Take the time to read some quotes from Judge VanDyke. It is worth the time.
The panel first held that the Orders’ 48-day closure of gun shops, ammunition shops, and firing ranges burdened conduct protected by the Second Amendment, based on a historical understanding of the scope of the Second Amendment right.
In assessing the appropriate level of scrutiny, the panel held that the district court erred by determining that Jacobson v. Massachusetts, 197 U.S. 11 (1905), applied to Appellees’ Second Amendment claim. The panel held that Jacobson, which addressed a substantive due process challenge to a state statute requiring smallpox vaccinations, did not apply here because Jacobson did not concern the specific, constitutionally enumerated right at issue, and essentially applied rational basis review. The panel declined to determine whether the Orders were categorically unconstitutional and instead, because the Orders failed to satisfy any level of heightened scrutiny, based its decision on the traditional tiered scrutiny analysis.
— Judge VanDyke
Reversing the district court’s judgment, the panel vacated Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1), which makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year. On appeal, Duarte challenged his conviction on Second Amendment grounds, which the panel reviewed de novo rather than for plain error because Duarte had good cause for not raising the claim in the district court when United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), foreclosed the argument.
The panel held that under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to Duarte, a non-violent offender who has served his time in prison and reentered society; and that Vongxay, which did not apply the mode of analysis that Bruen later established and now requires courts to perform, is clearly irreconcilable with Bruen.
— Judge Carlos T. Bea, joined by Judge Lawrence VanDyke
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.
&mdash: Judge VanDyke, dissenting
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
Judge Hurwitz has penned a short concurrence respectfully characterizing as inappropriate and hyperbolic my observations regarding how my colleague’s personal views influence our court’s Second Amendment cases. I agree that it is a troubling charge to posit personal views as a driving force behind judicial decision-making, and not one I make lightly. But whatever else it may be, my claim is hardly hyperbolic. Here are the facts: We are a monstrosity of a court exercising jurisdiction over 20% of the U.S. population and almost one-fifth of the states—including states pushing the most aggressive gun-control restrictions in the nation. By my count, we have had at least 50 Second Amendment challenges since Heller—significantly more than any other circuit—all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us—from storage restrictions to waiting periods to ammunition restrictions to conceal carry bans to open carry bans to magazine capacity prohibitions—the common thread is our court’s ready willingness to bless any restriction related to guns. Respectfully, Judge Hurwitz’s claim that our judges’ personal views about the Second Amendment and guns have not affected our jurisprudence is simply not plausible. Res ipsa loquitur.
— 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.
One thought on “Judge Lawrence James Christopher VanDyke (9th Cir.)”
The bottom line is the Supreme Court is impotent. Lower courts AND almost every Federal Agency along with most states simply ignore rulings from the Supreme Court they don’t like. We plainly live in a post Constitutional lawless nation.
The bottom line is the Supreme Court is impotent. Lower courts AND almost every Federal Agency along with most states simply ignore rulings from the Supreme Court they don’t like. We plainly live in a post Constitutional lawless nation.