B.L.U.F.
The babblings of a not lawyer about just how good a weekend order from the Ninth Circuit was for The People.
(1500 words)

There is a name that should be familiar to us, but which is not, Federal Judge Jack Weinstein. He sat on the Eastern District of New York district court from 1967 until 2020.

Why is he important? He was the federal judge that oversaw a number of mass tort cases. The one of interest to us, in the Second Amendment community, is the cases involving Diethylstilbestrol, or DES.

DES was prescribed to pregnant woman to reduce the risk of complications from 1940 through the early 1970s.

It turned out that it caused significant medical complications.

Of course, being America, once it was determined that there was an injury and that somebody might be at fault, lawsuits were filed.

But here is the thing, every pharmaceutical company made DES. Each of the pills was the same. It was almost impossible to tell the manufacture of a DES pill.

More than that, most people just don’t know. When I look at my medication bottles, there is no indication of who manufactured that particular lot of pills. I can go to my pharmacist and find out. On the other hand, I would have a difficult time finding out who manufactured the pills I took when I lived in Maryland. I’m not even sure what pharmacy I used, at that time.

This is where Judge Weinstein comes in. His name was pulled as the judge to hear the first suit filed in the eastern district of New York. From the start, it looked like he was sympathetic to the plaintiffs, the people suing. More suits were opened in the Eastern District.

Instead of a judge being drawn at random, the plaintiffs would request that their case be handled by Judge Weinstein. For judicial expectancy, these requests were granted. This is normally a good thing. This is what happened in California when Judge Benitez was the judge to hear so many Second Amendment challenges.

The defendants stood up in court and said, “Hey, it wasn’t me, and they can’t prove it was me. Dismiss me from the suit.”.

This is because no plaintiff could point to any particular defendant and prove that the defendant in question was the company that manufactured the pills that the defendant took. Since there was no way of figuring out which defendant was responsible for which plaintiff, it looked like the cases would be dismissed.

Judge Weinstein reviewed this and came up with a plan. His plan was a type of joint responsibility. He reasoned that for any particular year, each defendant held a particular market share. Company A held 50%, company B held 25%, company C held 15%, and D, E, and F held the remaining 10%. His ruling was that each company was responsible for a portion of the fine based on their market share.

Thus, for every $100 award, company A paid $50, company B paid $25 and so on.

But how did this intersect with the Second Amendment?

It turns out that Judge Weinstein was a rabid anti-gun person. There wasn’t a thing about guns he approved of, unless it was protecting his sorry arse.

The anti-gunners were not winning in the courts in ways to completely ban guns, but they reasoned that they could “get rid of guns” if there were no more sellers or manufacturers of guns. To this end, they started suing gun manufacturers and sellers.

And they filed in the Eastern District of New York. And they requested that the cases be assigned to Judge Weinstein because these gun suits were just like the lawsuits filed in the DES cases. Judge Weinstein gleefully accepted these cases.

Even if the defendants (good guys), won the suits, the costs of litigation were so high it drove smaller companies out of business.

This ended with Congress passing several bills to stop it, the current version is the PLCAA.

Lawfare

According to one source I heard, the cost of taking a Second Amendment challenge to the Supreme Court will cost well over $2,000,000. That’s a lot of money. More than most people have.

The state has no problem extending cases for years and years. The longer it takes, the more it costs the plaintiffs (good guys). Most of these Lawyers are on salary with the state, it doesn’t cost them anything extra to file more paper work.

Which is precisely how the game is being played.

Looking at —Antonyuk v. Hochul, No. 22-2972 (2d Cir.) as an example. From the moment New York state passed the CCIA every step has been expensive.

The first attempt was dismissed for lack of standing. Then a TRO was issued, that went to the Second Circuit, which stayed it. Then a preliminary injunction was issued (IIRC) and that was appealed to the Second, which stayed it. Then the final order was issued. That was appealed to the Second Circuit court, which heard the case. Sat on it for months. Then overturned the district court.

Note, I’m running the case from memory, it is likely that I have parts of the sequence wrong.

And we still don’t have a final ruling. It is still in litigation, not yet ready for the Supreme Court to hear.

And every time the case is extended, the rights of The People of New York are infringed for that much longer.

A Reversal

We expected the same set of actions in the May v. Bonta. The district court finds for The People. The state appeals. The Ninth Circuit stays the district court pending appeal. The Ninth takes its sweat time getting around to hearing oral arguments. It then takes even longer to issue an opinion.

Once the merits panel issues its opinion, the Ninth would be asked to sit en banc to hear the case. Figure 18 or more months before the case would be ready for the Supreme Court, and during all that time, The People of California are without their core civil rights.

The May case has flipped this on its head. The law is enjoined. It will stay enjoined until the Ninth resolves the question.

This means there is no benefit to the state dragging its heels. They want this case run as fast as possible, or do they?

Oral arguments will be heard in April. If the merits panel issues their opinion quickly, figure 3 to 6 months, and it is in favor of the plaintiffs, the state will want to request an en banc hearing.

The injunction stays in place until the en banc panel issues its opinion. That’s another 6+ months. And The People of California will be able to carry.

It is important to note that this is an appeal for a stay of a preliminary injunction. This means that the district court has not yet issued a final ruling. The case, at the district level, can continue forward to a judgement on the merits.

It is my guess that the District Judge will not release its final opinion until the Ninth Circuit completes its actions. This allows the judge to incorporate anything the Ninth says into their final order.

Once the final order is issued, the case will be appealed to the Ninth, again.

It is my understanding that the case will immediately go to the last panel that worked the case, or perhaps to the merits panel that will hear the case in April.

But let’s look at that merits panel. We don’t know who is on that panel, yet, but we know that it takes at least two judges to issue an order.

In the order dissolving the administrate stay, there is a foot not which says that only two judges worked to issue the order. The other judge was not available.

This strongly implies that those two judges will find for the plaintiffs (good guys) on the merits. The question will be if it is a three to zero or a two to one opinion.

Regardless, this is gigantic news, and all of it is good.

Conclusion

The state is going to go into high gear to get May resolved. During that time, The People will be in the winning position.

It is likely that this will be the first case where the Appeals court rules in favor of The People, meaning that it will be cited in many of the pending cases. It will also mean that there is a circuit split. This means that the Supreme Court is more likely to hear it on appeal.

This is the first ray of hope I’ve seen in this war in ages. This really is the biggest good news for the Second Amendment since Bruen