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?
(1800 words)

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.

According to the state, eleven different district courts have made rulings on magazine bans. Of those eleven, 9 have found for the state, two have found for The People. The one other case was then stayed pending a circuit court ruling.

When there are no Circuit opinions, those district court rulings are what are used instead.

Given that we are in a post Bruen world, text, history, and tradition rule. The state, in all its guises, is attempting to get “magazines” defined as something besides arms. If the court decides that magazine control is implicated under the plain text of the Second Amendment, the burden shifts to the state to find historical analogous regulations.

So what is this game? The game is that a case that has been awaiting a ruling since December 2022 finally dropped.

Now, for a TRO, Preliminary Injunction, or a stay, the rules are just about the same (IANAL). The party pleading must demonstrate that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence, that the balance of equities is in their favor, and that it is in the public interest.

Likely to succeed on the merits is the actual case. It could be that no TRO, no Preliminary Injunction, and no stays are issued because the courts did not think the party pleading was likely to succeed on the merits. Then after all the evidence is presented, all the arguments made, the court decides on the merits in favor of the party pleading.

Here, the state must argue that they are likely to succeed on the merits on appeal. Which means they are saying that the district court was wrong.

The state knows this is a weak argument. Judge Benitez put together a wonderful ruling. 70 some pages that tear apart the state’s argument. In the state’s pleadings on appeal, they claim that he got it wrong because he ignored all the laws he was supposed to ignore, and that he found that magazines were arms under the plain text of the Second Amendment.

Interestingly, the state then hedges its bet. Rather than go with straight up, “We will win on the merits”, they instead add:

To obtain a stay, the Attorney General “need not demonstrate that it is more likely than not that [the State] will win on the merits” or that “ultimate success is probable.” Rather, “a substantial case on the merits” or “serious legal questions” will suffice “so long as the other factors support the stay.”
id. at 9 Internal citations omitted.

Notice they are adding other reasons for a stay, other than likely to succeed on the merits. The state claims that “serious legal questions” should lower the bar from “likely to succeed” to “a substantial case on the merits”. A substantial case has no baring on how likely the state is to succeed. Everybody could agree that there is only a 1% chance of the state succeeding on the merits, but because there are serious legal questions, the circuit court should stay the injunction.

The state’s pleadings against the district court’s ruling are mostly, “They got it wrong! Whimper, whimper, pout” Unless the 3 judge administrative panel finds their claims to be persuasive, they won’t grant the stay. On the other hand, if that 3 judge panel decides that there are serious legal questions, they can grant the stay.

Currently, no appeals court has made any rulings on state regulations post Bruen. There have been numerous district court rulings, in both directions. There are no binding precedents yet from the Circuit courts.

Since there are no binding precedents, the parties then turn to district level cases. Having conflicting decisions at the district level increases the “serious legal questions” possibilities. If there are conflicting decisions within the same district, that increases those possibilities even higher.

On September 25th, 2023, the Easter District of Washington State issued their ruling on Brumback v. Ferguson. Judge Dimke found that magazines are not arms because they can’t be used by themselves as arms. This logic could be extended to barrels, triggers, bolts, or any other firearm part.

(The previous is from Washington Gun Law YouTube channel. I’ve not read the opinion yet. The YouTuber showed quotes from the ruling.)

And now I have. You know that horrible retching that happens when you sneak a drink straight from the milk jug, and only after the first swallow do you realize it has gone off and is chunky? Yeah, that’s what Judge Dimke’s opinion is like.

But given the lack of post-Bruen authority, and Bruen’s instruction that a court must interpret the text of the Second Amendment through the lens of history, the Court must insist upon a historical record demonstrating that the Second Amendment right to the manufacture, import, distribute, sell, or offer for sale of arms. 142 S. Ct. at 2130. The current record lacks such evidence; therefore, the Court cannot reach a conclusion on the subject. As the burden belongs to the Plaintiffs, the Court must find that the insufficiency of evidence and authority weighs against a preliminary injunction. At a future trial on the merits, a sufficient demonstration as to the intent of the Framers of the Second Amendment, rooted in history, may warrant a contrary finding. Bruen, 142 S. Ct. at 2130 n.6 (a court is “entitled to decide a case based on the historical record compiled by the parties.”).
ECF No. 59 Brumback v. Ferguson, No. 1:22-cv-03093, slip op. at 13 (E.D. Wash.)

This is Dimke saying that she doesn’t know if the Second Amendment covers the right to manufacture, import, distribute, buy, or sell firearms. Yes, she is that intentionally obtuse.

She then babbles for another 6 pages about how difficult it is to decide if magazines are “arms” under the plain text of the Second Amendment. She then gives us this doozy:

These difficult and unsettled questions of law aside, Plaintiffs fail to demonstrate their likelihood of success on the merits for a far simpler reason. A magazine is a part of a firearm, rather than a “weapon[] of offence, or armour of defence,” or a “thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” See Heller, 554 U.S. at 581. On its own, it cannot be used to attack or defend; a magazine with increased capacity simply reduces the frequency of reloads required when discharging a firearm.
id. at 20

California is using this rogue court’s opinion to support a district level split. They waited until this case dropped before filing their request for an emergency stay. This likely means they had pre-warning that the case was about to drop, or they requested that the ruling drop.

Since Judge Dimke only spent 30 some pages on her opinion vs. Judge Benitez’s 70 some, it is pretty clear who did their homework correctly. (Not really, I’m still gagging over the Dimke ruling).

And there you have it. The State of California delayed their emergency request for a stay so that the district court in the State of Washington could drop their opinion first.


ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)
ECF No. 59 Brumback v. Ferguson, No. 1:22-cv-03093 (E.D. Wash.)

Spread the love

By awa

One thought on “The Games People Play, Duncan v. Bonta (9th Cir., 23-55805)”
  1. In reading the seventy pages from Judge Roger Benitez, ruling, when he gets to the part of Interest Balancing and its byproduct “Suitability” he had a great footnote, number 24. (Edited for clarity, and sorry for the lengthy quote but the judge writes long footnotes, this one’s excellent).
    California currently allows more than 2.2 rounds in a magazine and does not prohibit carrying multiple magazines but do not be fooled under the legislative majority’s version 2.2 of the second amendment. There is no reason the state could not limit its citizens to carrying a generous three rounds total for self-defense. As this court explained in its prior decision, artificial limits will eventually lead to disarmament.
    It is an insidious plan to disarm the populace and it depends on, for its success, a subjective standard of ‘necessary lethality’. It does not take the imagination of Jules Verne to predict that all magazines over 10 rounds are somehow eliminated from California. The next mass shooting will be accomplished with guns holding only 10 rounds……to reduce gun violence.
    The state will close the newly christened 10 round loophole and use it as a justification to outlaw magazines holding more than seven rounds. The legislation will determine that no more than seven rounds are necessary. Then the next mass shooting will be accomplished with guns holding seven rounds………again, to reduce the new gun violence.
    The state will close the seven round loophole and outlaw magazines holding more than five rounds, determining that no more than five rounds are suitable. And so, it goes until the only lawful firearm law-abiding responsible citizens will be permitted to possess is a single shot handgun or perhaps one gun but no ammunition. Or ammunition issued only to persons deemed by the state to be trustworthy.

Comments are closed.