Dissent in Duncan v. Bonta Reveals Insider Shenanigans at the Ninth Circuit on Second Amendment

 

 

 

On September 28, an en banc panel from from the Ninth Circuit grabbed control of the Duncan v. Bonta Magazine ban case, in a stunning departure from the usual order of the court. It may, or may not have violated the rules of the court. Several of the judges on the panel were not happy. Four judges of the eleven judge panel dissented. Of particular interest was the dissent of Judge VanDyke, J. The honorable Judge VanDyke revealed a history of internal shenanigans when the en banc panel first took the case. Judge VanDyke aired some of the Ninth Circuit's dirty laundry. The strong, ideological opposition to the Second Amendment has been clear in the Ninth Circuit from the beginning.

The first part of the dissent explains how the abortion decision in Row v Wade and its followup decisions distorted court procedure and case law. It is used as an example of how poisonous special treatment of a political cause is. The history of the en banc panel by Judge VanDyke shows how opposition to the Second Amendment took priority over everything else. Below is most of the VanDyke dissent concerning the Second amendment.

Cases involving the Second Amendment in our circuit have unfortunately suffered from a like phenomenon. And just as we should no longer distort our rules in abortion cases, we should no longer apply “different rules to different constitutional rights.” Whole Woman’s Health, 136 S. Ct. at 2321 (Thomas, J., dissenting). We should not give Second Amendment cases “special” treatment.

But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place. After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone—not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—including a death penalty case. Priorities.

A lot about this is deeply troubling. First and foremost, we have rules for a reason. We operate under them every day. They should apply equally and consistently, unless and until we change those rules in the normal course. There is no exception for “cases that some of the judges on our court really, really care about.” That would be capricious and erode external and internal confidence in our court. If we lack the temerity to codify a “Second Amendment exception” in our en banc rules, we should have refrained from employing it behind the double veil of “internal court matters” in which only some members of the court participated.

Second, because we have clear, settled, court-wide rules, a discrete group of panel and off-panel judges interested in en banc rehearing shouldn’t have been permitted to circumvent those rules on their own. We have a process for suspending the rules, upon a vote of the entire court.See 9th Cir. General Order 12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off the books by a handful of judges. Which makes it even worse. This off-books approach allowed the would-be en banc advocates to pressure the panels to be “collegial,” and simultaneously concealed these conversations from the rest of the court. It also delimited the scope of the question to whether we would “bend the rules” and allow some exceptions in three specific cases, which prevented the entire court from considering the weightier question of whether, as an institution, we should be suspending our settled rules for “particularly important cases.” Such agreement—however procured—does not somehow confer legitimacy.

In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?

The story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion. As uncomfortable as it is to keep pointing that out, it is important the public keeps being reminded of that fact. 

This correspondent recalls, at the time, thinking the time limit for an en banc hearing had run out. Then the en banc panel happened anyway. Without the inside knowledge of the rules and procedure revealed by Judge VanDyke, the supposition was the Ninth could do what they liked, and they liked to disrespect the Second Amendment. Judge VanDyke reveals a deeper philosophical cancer. The desire of a small group of judges to control the destiny of the nation overrode all precedent and agreed on rules. It is a typical Progressive cancer.  Progressives view the Constitution and the rule of law as obstacles to be "worked around" to get what they want. This is a cancer on the Republic. It collapses power to a oligarchy of the judges. Progressives viewed any limitation on government power as an abomination.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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