Update to
Duncan v Bonta (CA magazine ban) -
https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-14#post-12725683
Here we are with stay expiring and I am interested in how the 9th Circuit's "not typical" taking over the case by panel of judges will proceed since the Supreme Court already remanded the case back down saying the 9th Circuit got it wrong post Bruen ruling.
Not surprisingly, 9th Circuit En Banc sided with CA to stay judge Benitez's ruling -
https://michellawyers.com/wp-conten...nts-Emergency-Mtn-for-Stay-Pending-Appeal.pdf
On September 22, 2023, the district court issued an order declaring Section 32310“unconstitutional in its entirety” and enjoining California officials from enforcing the law. On September 26, Defendant Rob Bonta, the Attorney General of California, filed an emergency motion for a partial stay pending appeal.
The Attorney General seeks to stay “all portions of the order except those regarding Sections 32310(c) and (d), which relate to large-capacity magazines that were acquired and possessed lawfully prior to the district court’s order granting a permanent injunction.”
We grant the motion.
... First, we conclude that the Attorney General is likely to succeed on the merits. (Page 2)
... Second, the Attorney General has shown that California will be irreparably harmed absent a stay pending appeal by presenting evidence that large-capacity magazines pose significant threats to public safety. (Page 4)
... Third, it does not appear that staying portions of the district court’s order while the merits of this appeal are pending will substantially injure other parties interested in the proceedings. (Page 5)
... Finally, we conclude that the public interest tips in favor of a stay.
... In sum, we conclude that a stay pending appeal is warranted. We emphasize that at this stage of the litigation, we decide only whether to stay, in part, the district court’s order while this appeal is pending.Some of our colleagues have raised procedural questions regarding the propriety, under circuit rules and practices, of the en banc panel’s decision to accept this appeal as a comeback case. (Page 5)
... Here, the en banc panel has exercised its discretion to keep the comeback appeal, as our rules contemplate. “[W]hen a case is heard or reheard en banc, the en banc panel assumes jurisdiction over the entire case . . . General Order 6.4, moreover, provides that emergency motions in potential comeback cases are directed to the previous panel that heard the case, which in this case, is the en banc court. Thus, both this appeal andthe motion for an emergency stay are properly before the en banc panel.
... One of our colleagues raises novel questions about whether our rules areconsistent with 28 U.S.C. § 46(c). We have asked the parties to brief these issues and will address them in due course.
The Attorney General’s emergency motion for a partial stay pending appeal is GRANTED. (Page 6)
So no second "Freedom Week" as case proceeds forward but there are interesting dissents raised.
Ex FPC attorney discuss 9th Circuit granting of stay
R. NELSON, Circuit Judge, dissenting: I join Judge Bumatay’s dissent, as the majority’s decision to stay the district court’s order pending appeal cannot be squared with New York State Rifle & Pistol Association, Inc. v. Bruen ... 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 ... Our General Orders do not require this. And we have never followed this process in such circumstances ... The majority, however, chose a third option—one that raises serious questions about this panel’s statutory authority under § 46(c) that we must now address ... 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.
BUMATAY, Circuit Judge, joined by IKUTA, R. NELSON, and VANDYKE, Circuit Judges, dissenting: For years, this court has shot down every Second Amendment challenge to a state regulation of firearms ... We got here by concocting a two-part tiers-of-scrutiny test ... 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.
... California’s ban on large-capacity magazines has moved up and down the federal courts since 2017 ... The district court again ruled that California’s large-capacity magazine ban violated the Constitution—this time using the clear instructions from Bruen. In a thorough 71-page opinion, the district court held that magazines were protected arms under the Second Amendment and that California failed to meet its burden of showing a historical analogue for the prohibition.
Three times now, the Supreme Court has warned courts not to treat the Second Amendment as a disfavored right. 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.
In this video I break down the 9th Circuit order in the Duncan v. Bonta CA magazine ban case!🇺🇸 Support the Channel🇺🇸Join USCCA http://usccapartners.com/...
www.youtube.com