Thread by @MorosKostas

Alright, I think I'm the last one getting to it as I was driving when this released, but time for a thread on the en banc Duncan ruling.

For those not as informed, this loss was 100% expected. it's the same panel as the 2020 en banc, and the same exact result, 7-4. For the judges in the majority, Bruen clearly changed nothing because they decided this result before even thinking about the relevant law. We all know it, and it's important we be open about that, as dissenting judges have been in the past.

But in an important way, this is actually a win on timing. They could have held onto this for way more time. Instead, CRPA can seek cert, and maybe even be considered alongside Snope.

This thread is also a historic one because I have to figure out how to cover the first-ever video dissent!

Bruen was clear that judges are not supposed to engage in interest balancing, and yet every hostile ruling on magazines or "Assault weapons" begins by heartstring-tugging about mass shootings.

Besides being wrong on the law, it's also wrong on policy. California's laws have not stopped it from having a disproportionate share of mass shootings.

Heller was clear that an arm includes everything someone takes into their hands to cast at or strike another, citing founding-era dictionaries.

And how on earth does a magazine not fit this definition?

Ammo boxes still exist. No one is arguing those are arms. Magazines are distinct from them.

And this existed in the 19th century too; a Winchester rifle's fixed magazine was clearly part of the arm, but a puch with extra ammo carried by the wielder is not.

Magazines being removable today doesn't change that they are arms.

You can literally do this with every part of the gun. By itself, a trigger is harmless. By itself, a barrel is harmless. Hell, by itself even ammunition is harmless. It's a minor firecracker if not set off in a barrel.

The Ninth Circuit says that while a magazine may be necessary to use a firearm and therefore gets some protection, there is no need for a "large capacity" magazine.

And who gets to define what "large" is? The government, of course! Just like Bruen intended! 🤣

Ummm we have a suppressor case brief coming up next week....kinda seems like the en banc panel is giving Sanchez an L before our brief is even submitted.

We'll have to rely on SCOTUS nuking Duncan for any chance, I guess.

What a perversion of founding intent to pretend that the same people who recognized a right to resist tyranny would endorse a ruling like this.

Also, on that prior post, they say "a broad range of arms."

But they are totally going to uphold a ban, as they have before, on the most common rifle in the country!

Well, this is a minor win in an otherwise terrible ruling.

First of all, you can absolutely fire a levergun faster than "one round every three seconds."

But second, they gloss over the far bigger takeaway; gun technology went through a giant leap to go from single-shot muzzleloaders to repeating arms. Yet NOT ONE STATE BANNED THEM.

That's your historical tradition right there.

The first historical analogy is gunpowder storage rules, which:

1. Didn't block you from owning gun powder; and
2. Were not about dealing with intentional violence.

Totally different how, totally different why. They are not even remotely similar. This isn't like Rahimi where the historical laws cited at least were on the topic of disarming dangerous people. This is completely unconnected.

Trap gun laws restricted a way of setting up a gun such that it would fire if the trap was sprung. Not even close to the same as entirely banning a type of arm.

By this logic of course, you could ban handguns.

And I have no doubt that this en banc panel would uphold a handgun ban if they could. They will uphold just about everything except what the Supreme Court has specifically said is protected. Which is why SCOTUS needs to take more cases.

But they ignore that by the end of the 19th century, as @davekopel has written about, there were either no possession bans on bowie knives, or very few such bans (I forget which)

@davekopel Hmm. I'm noticing something legislatures did NOT do.

This is stupid. The gunpowder storage laws typically only applied to large amounts of gunpowder stored in particular locations. They were nothing like a magazine possession ban.

They were more like a zoning regulation, really.

This is hilarious coming from the court that has upheld (and will uphold) "assault weapon" bans.

But they do qualify it with "lawful."

I guess the right that shall not be infringed is buying guns the government says are approved.

This is abject nonsense. The Supreme Court was clear in Bruen that in addition to "how" and "why", the degree of burden imposed matters too.

If a historical law is vaguely similar, but imposed a dramatically lesser burden than the modern law, the comparison is not valid.

For example, in Boland, California pointed to a couple of outlier states that had barrel-proofing laws. They argued those were similar to the California handgun roster, because they too just make sure guns are "Safe". But the burdens they impose are way more than merely making sure a gun's barrel won't explode when you fire it.

Again, they say all this, but will totally uphold a ban on the most common rifles in the country next.

Totally shameless panel.

I love how they always grasp their pearls and say "Plaintiff's argument would mean the government can't do something, could you imagine?!?!"

Yes, I could imagine. It's a right that says it "shall not be infringed."

There are only 176,000 because the federal government effectively banned them in 1986.

But I agree that machine guns are arms and should be subject to the historical analysis. A real one; not the trash the Ninth Circuit did here.

They don't understand, or refuse to understand, that the Second Amendment is about empowering the people, It doesn't matter if it would be convenient or not for the government.

The founders intended an expansive right that the people could use to defend themselves, defeat foreign invaders, and topple tyrants who overthrew our constitutional government.

Judge Berzon wrote a separate opinion to complain about VanDyke making a video, becuase God forbid judges convey their message in an effective manner.

These people just hate that someone can point out how ignorant they are about firearms. Knowing anything about guns is haram.

Oh my God, Berzon's concurrence is like 14 pages long to complain about a video. Sorry guys, I just can't.

Skipping to the dissents.

We can now cite this line forever. Thank you Judge Nelson.

Great stuff from Bumatay on why the majoity erred by just accepting at face value the designation of "large capacity magazines."

Bumatay says the majority basically just revived interest-balancing by another name, and he's of course right.

Bumatay all but screams at the Supreme Court for help. Will they answer? We'll see soon!

Bumatay explains why magazines are not accoutrements by actually citing examples of accoutrements in historical context. The majority did not do this (for obvious reasons).

And if California made the limit 5 rounds, or 1 for that matter, the 9th would work even more magic.

Hackish analysis always crumbles under any scrutiny, as Bumatay demonstrates here.

Sorry for the delay, other commitments.

This is a great point from Bumatay too. He's just way more sharp than the majority.

Exactly. The broad problem with the majority is they still treat the Second Amendment as a very narrow exception to the government's presumed power to ban everything they want.

It's intended to be a broad right that can only be infringed on very narrow grounds.

It really is extraordinary how the majority's basic response to the "common use" language is basically "Well we don't like that, and SCOTUS can't possibly have meant what they said!"

Great point. All these years later, the Ninth Circuit is STILL relying on Breyer's Heller dissent and treating it like the majority opinion.

Exactly, these sorts of laws were not even enough to save New York in Bruen, which was about carry.

So how could they possibly justify possession bans? The majority did not bother to address this!

This is what's most telling. The clear historical tradition and principle is that arms were never categorically banned. Various regulations may have existed, particularly if you do tolerate 19th century analogues. But never full bans.

The powder storage laws are so poor a comparison that it's stunning the panel even used them. They are totally shameless. Even SCOTUS has rejected this comparison in the handgun ban context, so why would it be persuasive here?

Bumatay ends with a broader analytical criticism of the Ninth Circuit's approach, which of course, is a return to interest balancing by another name.

I've read the "nuanced approach" to be the analogical discussion. Whereas if there is no new technology or societal concern, you don't do analogues at all and you look for "distinctly similar" historical laws.

While he doesn't go as far as doing a video like VanDyke, Judge Bumatay does also get creative in his takedown of the hack majority opinion, using a table to compare what they said pre-Bruen to now, and how little it changed.

Superb dissent by Bumatay. He can have the second SCOTUS vacancy.

But now it's time for the best circuit judge in the country....LET'S GO!

VanDyke begins by pointing out that SCOTUS already vacated the last Duncan ruling. What a crazy coincidence that under the new analysis, the 7 judges in the majority reached identical conclusions! Wow!

THANK YOU!

I feel like I am taking crazy pills with even many good judges going along with the supposed "two part test" of Bruen.

No, there is only one part. And if there is a two-part test, that first part is very simple to meet.

And here is the video that sparked so much controversy and rage.

I really don't see the problem, and I do think they are mad at him because visual representations make their absurd arguments all the more easy to expose.

Basically, this is similar to the rage at Thomas for citing those @gunpolicy drawings in Cargill.

Haha VanDyke making the point I made early in this thread about how no part of a firearm, in a vacuum, is an arm in and of itself.

💀

Ya, that's pretty much the majority holding, stated more honestly.

VanDyke just brings out the flamethrower here. I love it.

Well, the answer is that they will uphold all gun laws...except what the Supreme Court has expressly struck down.

I argued exactly this in our amicus brief for the Nguyen matter. I also pointed out a list of cases in which California argued - surprise! - they always get to use the "more nuanced approach."

Like Bumatay, VanDyke points out how the majority is just repackaging its prior conclusions.

VanDyke explains the damage that will come from this ruling (if not reversed by SCOTUS).

Excellent point here about how the majority completely ignores how the law affects law-abiding people.

VanDyke points to an example of an incident when ten rounds was not enough.

BTW, congrats to Mr. Joyner on his off-roster Glock 43! LEO exemptions are nice 🤣

VanDyke concludes by responding to Berzon's criticism of his video....hilariously.

VanDyke is running circles around his colleagues, jeeze.

💀💀

Yep. This is what I noted earlier. Pictures and video really expose the ignorance of antigun judges. Which is why they hate them.

Incredible work by VanDyke here in concluding.

The video is fun - VanDyke jokes about how his production values will fall far short of what we are used to, but I think that just adds to the charm of it.

In sum, this ruling was exactly what we expected when the Ninth Circuit questionably took this as a "comeback" case to the exact same 11-judge panel (which they did to make sure there was no chance of a conservative panel roll).

The Supreme Court vacated and remanded their last ruling so they could redo it in light of Bruen. They kicked it all the way back down to the district court to waste two and a half years. And then, they reached the exact same ruling. Not one of the 7 judges in the majority changed their position even with Bruen shredding their prior interest-balancing method. They just repackaged their same logic into a Bruen/Rahimi costume, and issued it again.

So now the games are over.

This case has been pending since 2017. It has already been vacated and remanded by SCOTUS once. It is a final judgment case with a lengthy record. The Ninth Circuit has, as Judge Nelson put it, given the Supreme Court the middle finger and refused to budge from their prior result. If SCOTUS does not intervene, thousands of Californians with "freedom week" magazines will permanently be dispossessed of their property (or become criminals).

The stakes couldn't be higher, and there are NO EXCUSES for the Supreme Court to deny cert. If they deny even this, then the message is clear: they are hanging the Second Amendment out to dry and didn't really mean what they said in Bruen.

I hope they grant cert in this case, Snope, or both, and we finally put this issue of bans on common arms to bed.

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