B.L.U.F.Short discussion of the level of honesty from the state.

I’m under the weather, so nothing too long, I hope. (I can hope, it just doesn’t happen.)

(2200 words)

Duncan v. Bonta is the case that started in 2017 challenging California’s magazine ban. Judge Benitez found magazine bans to be unconstitutional. He enjoined the state from enforcing the magazine ban. Thousands of magazines flowed into the state.

The state begged for a stay while the case was on appeal. Judge Benitez granted that stay in part. Those people who possessed forbidden magazines were protected as well as those that received magazines during the injunction, as well as the people who ordered during Freedom Week but had not yet received their magazines.

Since there was no emergency motion for a stay, the case was assigned to a three judge panel. The three judge panel agreed with Judge Benitez. The opinion of the three judge panel was written by Circuit Judge Lee.

The state asked for an en banc hearing. As expected, it was granted. The en banc panel then found in a 7 to 4 opinion that a magazine ban was constitutional and vacated the three judge panel’s opinion. Judge Vandyke wrote a fantastic dissent on the case, slamming the majority.

The plaintiffs (good guys) appealed to the Supreme Court. The request for certiorari was not granted, nor was it denied. The case was held pending the outcome of Bruen. After Bruen was decided, the Supreme Court granted certiorari, vacated the en banc panel’s opinion, and remanded the case back to the Ninth Circuit.

The en banc panel took up the case and instead of issuing an opinion, they vacated and remanded the case back to District Court Judge Benitez. Circuit Judge Vandyke wrote the dissent, again, saying that the en banc panel should have taken up the case and decided it because it was coming back to the Ninth.

The case was remanded back to Judge Benitez, who did it right. He let the state put forth all the arguments they wanted. He allowed experts to testify, he allowed the state to present arguments from different times. He made them select their strongest analogies. He did everything he could to give the state the best chance possible.

Then he ruled for The People. He found that magazine bans were unconstitutional. Since he decided the case originally on Heller and Bruen affirmed Heller this was never in doubt.

The state then appealed to the Ninth Circuit for an emergency motion for stay pending appeal.

This is a 100% normal thing to have happened. The only thing that was the least bit unusual is that it was done within hours of Benitez issuing his ruling.

At this point, the case should have been assigned to a three judge administrative panel. Indications suggest that two of the judges on-call for administrative panels were Circuit Judge Vandyke, and Circuit Judge Lee. If there were only three judges on-call, this is a panel I would bet on upholding the Second Amendment protected rights of The People.

There could be as many as six Circuit Judges on call. The point of this is that the circuit judges have a pretty good idea of who is going to hear emergency motions.

The only reason that a case would not go to an administrative panel would be if it was a comeback case. If it was a comeback case, then it would go to the original three judge panel. Sort of. Three judge appeal panels are often (sometimes) made up of two circuit judges and one district judge. Likely for on the job training.

The original three judge panel consisted of two circuit judges who are constitutionalists, and one district judge that dissented. It would not matter if they brought back the original district judge or if they drew a different district judge at random. The result was going to be for The People.

That ends the normal, accepted, by the rules ways that this new appeal could go…

Instead, the same eleven circuit judge en banc panel claimed that it was a comeback case to them. They then violated all the norms of the Ninth Circuit and claimed the case as theirs, issued an administrative stay until the 10th of October.

None of the State’s arguments for why the district court’s injunction should be stayed pending appeal have any merit. The district court’s application of Bruen is anything but “deeply flawed,” and it did not “distort” Bruen’s methodology at all. Mot at 2. Indeed, the district court was meticulously faithful to Bruen. So the likelihood that the State will achieve reversal on appeal is slim to none. Nor do the remaining equitable considerations favor a stay: There is no risk of irreparable harm to the State, and the balancing analysis favors the constitutional liberty interest that section 32310 destroys. What’s more, because there is no public interest in staying an injunction of an unconstitutional law, the public interest clearly weighs against a stay.
ECF No. 5 - Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2 (9th Cir.)

I’ve noticed that the state will often call a district opinion against them “deeply flawed”. Which is ironic, because when the plaintiffs call other district court rulings the equivalent of “deeply flawed” the state calls them out for rudeness.

(IANAL) The four prongs for a court to issue an injunction or to stay an injunction are: Likelihood of success on the merits, irreparable harm, balance of equities and hardship, and is it in the public interest.

The Ninth Circuit has recently issued an opinion saying that district courts must focus on merits first. They do not get to look at equities and public interest until they have determined the merits. The Ninth has also said that the likelihood of success on the merits weighs more heavily than the other three factors.

The Supreme Court has ruled that a violation of a core Constitutional Right is, by definition, irreparable harm. The Supreme Court has also ruled that the state has no public interest in enforcing an unconstitutional regulation/law.

Once the plaintiffs show they are likely to succeed in a facial challenge to a regulation, they get two of the remaining three by default. The last is: does the harm to the state out weigh the irreparable harm to the plaintiffs, likelihood of success on the merits, and no public interest.

The plaintiffs state it clearly, magazines are arms protected under the Second Amendment. The state has provided no analogous regulations from the founding era that match the how and why of a magazine ban.

Instead of engaging with the reasoning of those decisions, plaintiffs dismiss them out of hand—asserting that they were not only “incorrect” but were not “honest,” were not “faithful[]” to the district courts’ “duty,” and were motivated by a desire to “misinterpret[]” Supreme Court precedent “into nullification.” Opp. 6. That derisive language is as unsupported as it is unfair. District courts across the country have faithfully applied Bruen to a bevy of Second Amendment challenges to large-capacity magazine restrictions. Plaintiffs are entitled to disagree with the conclusions reached by those courts, and to press their own contrary merits arguments in this appeal. But the substantial body of decisions going against plaintiffs’ position at the very least establishes a “serious legal question” on the merits of the appeal.
ECF No. 9 - Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 4 (9th Cir.)

Emphasis added. Internal citation omitted.

This is what I was saying above. The state calls an opinion that they don’t like “deeply flawed” and will not tolerate somebody calling them on their rudeness. The plaintiffs, using less offensive language, are “unfair”.

If I were to take a poll of you, the readers, about just about any subject, I can just about guess the outcome. You are a self-selected sample set. If some schools have a rule that says that all students must use transparent backpacks whereas most schools do not, all challenges to that rule will be in schools that have that rule.

If the people who adjudicate those challenges are from the schools that have that particular rule, the odds of that self-selected sample will come to the same conclusion is very high.

The courts run this utopian mindset, which says that all court decisions are unbiased by anything except the law. They do this in the face of facts that show that some courts are biased. They do this when plaintiffs go judge shopping, knowing that any case that comes before a certain judge will get the same ruling.

The state arguing that many of the courts that have heard magazine bans have ruled them constitutional is exactly this game. The state is claiming that the courts in question are unbiased. The Ninth Circuit, one of the most biased courts in the land, will accept this fable to justify their own bias.

While this is not the place for an exhaustive discussion of those merits issues, plaintiffs’ merits arguments are not persuasive. Whether examined under the first or second part of the Bruen framework, California’s restrictions on large-capacity magazine restrictions do not violate the Second Amendment: plaintiffs’ desired course of conduct is not protected by the Second Amendment; and, in any event, restrictions on large-capacity magazines are consistent with the Nation’s historical tradition of regulation. See Mot. 13-17.

Plaintiffs assert that large-capacity magazines are “clearly” protected arms. Opp. 4 & n.1. But they acknowledge that large-capacity magazines are a “type of arms accessory” and are not themselves “bearable arms.” Id. at 5, 6. And while plaintiffs suggest that “[m]agazines” are “integral to semiautomatic firearm technology,” id. at 7, they cite nothing to show that large-capacity magazines in particular are necessary for the operation of any semiautomatic firearm. Nor could they. See Echeverria Decl., Ex. 7 (Busse Decl.) ¶ 7 (“[A]ll firearms that can accept a large-capacity magazine can also accept a magazine that holds 10 or fewer rounds and function precisely as intended.”). Plaintiffs also argue that “actual usage of a type of arm in self-defense” is “plainly irrelevant” to Bruen’s inquiry into whether the arm is in common use for self-defense, because “[a]ctual ownership is the standard.” Opp. 5. But “the popularity of a firearm or firearm accessory” cannot be “dispositive” of the common use analysis, Kotek, 2023 WL 4541027, at *29; see also Lamont, 2023 WL 4975979, at *13-15, just as the objective intent of people who own large-capacity magazines cannot control the constitutional status of those devices. See Kotek, 2023 WL 4541027, at *30-32; Lamont, 2023 WL 4974979, at *14 (concluding that “the Supreme Court d[id] not indicate in the slightest that it intended” the common use inquiry “to be driven by nebulous subjective intentions”). But see Order 25.
id. at 5–6

Here, the state is arguing that wanting to have the best option for self-defense, normal, standard magazines, is not protected under the Second Amendment, because magazines are not arms. Even if they were arms, it is ok to ban the big ones because the little ones will allow the firearm to operate.

If it is acceptable for the state to limit the size of a magazine to 10 rounds, what is to stop them from deciding the best magazine size for you is 5? Or 2 or even 1?

As to Bruen’s historical analysis, plaintiffs seem to acknowledge (Opp. 6) the Supreme Court’s observation that “cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2132 (2022). But they assert that “[t]his case does not involve any” such concerns or technical changes. Opp. 6. That is remarkable. Even the district court below agreed that “[d]etachable magazines were invented in the late 19th Century,” Order 37; that they “solved a problem with historic firearms: running out of ammunition and having to slowly reload a gun,” id. at 3; and that “it can be argued that removable magazines represent a dramatic change in technology and the State is attempting to address a modern societal concern,” id. at 58; see, e.g., Kotek, 2023 WL 4541027, at *13-14, *35-39; Lamont, 2023 WL 4975979, at *32; Del. State Sportsmen’s Ass’n, Inc., 2023 WL 2655150, at *10-11; Mot. 15-16 (discussing unprecedented societal concerns arising from use of large-capacity magazines in mass shootings).
id. at 6

So this is the passage I was going to write about. The state is claiming that detachable magazines are an unprecedented societal concern or a dramatic technological change. We can assume that they are going for “dramatic technological change”.

While the advent of the metallic cartridge was a dramatic technological change, it happened in the 1800s, before the civil war, before the 14th Amendment was ratified. This means that even if we accept the states’ argument that we need to accept regulations from the antebellum era, this “dramatic technological change” took place before then.

A detachable magazine existed for the Gatling gun by 1871.

If they want to use 1868 for the analogous regulations, they have to accept that magazines are from the same era and that our forefathers didn’t ban them.

When the facts are in your favor, pound the facts. When the law is in your favor, pound the law. When neither is in your favor, pound the table.

The table in front of the state appears to be quickly shattering into splinters.

Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)District of Columbia v. Heller, 467 U.S. 837 (2008)Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)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)
ECF No. 5 - Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)
ECF No. 9 - Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)
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By awa

One thought on “Virginia Duncan v. Rob Bonta, 23-55805, (9th Cir. Oct 03, 2023) ECF No. 9”
  1. I rather like that line at the end its very apt in this case and well written and I think useful going forward.

    Using it we can see and seperate in to catagories attempts by right infringers on any given topic and from either side and respond accordingly.

    Look at the New York Safe Act and their 7-8 round, can’t remember which, magazine limit or the attempts by gun grabbers to go after reloading components currently saying they are not arms and so unprotected. Forgetting the historical context of Lexington and Concord as well as current case law.

Only one rule: Don't be a dick.

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