The following is the dissent of Judge VanDyke in <i>Duncan v. Bonta.  It is not a legal argument.  He leaves that for his fellow judge, Judge Bumatay.

Judge VanDyke and Judge Bumatay are two of the voices of sanity coming out of the Ninth Circuit court.

This dissent is a justifiable take-down of the actions of the Ninth Circuit court since, well, the 1960s. It was written before Bruen.  The observations about the Ninth Circuit continue to be true today, post Bruen.

When this case was GVR from the Supreme Court, the Ninth Circuit punted it back to Judge Benitez, at the district level, I expected a quick response.  It was not quick.

Today, while thinking about it, I believe that Judge Benitez was actually playing a waiting game before issuing his ruling.

Everybody knew that the state was going to appeal Judge Benitez’s ruling.  The Ninth Circuit’s administrative panel was likely, no highly likely, to grant a stay.  We all knew this.

But, and this is a huge but, the case would then be assigned to the merits panel.  It is my belief that Judge Benitez was waiting for a favorable merits panel before issuing his opinion.

This is why the Ninth Circus began its razzle-dazzle tap dance, claiming the case was a “come back” to be assigned to the same en banc panel that had ruled against The People originally.

If they had not been able to take it to the en banc panel, we would have had another favorable ruling from a merits panel in the Ninth Circuit.

This is pretty easy reading.  There are a few citations, but it is not overly heavy on them.  The language is written for The People and not for lawyers.

Enjoy.

I largely agree with Judge Bumatay’s excellent dissent. And to paraphrase James Madison, if judges were angels, nothing further would need be said. But unfortunately, however else it might be described, our court’s Second Amendment jurisprudence can hardly be labeled angelic. Possessed maybe—by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. Those views drive this circuit’s caselaw ignoring the original meaning of the Second Amendment and fully exploiting the discretion inherent in the Supreme Court’s cases to make certain that no government regulation ever fails our laughably “heightened” Second Amendment scrutiny.

This case is par for the course. The majority emphasizes the statistical rarity of law-abiding citizens’ need to fire more than an average of 2.2 shots in self-defense, but glosses over the statistical rarity of the harm that California points to as supporting its magazine ban. Instead of requiring the government to make an actual heightened showing, it heavily weighs the government’s claim that guns holding more than 10 rounds are “dangerous” (of course they are—all guns are) against a self-defense interest that the majority discounts to effectively nothing. Once again, our court flouts the Supreme Court’s exhortation against such “a freestanding ‘interest-balancing’ approach” to the Second
Amendment. District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

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I added some nasty pictures of my very messy and dirty shop after the MORE

Yesterday was another cleaning day. I tore the rotary table apart to inspect and clean it.

As expected, there were several areas that were out of sight that needed to be deburred.

Taking it apart was straightforward.

All but one machined surface was nicely done. For a slow speed tool, it is very nice.

That one place was the actual worm. The leading thread, which isn’t in contact with the worm-gear, was buggered to hell and gone, razor sharp and just plain nasty.

A bit of work with a file and that was fixed. The good news is that the shop towel I was using discovered that razor and not my fingers.

I will be redoing parts of the cleaning with some serious degreaser. I wasn’t able to get it entirely clean.

There was nasty grit in places. All the grit has been removed.

I intend to put it back together today. I’ll have to replace one socket head screw because the head stripped while removing the screw. This means I need to find my box of metric socket head screws. It shouldn’t be that difficult.

All said, I’m happy with this purchase.

Tomorrow the dividing plates arrive. I hope that the inner hole matches the shaft they are to go over. If I need to machine a bushing for the two plates, that’s no big deal.

The rotary table is missing the three tapped holes to hold the dividing plates in place.

This is not an issue. The disk where the holes go is a separate casting. It will go in the milling machine with no issues. I’ll either transfer punch the holes or I will do a simple 3 hole pattern using the DRO.

If I was being really cool, I would mount it on the rotary table and drill and tap the holes that way.

P.S. I finished the new chuck key for the old chuck. It looks damn nice. I’m actually proud of my work on it. I might have to polish one handle to make it look a little better, but neither the less, it is pretty.
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Take the time to read some quotes from Judge VanDyke. It is worth the time.

Once again, our court flouts the Supreme Court’s exhortation against such “a freestanding ‘interest-balancing’ approach” to the Second Amendment. District of Columbia v. Heller, 554 U.S. 570, 634 (2008). — Judge VanDyke.

I’ve described before how our circuit’s version of Second Amendment “heightened” scrutiny has no height. It is practically indistinguishable from rational basis review. — Judge VanDyke

Most of this comes from Judge VanDyke’s dissent in —Duncan v. Bonta, 19 F. 4th 1087 (9th Cir. 2021) His dissent is so good, I’m going to grab it, format it, and drop it in an article. It is an easy read. In it, he eviscerates the Ninth Circus.

These are just a few highlights of his frustration with the Ninth.

He is there fighting for our Constitution. He is doing it right. He is making few friends on the Ninth.

He is precisely why the Ninth played so many games to make sure that Duncan was heard en banc and not by a three-judge merits panel.

It is very embarrassing when there is a well reasoned, extremely well argued opinion issued in favor of The People, which the en banc court must then wiggle out of.

By his count, 50 post Heller Second Amendment cases were heard by the Ninth Circuit at this point, and in every one, the Ninth found for the state.

Thursday was a driving day. I took Hagar to drop off her stuff for a weekend event. Since it was in the right direction, I stopped at my metal supply shop to pick up some metal.

To understand an interaction with these folks, you have to first understand noob.

13+ years ago, I found them because they were close to where I had a client. It was no issue to stop in and buy from them.

I opened the door and was in their office. Not in an anti-room, but in their office. Bill turns to me and asks, “Can I help you?

“I’d like some 1 inch steel.”

“What type of steel?”

I’m a smart guy. At least that’s what my mom told me. I had no idea, “What type of steel?” Steel is steel. Aluminum is aluminum.

Bill wasn’t interested in teaching a noob. He took enough time to make sure I got what I needed, and I was ready when I came back.

I now know to ask for 6061 when I want aluminum. If I want cheap steel, nasty and ugly, but mostly flat. I ask for that garbage steel, 1018. If I want cheaper still and less flat, A36 steel.

If I want a better steel, I’m likely to ask for 4140 or some other word or number I’ve seen mentioned.

I ask for what I want by name. If I don’t care, I’ll ask them as the steel people. They have always treated me fairly.

Thursday was slightly unusual for me. I had placed the order on Monday. Told them I was picking it up on Thursday. And I specified some sizes specifically.

If you are a production shop, and your end size is 1x3x10, you will get 1.061 by 3.061 by 10.125. You do not get 1.5×3.5×15.

The time it takes to remove that extra material is money. The cost of that extra steel is money.

The cost of material is based on weight, for all intents. That 1x3x10 is 8.520 lbs and that is what you get charged for.

If the material is a little oversized, nobody cares, and you pay would it should weight at the nominal size.

If they are cutting that from a longer stick, you will often get charged a cut charge. This ranges from $5/cut to $10/cut.

On the other hand, drops are a thing. If a client has ordered four 7ft long sticks of 0.25×4 6061, that is what they are paying for. That is a single cut because it will be gang cut. But a stick of 0.25×4 is 10 foot long (Or 20, I do not remember). That means they have 4 pieces that are 4 feet long.

They aren’t going to trash it. They aren’t going to scrap it. They are going to put it on a shelf and how somebody wants to buy a piece of 1/4×4 that is less than 36 inches long.

Which means me. I’m willing to buy those drops. So I get a good deal on most drops.

So I walk into the metal supply shop. “Hello Bill!”

“Hello, AWA, it’s been a while.”

“It sure has Bill. I don’t work around here anymore.”

“You’ve changed your look.”

I stroke my beard, which is starting to look good.

“I didn’t say for the better.”

With that, I knew I was part of the accepted. This is a person I interact with maybe 3 times a year. It has been over 4 years since I purchased from Bill.

He greets me by name. And gives me a gentle insult.

That insult stopped my search for a closer supply house. I’ll stick with Bill and his people.

(Bill is not his name. If he were to read this, he would know I’m talking about him.)

It has been a filled week.

There are things you do not know you need until you have them. I’ve been cleaning parts with a spray bottle filled with WD40’s cleaner/degreaser, which sort of works. I also have used Purple Power at a 50%, 100% and had good luck with it.

But the chuck I took apart this week had oil and grease that might have been original from the factory, 50 years ago.

I ended up using a simple aquarium type pump with a dish tub on top of a 5 gallon bucket. I was able to clean that chuck in less than an hour. It looks nice.

Which leads me back to why I required that chuck cleaned and put back into production. Back in 2018, I picked up a semi-universal dividing head, BS-0 size. It is somewhere. I knew where it was for a long time, but every time I needed to use it, I didn’t actually do it.

Now I can’t find it. Instead, of replacing it, I picked up a cheap 8″ rotary table. This cost less than the 3″ dividing head I had purchased.

The differences are that the rotary table doesn’t come with dividing plates, easily fixed for cheap. And it doesn’t have a foot stock, or lathe dog, nor a chuck.

That old chuck is about to be mounted on the rotary table. I will finish making the chuck key soon, then it is on to the rotary table work. Making gears.

Which takes us to “Chinesium” goods. Rotary tables can be had for less than $90 from Amazon. That is a 4-inch version. A Yuasa 12″ tilting rotary table is only $5,815.

You get what you pay for. Mine is on the very cheap side of things.

The overall quality feels and looks good. Nothing obviously wrong with it.

But, because it is Chinesium, the first task, before first use, is to tear it all the way down, clean it, lube it and put it back together again. The reason is that there is likely to be chips and grinding grit in the tool. Not likely, there is dirt in the system.

There is a handle that is used to rotate the table. I removed that handle with the dial to reveal a machined surface that the dial rides against. There is a glob of grease there, as there should be. But when I wiped my finger across that machined surface, it came out black. This is an indication that there is grinding grit in there.

That grinding grit will destroy a tool if it is left on working surfaces. Thus, we clean it well before putting it into production.

Making progress in the shop.

For your thoughts, Hagar reported that she had watched a video by a young woman that had escaped from Gaza. She suggested that we consider why there are all these pro-terrorist protests throughout the United States, but there does not seem to be any in the countries that have had to deal with the Palestinians.

So the questions are, are there pro-Palestine protests happening in the Middle East? Are there pro-Palestine protests happening in other countries? If so, how many and how big?

Why are they mostly(all) happening in the US?

When talking about sensitive places, the state takes the position that who or what might be in that location is what makes that place “sensitive”.

This is just a dumb way of infringing on The People’s right to keep and bear arms.

We will ignore property rights at this junction, just to simplify the discussion.

My yard is not a “sensitive” place. No matter who might enter my yard, there is nothing that would make it a place where I should be kept from bearing an arm.

The same goes for the street in front of my house. Nor anyplace along that street.

But what about a school? A school is full of “vulnerable” people, children. Having vulnerable people doesn’t make the place sensitive. For example, what if the school was empty of students, and you were attending a meeting with a bunch of crazy liberal/leftists? Like school administrators and teachers?

The park is not a sensitive place, nor is the town hall nor the public parts of the police fortress.

What makes a place “sensitive”, is whether the government has taken responsibility for providing security and that security is comprehensive.

For example, a courtroom. The state has the responsibility for providing the security, in the form of armed security. They people are disarmed before entering the courtroom. The courtroom is secured at all entry points to prevent people from bypassing the security screening.

In addition, that place should only be made a sensitive place if it provides a safe location outside the security parameter for you to secure your arms.

This means that my pooling place is not a sensitive location. The state does not provide any real security.

This means that airports, outside security checkpoint are not sensitive places.

In addition, the areas beyond the security checkpoint are also not sensitive places. This is because the TSA does a shit job of screening. TSA’s security record is so poor that El Al still performs their security screenings of all passengers.

An El Al aircraft is a sensitive place.

Mark Smith has spoken many times about the relationship between sensitive places and Supreme Court cases. The commonality in the locations singled out by the Supreme Court as sensitive is that they provide comprehensive security.

This case was another challenge to 18 U.S.C. §922(k) possession of a firearm with an obliterated serial number.

Mr. Avila is a bad dude. He was charged with four counts, 2 counts of distributing fentanyl, 1 count of distributing cocaine, and 1 count of felon in possession of a firearm.

Mr. Avila, through his state provided attorney, asked the court if §922(k) was constitutional. This was construed by the court as a motion to dismiss count 4, §922(k).

This case is now dead because Mr. Avila pleaded guilty, and I’m not paying to find out exactly what he pleaded guilty to and what he got out of it.

I’m sure we all play the game of “Guess what their opinion will be based on how they describe the problem.” I do that with court orders/opinions.

That jab of “A short two years later” is nasty. It is nasty because, as a court, he knows that a right delayed is a right denied. Waiting 2 years for our rights is “A short two years.”. I’m not feeling good about this judge right now.

We again have that jab, this court is saying that because inferior courts had decided to turn the Second Amendment’s protections into a joke, the Supreme Court should have done the same.

The citations are correct. There is nothing extraordinarily bad about them. What they are, though, is second best.

When the Supreme Court says, “We hold …” they are telling you the answer. After they give the holding, the rest is dicta, explaining that holding.

The court plays word games again. Is a firearm an arm, with in the meaning of the Second Amendment? All firearms are arms. Is a firearm without a serial number an arm? Yes. The state argues constantly that “ghost” guns are arms that should and can be regulated. Is a firearm with a serial number an arm? Yes. Quod erat demonstrandum

If a firearm with a serial number is an arm, and a firearm without a serial number is an arm, then a firearm who’s serial number has been removed is still an arm.

Even though the court did not explicitly say that the plain text of the Second Amendment doesn’t cover the individuals’ conduct, they did not say what part of this Nation’s historical tradition of firearms regulation is analogous to §922(k).

This means the court profoundly erred in this decision.

A bit further, the court actually says it:

We are seeing this argument over and over again. After Bruen, I expected the fight to be in the realm of “sensitive” places. And that battle is happening. It does not appear to be a winning argument for the state. Mainly because after the Bruen court told the states that they can’t just declare a large area a “sensitive” place because cops sometimes patrol, the states then proceeded to do just that.

On the other hand, the courts and the state turning when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. Missing citations for 75DAVPP7 into a first step hurdle.

Is it an arm? Well, duh, it’s a gun. That makes it an arm. Go read Heller‘s definition of what an “arm” is. There are no asterisks in the Second Amendment. There is nothing that says, “we are only talking about these types of arms.” or “we aren’t talking about those types of arms.” It is all arms.