Tuesday, September 22, 2020

Dissent Excoriates Ninth Circuit Refusal of en banc Rehearing of Second Amendment Case


The recent Ninth Circuit Second Amendment case, Mai v. United States,  shows the powerful influence President Trump has had on the largest Circuit Court in the United States.

The case started in Washington State. The plaintiff, Duy T. Mai, was involuntarily committed to a mental institution for depression and suicidal impulses when he was 17 years old. A few months later, he was released, and went on to become a well adjusted, productive member of society. At age 37, he wished to exercise his Second Amendment right to purchase a firearm. He was unable to do so because of the involuntary commitment when he was 17. He applied to the State of Washington for relief from the disability, which was granted. 

United States federal firearms law, specifically 18 U.S.C. § 922(g)(4), forbid Mai from purchasing or possessing a firearm. Mai sued under 42 U.S.C. § 1983, claiming his Second Amendment rights were being illegally deprived.

The District Court in Washington State found that Mai did not have a case. Mai appealed to the Ninth Circuit. On 11 March, 2020, in a unanimous decision from the three judge panel, the Ninth Circuit upheld the District Court decision. 

Mai asked for an en banc review of his case. En banc reviews of Second Amendment cases seem to be routine for the Ninth Circuit, when the cases favor protecting Second Amendment rights. 

This case, which had already ruled against Second Amendment protections, was, unsurprisingly, not granted an en banc review. 

The surprising and positive event was eight judges dissented from the majority, and believed an en banc review was called for. They dissented so strongly, they wrote and/or signed onto an extremely well argued, 29 page dissent.

The dissent is a powerful defense of the exercise of Second Amendment rights, and of Constitutional limitation of government power.  Eight judges are nearly a third of the judges on the Ninth Circuit. Seven of those eight judges were appointed by President Donald Trump. Here is an excerpt from the dissent.

Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges VanDyke, and with whom judges Ikuta, Bade, and Hunsaker join as to Part IV, and with whom Judges Bennett, Collins, and Bress join as to Part IV.B, stated that the panel’s opinion justified the disturbing deprivation of a fundamental right by ignoring the history and tradition of the Second Amendment and applying ill-suited, foreign statistical studies that had no bearing on plaintiff’s circumstances. The proper inquiry would have recognized that the lifetime ban imposed by § 922(g)(4) on plaintiff is unequivocally a complete deprivation of his core right to home gun ownership, and therefore that the law was unconstitutional. Judge Bumatay stated that the panel incorrectly identified intermediate scrutiny as the proper standard of review and then flubbed its application. By failing to correct these errors, the Court undermined its Second Amendment jurisprudence and gave an unworthy judicial imprimatur to the false premise that once mentally ill, always mentally ill. Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judge Bumatay, stated that he agreed with Judge Bumatay’s dissent from the denial of rehearing en banc and wrote separately because he believes that the panel should have reconsidered the panel’s circular logic about who lies at the core of the Second Amendment. Judge VanDyke stated that the panel’s bootstrapping, class-based approach to defining those at the “core” of the Second Amendment was unjust and antithetical to controlling case law. Judge VanDyke also stated that the court’s intermediate scrutiny jurisprudence is broken, at least as to Second Amendment claims.

All but one of the judges who actively dissented, in order to protect and defend Second Amendment rights at the Ninth Circuit, were appointed by President Donald Trump. The other judge was appointed by President George W. Bush.

Judge       Appointed by

Bade         Trump appointee

Bumatay   Trump appointee

Bennet      Trump appointee

Bress        Trump appointee

Collin       Trump appointee

Hunsaker Trump appointee

Ikuta        G. W.  Bush appointee

VanDyke   Trump appointee

We do not know how the other three judges appointed by Donald Trump voted. We only know they did not sign on to the dissent. Judge Lee has shown excellent support for the Second Amendment in Duncan v. Beccera.  How Judges Eric Miller and Ryan D. Nelson voted, or if they were recused, is unknown.  Only active judges on the court vote on en banc decisions.  There are 29 active judges on the Ninth Circuit. Some judges are recused from voting on some cases.

The votes from the court on whether to rehear a case en banc are not made available to the public. It seems likely this vote was a close one.

If President Donald Trump is re-elected, the chances a good he could appoint another 10 judges to the Ninth Circuit, not to mention the other circuits and the Supreme Court. 

Ten more Trump appointed judges on the Ninth Circuit would almost certainly flip the circuit on Second Amendment cases, given the polar opposites of belief on how the Amendment should be treated, by Trump appointees and those appointed to the court from earlier times.

The dissent on the en banc review in Mai v. United States is an important look into how President Trump might change the Ninth Circuit in a second term.

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

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