On September 22nd, Judge Benitez entered his decisions, finding that California’s ban on magazines was unconstitutional. Later that afternoon, the state gave notice of its appeal to the Ninth Circuit. On October 2nd, the temporary stay issued by Judge Benitez will expire. If the Ninth Circuit does not issue a stay before then, California will have its second freedom week in four years.
If there is such a tight schedule, why did the state delay until Tuesday the 26th to file for an Emergency Stay?
The state is arguing that they need the stay because having magazines “flood into the state” will cause death in the street and more mass shootings. Emotional blackmail.
What is their reason for an appeal?
The district court’s application of the standard announced in New York State Rifle & Pistol Ass’n, Inc. v. Bruen
, 142 S. Ct. 2111 (2022), is deeply flawed, and the Attorney General is likely to succeed on the merits of his appeal. Since Bruen
, ten other federal district courts have considered Second Amendment challenges to similar restrictions on large-capacity magazines. All but one of those courts has rejected the challenge (or found it unlikely to succeed), concluding that the text of the Second Amendment does not protect the plaintiff’s conduct, or that the challenged law is consistent with the Nation’s historical tradition of firearm regulation, or both. See infra
pp. 10-12. In reaching a different conclusion, the district court here distorted Bruen’s
methodology, discounted or ignored relevant historical analogues, and relied on untenable and unsupported premises. At a minimum, this appeal raises serious and substantial legal questions justifying a stay pending appeal.
—ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2–3 (9th Cir.)
I am going to go back to the 2017 case of Duncan v. Becerra
because Judge Benitez got it right, but only by ignoring the rules. The Ninth Circuit had precedence saying that Second Amendment challenges were determined by means-end analysis. The Ninth claimed that was the correct reading of Heller
. Judge Benitez was in an inferior court. The Ninth Circuit court was his boss. He disobeyed them in granting the injunction.
This is worth reviewing. His analysis was part of the basis of Bruen. He got it right, but when we get upset when the inferior courts fail to follow the Supreme Court’s clear rulings, we should see that this inferior court failed to follow the Ninth’s clear rulings.
Lower courts would rather not be first in any major decision. This is likely why the Fourth and Second Circuit haven’t released their opinions. They would prefer those first cases to come from some other circuit, so they don’t get slapped down.
When arguing a case, the parties want to be able to reach for the highest authority they can. Citing legislation, legislative history, doesn’t work very well. What works is when the party can point to a superior court’s ruling on the legislation.
Some kid says, “I don’t have to identify because the law says I only have to identify if I have been lawfully arrested. I’m not under arrest, I don’t have to ID.” This might be true. It doesn’t mean much. If that same kid points to a district court ruling that says the same thing, that might mean something, but only if that district court oversees this area.
If the circuit court overseeing the area has said the same thing, that holds still more weight.
Strangely enough, a Supreme Court ruling does not. That’s because the Supreme Court’s rulings have to be “interpreted” by the appeals court.