Ninth Circuit, 3 Judge Panel: Magazines Protected by Second Amendment

 

On 4 April, 2019, the Honorable Roger T. Benitez issued a stay on his finding  the ban on magazines over 10 rounds was unconstitutional under the Second Amendment.  The stay was issued pending an appeal to the Ninth Circuit.  On 14 August, 2020, the three judge panel issued their opinion.

The three judge panel of the Ninth Circuit upheld Judge Benitez confirming the magazine ban as unconstitutional. 

It was a split decision, with Judge Lee, appointed by President Trump, and Judge Callahan, appointed by President Bush, agreeing the ban on magazines is unconstitutional; and Judge Lynn, appointed by President Clinton, dissenting.

  Here is the link to the opinion by the three judge panel.

The opinion and dissent follow what has become the typical split in the courts on the power of the Constitution. One side claims words mean things, and limits on government power, placed in the Constitution, must be honored. 

The other side has dominated for 70 years. It has the essential Progressive view of the Constitution. In that view, the Constitution is infinitely malleable; the meaning of words can be changed as the current court deems necessary to adapt the Constitution to the meaning judges (or more properly, Progressives) wish it to mean at any time.  If it is to the advantage of Progressives to uphold the First Amendment; it will be upheld. If it is to the advantage of Progressives to ignore or dismiss the Second Amendment; it will be ignored or dismissed.

The essence of the opinion is expressed in these two  paragraphs, taken from the text:  

As for prong one of our analysis, the record shows that LCMs are not subject to the exceptions announced in Heller. Magazines are protected arms, and larger capacity magazines are not unusual. LCMs have never been subject to longstanding prohibitions. And a historic analysis fails to persuade that LCMs otherwise fall outside constitutional protections. We hold that California Penal Code section 32310 burdens protected conduct and proceed to the second prong of the analysis.

 Stated another way, and reinforced in this paragraph:

 Put another way, a “substantial burden” on the Second Amendment is viewed not through a policy prism but through the lens of a fundamental and enumerated constitutional right. We would be looking through the wrong end of a sight-glass if we asked whether the government permits the people to retain some of the core fundamental and enumerated right. Instead, Heller counsels us to look at whether the government regulation restricts the core fundamental right from the outset. In other words, we look to what a restriction takes away rather than what it leaves behind. Here, California’s law takes away a substantial swath of the core constitutional right of self-defense because it bans possession of half of all magazines in America today, even though they are common in guns used for self-defense. In short, a law that takes away a substantial portion of arms commonly used by citizens for self-defense imposes a substantial burden on the Second Amendment.

Lawyers (judges) are expert wordsmiths or they do not rise in their professions. When the Constitution confounds their purposes they can find a convoluted way to justify confounding the Constitution. Thus we have the complicated, absurd construct in the Ninth Circuit to find ways to effectively dismiss and neuter the Second Amendment.

Judge Lynn attempts to use the construct in her dissent. Essentially, the dissent consists of these claims:

• Large capacity magazines are not arms
• The Second Amendment applies to magazines, but they are not central to the "core" of the Second Amendment
  
• The purposes of the government are more important;
• Therefore, intermediate scrutiny applies in this case;
• Intermediate scrutiny has, essentially, whatever meaning we assign to it;
• Therefore the Second Amendment does not apply to magazines that have over 10 rounds. 
• Because, other circuits have already approved of this method to circumvent the Second Amendment.
  

It is not a particularly strong argument. 

A great many people are wondering if the stay, put in place by Judge Benitez, will now be lifted, allowing a flood of the highly desired magazines into California, as happened last March and April, when as many as a million magazines were purchased by California citizens and residents. 

It is likely the stay was put in place to protect those who had purchased magazines which were now completely legal to own, but which might be made illegal if the appeal reversed Judge Benitez' decision. 

It appears the stay will remain in place as long as an appeals process is ongoing. From the stay put in place by Judge Benitez:

 THEREFORE, IT IS HEREBY ORDERED that the Judgment is stayed in part pending final resolution of the appeal from the Judgment. The permanent injunction enjoining enforcement of California Penal Code §32310(a) and (b)is hereby stayed,effective 5:00 p.m., Friday, April 5, 2019.

The Judgment is stayed in part pending final resolution of the appeal from the Judgment.  

Final resolution has not yet occurred. AG Becerra can ask for the Ninth to hear the case en banc. A singular judge on the Ninth can  ask for the Ninth to hear the case en banc. Then the Ninth would vote whether to hear the case or not. 

After the en banc decisions, then AG Becerra can appeal to the Supreme Court; or Duncan can appeal to the Supreme Court.

The Supreme Court can agree to grant certiorari or not. If they agree to hear the case, then the appeal process would continue until the Supreme Court issues an opinion. 

The en banc decision could take years by itself. A Supreme Court decision could take more years. 

Or, alternately, an en banc decision could be eliminated and the appeal directed to the Supreme Court very quickly.

AG Becerra has not yet made a decision. 

Virtually all Second Amendment cases that uphold the Amendment as having significant power, have been referred to en banc panels on the Ninth Circuit. 

President Trump has changed the face of the Ninth Circuit. It is no longer as reliably Progressive as it once was. The odds are about 40% that an en banc panel would uphold the three judge panel and the effective power of the Second Amendment.

Is AG Becerra feeling lucky?

There is the issue of timing, and the health of Ruth Bader Ginsberg (RBG). Will the elderly, frail and ill Supreme Court Justice be on the Supreme Court two or three or four years from now, if the case is appealed to the Supreme Court after an en banc hearing? 

Might it be better, from a Progressive view, to push the case to the Supreme Court while RBG is still on the court? 

What about the unreliable Chief Justice, John Roberts? Neither side knows which way he might rule on a Second Amendment case. The Court has shied away from them for more than a decade.

In all of this, the Presidential election looms large. 

If President Trump had not been elected, the Second Amendment would already be a dead issue from rulings by a far left Supreme Court dominated by two far left justices appointed by Hillary Clinton, replacing Justices Scalia and Kennedy. 

Judge Lee would not be on the Ninth Circuit, which would still be reliably far left. 

In 2020, we are facing yet another decision about whether we will continue to restore the rule of the Constitution and the rule of law; or will we devolve into the totalitarianism of the left, who have vowed to change the rules so that no one like President Trump will ever be able to be elected again.  

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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