The Ninth Circuit has a history of ruling against The People in Second Amendment cases. I heard that they are 0 for 50. Not verified.

This is the story of just one 2A case. It is very long. About 4 hours of writing and research. Even if you don’t want to read my description of the history of this case, please take the time to read the dissents. (link updated to work.)

(3900 words)

In May 2017, a hero steps forth to do battle with the great leviathan which is the California anti-gun state.

Virginia Duncan files a lawsuit challenging California’s magazine ban. Since 2008, when the Heller Court stated that the Second Amendment protected an individual, the rogue courts had been rubber-stamping every gun control regulation the states could dream up.

She was just another Don Quixote, tilting at windmills, hoping to accomplish something. There was little or no chance of winning. Even the most inferior courts, the district courts, would be against her.

A judge was pulled at random and assigned to her case. Judge Roger T. Benitez was his name. Luckily for Virginia, he was a rogue judge.

A rogue judge or court is a court that mouths the words of their superiors, yet finds ways to disobey even the clearest of instructions.

Judge Benitez was just such a man. In the plaintiff’s motion to dismiss, they state it bluntly, California’s magazine ban is unconstitutional.

First, a total ban on the possession of magazines “in common use” by law-abiding citizens for self-defense plainly violates the Second Amendment. District of Columbia v. Heller, 554 U.S. 570, 627 (2008). The state can point to no justification—let alone one sufficient to withstand heightened scrutiny—for banning magazines lawfully and safely owned by tens of millions of Americans to defend themselves.
ECF No. 6 - Duncan v. Becerra, No. 3:17-cv-01017, slip op. at 9 (S.D. Cal.)

It is important to note that they are using the most powerful case law available to them, Heller. In particular, they make the claim that “in common use” means that it can’t be banned. If the item is an arm that is in common use today, then it is protected under the Second Amendment.

The state responds with, “Bad guys use scary guns with scary magazines, go punish those people over there.” The state uses 552 U.S. 442, 450 (2008) to establish that for a facial claim to succeed, the regulation must fail under all applications.

The problem, in 2017, was that the state could depend on the courts to find that under intermediate, or even strict, scrutiny that the state had established a significant public need for the law to out weigh the individual right.

The reply to the state is a master class of staying on point. The lawyers hammer “in common use for lawful purposes”. “10s of millions of so called LCMs in common use”. They hammer that the state refuses to even address the infringement, instead the state hammers how bad people do illegal things.

In June, Judge Benitez fires the first round. He grants the Preliminary Injunction, stopping the new ban on magazines from going into effect.

He starts with a small discussion of just how complex California’s gun laws are.

California’s gun laws are complicated. See Peruta v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016) (en banc), cert. denied, 2017 WL 176580 (June 26, 2017) (“California has a multifaceted statutory scheme regulating firearms.”). Proposition 63 adds one more layer of complexity. Perhaps too much complexity. See id. at 953 (Callahan, J., dissenting) (“The counties and California have chipped away at the Plaintiffs’ right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining constitutionality.”). In California, the State has enacted, over the span of two decades, an incrementally more burdensome web of restrictions on the rights of law-abiding responsible gun owners to buy, borrow, acquire, modify, use, or possess ammunition magazines able to hold more than 10 rounds. The language used, the internally referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State’s magazine laws difficult to understand for all but the most learned experts. See e.g., Cal. Pen. Code § 32310(a) (criminalizing manufacturing, importing, keeping for sale, offering for sale, giving, lending, buying or receiving a large capacity magazine while excepting “as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2”); § 32310(b) (defining “manufacturing” as fabricating or assembling a magazine from a combination of parts); § 32415(b) (§ 32310 prohibition on lending does not apply to the loan when it “occurs at a place or location where the possession of the large capacity magazine remains in the accessible vicinity of the person to whom the large capacity magazine is loaned”); § 32406(b) (excepting museums and institutional collections open to the public if securely housed and protected from unauthorized handling); § 32406(f) (excepting a “person lawfully in possession of a firearm that the person obtained prior to January 1, 2000, if no magazine that holds 10 or fewer rounds of ammunition is compatible with that firearm and the person possesses the large-capacity magazine solely for use with the firearm”); § 16470 (defining “large capacity magazine” to include an ammunition feeding device with the capacity to accept more than 10 rounds but not including a feeding device “that has been permanently altered so that it cannot accommodate more than 10 rounds,” and a .22 caliber tube feeding device and a tubular magazine that is contained in a lever-action firearm); § 32311 (criminalizing manufacturing, importing, keeping for sale, offering for sale, giving, lending, buying, or receiving “any large capacity magazine conversion kit”); § 32390 (declaring any large capacity magazine to be a nuisance); § 18010 (destroying nuisance large capacity magazines). Too much complexity fails to give fair notice and violates due process. “[A] penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties … consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Const. Co., 269 U.S. 385, 391 (1926); see also United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally).
ECF No. 28 - Duncan v. Becerra, No. 3:17-cv-01017, slip op. at 3–5 (S.D. Cal.)

I’ve spent hours trying to track citations in some cases. Most of the time it is only one or two levels deep. The California gun law complexity is many levels deep. “We have to pass the bill to find out what is in it.” has become, in California, “We have to arrest you before we know what the law is”.

Judge Benitez goes on to explain that the questions with regard to the preliminary injunction are 1) does a citizen have the right to defend their home from criminals using whatever common magazine size he judges best; 2) Does that citizen have the right to keep and bear a common magazine that is useful for service in a militia?”

The simple answer he gave was “yes”. With that, he granted a statewide injunction.

Of course, the state can’t take an “L”, so they appealed to the Ninth Circuit. Once that happened and the Ninth took up the case, Judge Benitez issued a stay pending appeal.

Often a case is put on hold while the preliminary injunction decision is decided. Judge Benitez said “no”. As he said, while the state claimed that the case would be expedited, there was no telling when the appeal would be decided. If the merits showed that there was a constitutional violation, that would be irreparable injury for everyday it went on.

In March 2019, Judge Benitez issued his order on motion for summary judgement. He found California’s magazine ban unconstitutional and enjoined it. This was the beginning of Freedom Week.

It was spectacular to see how the gun owners and magazine resellers responded. As I visited web pages during that week, I saw notice after notice telling me that my order would be delayed until all orders into California were answered. I didn’t read a single complaint.

We don’t know how many magazines made their way into California during freedom week. We know that it is easily the 100s of thousands.

Which, under Heller makes them in common use for lawful purposes.

The Supreme Court’s Simple Heller Test

In Heller, the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual “in common use” “for lawful purposes like self-defense.” District of Columbia v. Heller, 554 U.S. 570, 624 (2008); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1271 (2011) (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”). It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are “yes,” the test is over. The hardware is protected.
ECF No. 87 - Duncan v. Becerra, No. 3:17-cv-01017, slip op. at 15 (S.D. Cal.)

Here you can see that the Court went back to the Supreme Court for instruction. He ignored the Ninth Circuit’s means-end tests, he went rogue.

The state panicked. They appealed to the Ninth Circuit, again. If they had taken the “L” in this case, it would have been the first domino of gun infringing regulations falling.

Judge Benitez, realizing that the case was going to be heard by the Ninth, issued a “Stay in Part” pending appeal. The “in part” means that he didn’t stop all of his injunction, only parts of it.

Before you get upset with Judge Benitez doing this, know that if he had not, the Ninth would have. By issuing the stay himself, he was able to protect all the people of California that had purchased magazines during freedom week. He even extended that protection to those that had not yet taken delivery of their magazines.

In April 2020, the case was argued before a three judge panel, as is standard. The judges were Callahan, Lee and Lynn.

On August 14th, they issued their opinion. Judge Lynn asked just how substantial the rape was, then decided that intermediate scrutiny applied. Under intermediate scrutiny, her opinion was that the state was in the right.

Judges Callahan and Lee applied the Heller rule and came to the right decision, even if they used means-end reasoning first.

Judge Lynn’s dissent is an echo of every Ninth Circuit Second Amendment case. She first decides that if The People not been substantially raped hard enough, that intermedia scrutiny applies. She then accepts the state’s hypothetical “evidence” that magazine bans reduce mass shootings and other criminal activities.

One of the more interesting points the plaintiffs make is that during the federal weapons ban, the federal government asked for a study of the effects of the ban. When that ban was published, it stated that there was no discernible benefit from the ban. The author of that study is a gun banner.

When we started using his study to show that there was no benefit to the ban, he published a new “study” saying that if the ban had continued, it would have shown a benefit.

As far as I know, no gun ban study has actually survived rigorous examination. Many fail on sampling methodology. Everything from the Gun Violence Archive fails for that reason. They collect their “data” from news sources. If the media doesn’t report it, it didn’t happen.

Other failures are in extrapolation or under sampling. Still, other studies fail on being pure wishful thinking. I.e. If we ban guns, then obviously there can be no “gun violence”. This fantasy totally ignores that the criminals will continue to be criminals.

By the end of February 2021, the Ninth had agreed to hear the case en banc. They vacated the ruling affirming Judge Benitez’s injunction pending the en banc court hearing the case.

The case was argued and submitted to Sidney R. Thomas, Susan P. Graber, Richard A. Paez, Marsha S. Berzon, Sandra S. Ikuta, Mary H. Murguia, Paul J. Watford, Andrew D. Hurwitz, Ryan D. Nelson, Patrick J. Bumatay and Lawrence Vandyke on June 22, 2021.

Judge Bumatay wrote a dissent, joined by Judges Ikuta and R. Nelson. Judge VanDyke wrote his own dissent.

Here we see the massive imbalance on the Ninth. While the luck of the draw might get a three judge panel that has a majority of constitutionalist/originalist, it is almost impossible for an en banc panel to be originalists.

At this stage, there has been nothing unusual going on. The most unusual part of the entire case was that four judges actually called out the majority for being result driving hacks.

Judge Berzon offered a brief theoretical and historical defense of the two-step, tiered scrutiny approach used by eleven of the federal courts of appeals in Second Amendment cases. Judge Berzon hoped to demonstrate that the notion that judges can avoid so-called subjectivity more successfully under the “text, history, and tradition” approach than under the two-step, tiered scrutiny analysis was a simplistic illusion. Rather than representing a “much less subjective” framework for decision making in Second Amendment cases involving discrete arms regulations, the “text, history, and tradition” test obscures the myriad indeterminate choices that will arise in most such cases. The tiered scrutiny approach, in contrast, serves to guide and constrain a court’s analysis in Second Amendment disputes regarding discrete arms regulations, as it has done for numerous other constitutional provisions.
Virginia Duncan V. Rob Bonta, No. 19-55376 (9th Cir. Nov. 30, 2021) Summary

What irony. Seven months later, the Supreme Court in Bruen, said the opposite. A month after Bruen the Supreme Court GVR’d this case, telling the Ninth “do it right”

So what did the Ninth do? They vacated and remanded the case back to the district court. Bumatay and VanDyke stood up for the Constitution again in this. The brunt of their dissent was that the case was going to end up back at the Ninth regardless of what the District Court decided.

That happened on September 23, 2022. On September 25, 2022, Judge Benitez said, “I got it right the first time around.” As predicted, surprising no one, the case was immediately appealed to the Ninth, again. This is the FIFTH trip to the Ninth for this case.

At this point, a three – judge administrative panel should have heard the motion for appeal. That panel should have placed the administrative hold and then scheduled an expedited hearing by a three judge panel on the merits. ONLY after that panel had issued their opinion should an en banc panel hear the case.

Well, the same en banc panel that got slapped down by the Supreme Court, then avoided doing their duty by vacating and remanding the case, stepped in again.

There is a thing called a “comeback”. (IANAL) A comeback is when a case comes back from the Supreme Court, or when a case has been up to the Circuit Court for some other reason. For example, a preliminary injunction appeal, and then a comeback over the final opinion by the district court.

The Dissents in granting en banc comeback

Judge Bumatay

For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). In Bruen, the Supreme Court made clear that the Second Amendment must no longer be deemed a disfavored right.

With this clear direction from the Supreme Court, you might think that our court would return to regular order and handle this Second Amendment case like all others before our court. And in the normal course, emergency motions would be handled by a three-judge panel. But not here. Because this is a Second Amendment case, we now take the unprecedented step of taking an emergency motion as an en banc panel in the first instance. While our rules may leave room for such an unusual step, discretion and wisdom counsel against it. Indeed, to my knowledge, no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter. And the majority cites no precedent otherwise. So I’m left wondering why we rush to do something so unorthodox.

I thus respectfully dissent from the grant of the administrative stay. Such a decision should be left to the sound judgment of a three-judge panel.
ECF No. 153 -Duncan v. Becerra, No. 3:17-cv-01017 (S.D. Cal.)

Judge VanDyke

I share Judge Bumatay’s concerns about the irregularities created by this en banc panel’s all-too-predictable haste to again rule against the Second Amendment. Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why.

There is a phenomenon that long has been recognized in abortion cases—sometimes called “abortion distortion”—that describes courts’ willingness to jettison procedural norms or other normal rules of decision making when a case concerns abortion. As the Supreme Court recently observed in Dobbs, abortion cases have led to a distortion in legal doctrines ranging from severability to First Amendment doctrine. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022). And Justice Thomas has likewise decried the “troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Thomas, J., dissenting) (citation omitted); see also June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2153 (2020) (Alito, J., dissenting) (“[T]he abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.”); Madsen v. Women’s Health Ctr., 512 U.S. 753, 785 (1994) (Scalia, J. concurring in part and dissenting in part) (“The entire injunction in this case departs so far from the established course of our jurisprudence that in any other context it would have been regarded as a candidate for summary reversal. But the context here is abortion.”). “Abortion exceptionalism” has too often “mean[t] the rules are different for abortion cases.” Caroline Mala Corbin, Abortion Distortions, 71 WASH. & L EE L. REV. 1175, 1210 (2014). After Dobbs, “we can no longer engage in those abortion distortions.” SisterSong Women of Color Reprod. Just. Collective v. Governor of Georgia, 40 F.4th 1320, 1328 (11th Cir. 2022). Or at least we shouldn’t.

Cases involving the Second Amendment in our circuit have unfortunately suffered from a like phenomenon. And just as we should no longer distort our rules in abortion cases, we should no longer apply “different rules to different constitutional rights.” Whole Woman’s Health, 136 S. Ct. at 2321 (Thomas, J., dissenting). We should not give Second Amendment cases “special” treatment.

But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper—indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.

After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone—not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—including a death penalty case. Priorities.

A lot about this is deeply troubling. First and foremost, we have rules for a reason. We operate under them every day. They should apply equally and consistently, unless and until we change those rules in the normal course. There is no exception for “cases that some of the judges on our court really, really care about.” That would be capricious and erode external and internal confidence in our court. If we lack the temerity to codify a “Second Amendment exception” in our en banc rules, we should have refrained from employing it behind the double veil of “internal court matters” in which only some members of the court participated.

Second, because we have clear, settled, court-wide rules, a discrete group of panel and off-panel judges interested in en banc rehearing shouldn’t have been permitted to circumvent those rules on their own. We have a process for suspending the rules, upon a vote of the entire court. See 9th Cir. General Order 12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off the books by a handful of judges. Which makes it even worse. This off-books approach allowed the would-be en banc advocates to pressure the panels to be “collegial,” and simultaneously concealed these conversations from the rest of the court. It also delimited the scope of the question to whether we would “bend the rules” and allow some exceptions in three specific cases, which prevented the entire court from considering the weightier question of whether, as an institution, we should be suspending our settled rules for “particularly important cases.” Such agreement—however procured—does not somehow confer legitimacy.

In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?

The story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion. As uncomfortable as it is to keep pointing that out, it is important the public keeps being reminded of that fact.

ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)District of Columbia v. Heller, 467 U.S. 837 (2008)Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)Virginia Duncan V. Rob Bonta, No. 19-55376Virginia Duncan V. Xavier Becerra, No. 19-55376 (9th Cir. Aug. 14, 2020)Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)


District of Columbia v. Heller, 467 U.S. 837 (2008)
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
Virginia Duncan V. Xavier Becerra, No. 19-55376 (9th Cir. Aug. 14, 2020)
Virginia Duncan V. Rob Bonta, No. 19-55376 (9th Cir. Nov. 30, 2021)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
ECF No. 28 - Duncan v. Becerra, No. 3:17-cv-01017 (S.D. Cal.)
ECF No. 153 -Duncan v. Becerra, No. 3:17-cv-01017 (S.D. Cal.)
ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)
ECF No. 6 - Duncan v. Becerra, No. 3:17-cv-01017 (S.D. Cal.)
ECF No. 87 - Duncan v. Becerra, No. 3:17-cv-01017 (S.D. Cal.)

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By awa

2 thoughts on “Duncan v. Becerra(Bonta) 17-cv-01017 a history”
  1. As always Judge Benitez opinions are well written and constructed. This has been a very interesting game of legal hot potato and it seems that the parties are getting increasingly frustrated by the abdication of duty.

    The quoted Abortion Distortions is not a concept I’d heard before but was a great comparison and I can see how it has been used in many other disfavored rights or legal but socially frowned upon behaviors and speech.

    Thank you for the in depth saturday morning read this one was fun to chew through

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