As predicted, the opinion of Judge Benitez was appealed to the Ninth Circuit court. There it went before a three judge administrative panel, just like Duncan v. Bonta should have.
Two members of the panel decided to grant the stay pending appeal as an administrative stay. The third judge, Circuit Judge Callahan, did not want to issue the stay pending appeal.
The good news out of this is that the administrative panel has scheduled this for a hearing in December 2023. They have already told all the parties that there will be no extensions of time approved. Briefs are due from the state on November 9th, answering brief on November 22nd, final response brief on November 29th.
For an appellate court, this is freaking fast.
We sua sponte expedite this appeal. The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1).
The Clerk will place this appeal on the calendar for December 2023. See 9th Cir. Gen. Ord. 3.3(g).
—Motion for Stay, Miller v. Bonta, No. 23-2979 (9th Cir.)
Circuit Judge Callahan dissented in part:
The short of this is that this panel kicked responsibility down the road. They dumped the reasoning on the en banc panel, which said that the state would win on the merits because many district courts agreed with the state’s position.
The state, in Duncan v. Bonta claims that The People being able to purchase and possess semi-automatic firearms the state deems “scary” will cause the state irreparable injury. That’s not how this is supposed to work.
Regardless, if this panel hears the case on the merits, we should have an opinion in early 2024. At which time the state will appeal for an en banc panel. If the plaintiffs (good guys) lose, they should appeal directly to the Supreme Court.
Final resolution of Duncan and Miller is likely 9 to 12 months out.