B.L.U.F. The Ninth Circus court issues a stay pending appeal in the California magazine ban.

(1200 words)

I have written reams of electronic paper talking about how the court system “works”. At the top is the Supreme Court. The first level of Article III inferior courts is the Circuit Court of Appeals. The next level down is the Federal District Courts.

I have written about case law. Case law is set by superior courts. The Supreme Court sets the case law. The Circuit Courts then interpret that case law, setting case law for their circuit in turn. The District Courts then apply the law as interpreted by the Circuit Court case law.

If there is no case law within a circuit, then case law established by other circuits can be cited. You can cite to other circuits. If there is a consensus among the other circuits, that is a good place for to start.

Today, the Ninth Circus Court of Appeals issued a stay in —Order: Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.). They decided, over the vigorous dissent of four judges, that they were not going to actually do their jobs, again.

Under —Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008), when a TRO, Stay, or Preliminary injunction is granted, four aspects have to be determined.

1. Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
2. Whether the applicant will be irreparably injured absent a stay;
3. Whether issuance of the stay will substantially injure the other parties;
4. Where the public interest lies

This was clarified in —Nken v. Holder, 556 U.S. 418 (2009). The first two factors are “the most critical”—ECF No. 67826263 Duncan v. Bonta, No. 23-55805, slip op. at 11 When the Government is a party to the case, the balance of the equities and public interest factors merge.—id..

What all of this means, is that in order to grant a stay, the court must first determine the likelihood of success on the merits. In this case, this requires the court to first determine if the proposed conduct is within the scope of the plain text of the Second Amendment.

If the conduct is not, then The People lose. If the conduct is within the scope of the plain text, then the state is required to provide historical regulations that are analogous to the states current infringement. It is an infringement by definition if it touches fingers with Second Amendment protected rights). The state must then prove that there is a tradition of that analogous regulation, that it is not an outlier.

The Circus quotes Bruen, like most rights, the right secured by the Second Amendment is not unlimited.—id. at 3 Period in the original. This implies that this is a complete quotation. Compare this to Judge Bumatay’s quote from Bruen T]he Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.—id. at 8.

The infringers always go for the “not unlimited” or “not a regulatory straightjacket”, conveniently leaving out “nor a regulatory blank check”. Of note, the quote from Bruen is stronger than the quote for Heller because it comes later and clarifies what was said in Heller

So how did the Ninth Circus decided on the likelihood of success on the merits?

Emphasis added.

So there you have it. The Ninth Circus goes on to claim that California will be harmed if magazines come into the state because magazines pose a “significant threat to public safety.” The people will not suffer substantial injury because they can buy neutered magazines. And finishing with “the public has a compelling interest in promoting public safety, as mass shootings …”. Here, the court has substituted the word “public” for “state” in earlier means-end opinions.

The court does not even look at the merits of the case. Instead, they use nine district court decisions from other circuits. The weakest cites possible, well, maybe depending on some “experts” provided by the infringers are weaker. There is nothing in this order that addresses the three main questions:

• Are magazines “arms” under the plain text of the Second Amendment
• Is the proposed conduct protected by the Second Amendment
• Is there a history and tradition of banning entire classes of arms?

Mark Smith would say it differently, 1) Is it an arms ban? 2) Is the arm in common use today? Yes? Then the ban is unconstitutional.

When the Fourth Circuit court of Appeals heard —Dominic Bianchi v. Brian Frosh, No. 21-1255 (Court of Appeals) on the way up, they just looked and said, “We decided this in Kolbe, denied.” The Supreme Court GVR’ed Bianchi v. Frosh after Bruen.

The Fourth had put in the work with Kolbe to come to the wrong decision. They did means-end balancing and ruled for the state and against The People.

The Ninth Circus can’t even claim to be following their previous case law. They know that all of their previous case law is invalid. They must look at the merits of this case, and they are refusing.

My expectation is that The People will appeal to the Supreme Court regarding this stay. The case is not in an interlocutory state. All the evidence has been gathered and there is a good record at the district court level, thank you, Judge Benitez.

The Supreme Court is already aware of the case, they granted certiorari once before. We need to watch the emergency docket of the Supreme Court to see when The People request the stay be vacated.