments in NYSPRA v Bruen and a lot of the Justice's questions went the to standard of review that should be given such cases.
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If strict scrutiny doesn't apply to enumerated rights explicitly protected in the Bill of Rights, there's no Constitution at all.
 
I am not at all surprised the ban was appealed by the 9th Circuit. They are notoriously an anti-gun court. I am surprised there were 2 judges of the 9th that dissented with the majority.
 
RickD427 said:
LiveLife said:
Well, I guess we are now headed to SCOTUS
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I would expect that Ms. Duncan will request Certiorari from the Supreme Court.
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CRPA is working to request Certiorari to the SCOTUS.


And since 10+ round capacity magazine possession question in CA came up in another thread, I will repost the update from CRPA here.

According to CRPA, it looks like gun owners who possess magazines over 10 round capacity may continue to possess them - https://crpa.org/news/blogs/breakin...statewide-ban-on-standard-capacity-magazines/

"11/30/21 - CRPA WILL ACT PROMPTLY TO PRESERVE THE STATUS QUO WHILE CRPA REQUESTS CERTIORARI TO THE SUPREME COURT. For now, it appears that gun owners who possess magazines over 10 rounds may continue to possess them while the parties work to exhaust their avenues for rehearing and appeal. CRPA will release additional information on the status for individual gun owners as it becomes available."​

And legal possession of magazines over 10 round capacity applies to those obtained by end of "Freedom Week" when Judge Benitez ruled CA magazine ban "unconstitutional" and before a stay was placed at 5:00 PM Friday, April 5, 2019 - https://crpa.org/news/blogs/crpa-al...h-large-capacity-magazine-court-ordered-stay/
 
LiveLife said:
CRPA is working to request Certiorari to the SCOTUS.


And since 10+ round capacity magazine possession question in CA came up in another thread, I will repost the update from CRPA here.

According to CRPA, it looks like gun owners who possess magazines over 10 round capacity may continue to possess them - https://crpa.org/news/blogs/breakin...statewide-ban-on-standard-capacity-magazines/

"11/30/21 - CRPA WILL ACT PROMPTLY TO PRESERVE THE STATUS QUO WHILE CRPA REQUESTS CERTIORARI TO THE SUPREME COURT. For now, it appears that gun owners who possess magazines over 10 rounds may continue to possess them while the parties work to exhaust their avenues for rehearing and appeal. CRPA will release additional information on the status for individual gun owners as it becomes available."​

And legal possession of magazines over 10 round capacity applies to those obtained by end of "Freedom Week" when Judge Benitez ruled CA magazine ban "unconstitutional" and before a stay was placed at 5:00 PM Friday, April 5, 2019 - https://crpa.org/news/blogs/crpa-al...h-large-capacity-magazine-court-ordered-stay/
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There may be a little too much optimism caused by the CPRA news release of 11/30/2021.

There is currently a stay on enforcement of California's ban on the possession of large-capacity magazines. That stay was issued by the Trial Court Judge. It still remains in effect. But we have to remember that Ninth Circuit's decision requires that judge to enter judgement for the defendants. That action hasn't occurred yet. It is waiting for the Ninth Circuit to issue their "Mandate" corresponding to the decision. Under the Federal Rules of Appellate Procedure there is a time delay between a decision being issued, and the time it becomes effective. That time delay can be as short as 21 days. That time delay is intended to allow parties to seek a rehearing, or Supreme Court review of the decision. They may apply for a stay during this period. The whole idea is to prevent "Judicial Whiplash" if the "rules" change because of the decision, and then change again if a stay is issued.

Once the "Mandate" is issued, the Trail Judge pretty much loses the ability to keep the stay on enforcement. There is no remaining question before him that the stay would serve. At this point, if Ms. Duncan does file for Certiorari from the Supreme Court, she would have to request a stay from the Ninth Circuit. The FRAP does allow her to request such a stay, but it's up to the discretion of the Ninth Circuit to grant it, or deny it.

There is also a peculiarity with the Ninth Circuit. In all other circuits an "en banc" rehearing involves all non-recused active judges of the court. Because the Ninth is so large, it's en banc panels consist of eleven judges, not the entire court. The circuit rules allow for a full court "en banc" rehearing of an eleven judge panel "en banc" rehearing (an "en banc" to second power). I've never seen it done, but the rules allow for it. In the event that Ms. Duncan does request an "en banc to the second power" rehearing, she also has the same ability to request a stay, which the court also has the discretion to grant, or deny.
 
Update 12/21/21: Stay of Mandate in Duncan Case Granted (Duncan v Becerra, now Duncan v Bonta) - https://crpa.org/news/alert/breaking-stay-of-mandate-in-duncan-case-granted/

"Plaintiffs, including CRPA, acted quickly and filed a Motion to Stay Mandate which would keep the status quo in place while a Writ of Certiorari is filed with the Supreme Court to appeal the decision of the en banc panel. On December 20th the Ninth Circuit granted the Motion to Stay the Issuance of Mandate for a period of 150 days while the filings are completed for the Supreme Court.

With this Stay of Mandate granted by the court, it essentially means everything carries on as it has for the past several years. Those individual who lawfully own or possess magazines holding more than 10 rounds are allowed to keep them while the case is appealed."​
 
Duncan v Bonta update by Anthony Miranda, an attorney in California

https://rumble.com/vzhlqi-california-magazine-ban-and-assault-weapon-ban-case-updates.html


CRPA Files Petition For Supreme Court Review In Its Challenge To California’s Ban On Standard Capacity Magazines - https://crpa.org/news/blogs/crpa-fi...lifornias-ban-on-standard-capacity-magazines/

3/3/22: The Supreme Court petition filed yesterday asks the Court to review the en banc decision, observing that, in the years since Heller, too many states have doubled down on their disdain for the People’s right to keep and bear arms, imposing increasingly severe restrictions on protected Second Amendment conduct. California, of course, has long been at the forefront of this rights-squelching practice. And the courts, for their part, have done precious little to suppress it. To the contrary, opinions like the Ninth Circuit en banc decision in Duncan all but encourage the states to continue thumbing their nose at the Supreme Court and its decisions in Heller and McDonald.

CRPA argues in its petition, “[l]ike other courts upholding such laws …, the Ninth Circuit approved California’s confiscatory law by applying a dilutive two-step mode of analysis that resembles no other form of heightened scrutiny but operates almost exactly like the balancing approach expressly rejected by this Court in Heller.” CRPA also argues that it is time for the Court to accept the Ninth Circuit’s invitation to step in and “tell [the lower courts] to stop” disrespecting the Second Amendment by applying an utterly toothless form of “heightened” scrutiny that almost guarantees that any law that intrudes upon the right to arms will be upheld.

CRPA President Chuck Michel says he is “proud of CRPA’s efforts to put an end to California’s confiscatory ban on magazines that come standard with some of America’s most popular handguns and rifles. No matter what the outcome of Duncan, though, CRPA will continue its tireless fight against our state’s draconian gun control regime.”

CRPA now awaits yet another ruling in its historic gun-rights lawsuit. The decision could come at any time, but it could be held up in light of New York Rifle & Pistol Association v. Bruen, which the Supreme Court heard last fall and could have a significant impact on the Court’s handling of Duncan.​
 
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The 9th Circuit en banc has vacated and remanded Duncan v. Bonita (previously Becerra) back to the district court. This would be the same district court that originally issued an injunction against enforcing the magazine ban and issued a summary judgement against the law.

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/19-55376.pdf

ORDER

The judgment in this case is vacated, Duncan v. Bonta, 142 S. Ct. 2895 (2022), and this case is remanded to the district court for further proceedings consistent with New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ____, 142 S. Ct. 2111 (2022).

Judge Bumatay and Judge VanDyke dissent from the order remanding this case to the district court.

The parties shall bear their own attorney’s fees, costs, and expenses. This order constitutes the mandate of this court.

VACATED and REMANDED. ​
 
F-111 John said:

The judgment in this case is vacated, Duncan v. Bonta, 142 S. Ct. 2895 (2022), and this case is remanded to the district court for further proceedings consistent with New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ____, 142 S. Ct. 2111 (2022).
​
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That would seem to imply that they feel it is not consistent with the cited ruling. I wonder how they came to that conclusion.
 
F-111 John said:
The 9th Circuit en banc has vacated and remanded Duncan v. Bonita (previously Becerra) back to the district court.
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This was expected and judge Benitez will likely rule the case unconstitutional again post Supreme Court Bruen ruling but this is "stall tactic" CA is using to delay the case, just like Miller v Bonta.

So instead of 9th Circuit making a final ruling in line with Supreme Court's Bruen ruling, the case will be kicked back down to the district court for judge Benitez to rule the case unconstitutional again; then for the case to be appealed back up to the Supreme Court to buy some time while the "antis" hope the Supreme Court bench make up will change (Not likely). But that's the only option left for the "antis" and looks like that's what is happening.

Current running updates on Duncan v Bonta:

July 2022: Initial responses to case being vacated and remanded from the Supreme Court back to 9th Circuit - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-7#post-12366383

August 2022: 9th Circuit En Banc panel requesting supplemental briefs - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-7#post-12373032

August 2022: 9th Circuit supplemental briefs review and considering sending the case back to judge Benitez for reconsideration - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12391171

How judge Benitez will likely rule on the remanded case - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12377015

Summary of judge Benitez original ruling indicating why reconsideration will likely end up finding CA magazine ban unconstitutional post Bruen ruling application of "text and history" only - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12381111
 
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