Once Again, the Ninth Circuit Contorts Itself to Delay Ruling in a Key Second Amendment Case

by Tommy Grant

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By LKB

Just when I thought the Ninth Circuit could not more brazenly thumb its collective nose at the Supreme Court and the Bruen decision, over the weekend a Ninth Circuit panel proved once more that there truly are no limits to that court’s enmity toward Second Amendment rights.

Recall that on October 19, Judge Roger Benitez once again invalidated California’s “assault weapon” ban in Miller v. Bonta, finding that the state had failed to carry its burden of establishing the law’s constitutionality under the Bruen test. He entered a permanent injunction blocking enforcement of the law.

However, Judge Benitez granted a 10-day administrative stay to allow the state to ask the Ninth Circuit for a stay of the judgment pending appeal. (Had he not done so, the Ninth Circuit almost certainly would have granted a short administrative stay – those are typical and par for the appellate court course.)

As I have written before, issuing a stay of a permanent injunction pending appeal is an extraordinarily heavy lift, requiring a very clear showing of a likelihood of success on the merits and irreparable injury if the stay isn’t granted. That’s especially true in cases based on findings of violation of constitutional rights, and well-nigh impossible with adverse findings of fact.

But those high judicial hurdles didn’t trouble the Ninth Circuit one bit in Duncan v. Bonta, the case challenging California’s standard capacity magazine ban, in which the Ninth Circuit essentially threw away the rule book in order to grant a stay pending appeal…without even attempting a Bruen analysis.

As Judge Lawrence VanDyke noted in his dissent in that case, that Court didn’t even try to disguise its “enduring bellicosity toward the Second Amendment.

I had hoped that the procedural differences between Duncan, which had previously been decided by the Ninth Circuit en banc (that was the procedural hook the court used to reach out and take the case away from a three-judge panel), might mean a return to regular order in Miller. That would mean the case would be evaluated on its merits by a three-judge panel and, if en banc, by a vote of the entire roster of active judges (which are now split almost evenly between Democrat and GOP appointees).

No dice.

In a terse order issued on Saturday, a 2-1 panel found that because there were “similarities” between Miller and Duncan, the Ninth Circuit’s order in Duncan (which was decided by an old en banc panel containing five judges who would be ineligible to vote on any en banc poll held now) compelled a stay in Miller.

Of course, the Miller order didn’t even discuss the fact that that the order in Duncan was, as the Ninth Circuit itself has recognized, procedurally suspect. Federal law requires a majority vote of all active status judges for a case to be taken en banc. That did not occur. Nor did the Miller panel even make a passing effort at a Bruen analysis (to her credit, Judge Consuelo Callahan dissented).

In almost four decades of federal appellate practice, I have never seen an order granting a stay in one case (which is not a decision on the merits) treated as a binding precedent for a stay in a totally separate lawsuit that deals with different laws, different records on appeal, and different plaintiffs.

The only “similarity” between the two cases is that both involved vindication of Second Amendment rights under Bruen. And both involve crass judicial activism and procedural chicanery by the Ninth Circuit.

That court will doubtlessly sit on both cases for as long as possible until, to paraphrase Judge VanDyke, those cases are pried from its cold, dead fingers” by the Supreme Court.

Will the plaintiffs in Duncan and Miller reach out and try and get SCOTUS to rein in the Ninth Circuit sooner rather than later, perhaps via the shadow docket? There are a number of things they could do and I suspect they may. Watch this space for news if and when that occurs.

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