Will the En Banc 9th Circuit Extend the Second Amendment’s Losing Streak to 51 Cases?

HellerIn 2008, the decision was made. Two years later, McDonald incorporated the Second Amendment. Over the last thirteen years, there have been numerous applications for the Second Amendment. It is very rareAny impact on federal law. All manner of gun control regulations are upheld in all lower courts. The Supreme Court, however, has refused to review them. The Ninth Circuit has led the charge. With a record 50-0, the government has never lost a Second Amendment case. A three-judge panel can find a gun law inconstitutional without fail when it is remanded to the court en banc. These numbers are derived from Judge VanDyke’s disapproval in Duncan v. Bonta. Judge VanDyke is frustrated, as are his fellow Ninth Circuit judges. After each case and every case they have, the judges are losing. (I can imagine Judge Higginson or Costa of the Fifth Circuit could relate.

VanDyke now has a different idea. VanDyke actually wrote a unanimous panel opinion that declared unconstitutional firearm restrictions. Ventura County banned the sale of firearms 48 days before the outbreak. However, other business ventures were open. It will not last. All of us know exactly what’s going to happen next. With a few additional Biden nominees, the Ninth Circuit will en banc this case quicker than Reinhardt. The Ninth Circuit may drop an opinion of 200 pages that supports the intermediate scrutiny gun regulations in about a year. One year later, certiorari will be denied by the Supreme Court over strong dissents of the Court’s conservatives.

This entire procedure is, frankly speaking, a complete waste of time. Judge VanDyke attempted something else: to write an “alternative draft” en banc opinion. fauxpinionIf you’re so inclined, that reverses the panel’s opinion.

Because the Second Amendment intermediate scrutiny standard of our court can produce any result, there’s no reason I couldn’t draft an alternative opinion to help the court. So I can show just how easy it can be to come up with any result under the current framework and so that our majority can start calling this case En banc. This is a win-win situation for everyone. 

There’s more. VanDyke includes an additional element. Mystery Science Theater 3000To his approval.

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Below is my alternative draft. It will include footnotes which provide further explanation of the reasons and assumptions. It is an easy path to follow. Any firearms regulation will be done in only a few simple steps. A circuit that is draconic can get this circuit’s seal of approval.

VanDyke is an artist with a masterful faux opinion. You can see that it could have been written by any one of the Ninth Circuit’s great luminaries. It is absolutely perfect. VanDyke reveals the absurdity of the majority’s jurisprudence if you look below the lines. Here are a few of my favorite:

FN2: We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has not applied strict scrutiny in real life to gun regulation.

FN4 A regulation we have already found does not substantially impact the Second Amendment is easy to uphold under our simplified intermediate scrutiny test.

FN8: Whew. Hard work done. From here, it’s only uphill!

But we are putting this under heightened scrutiny. So very heightened.

FN12 – Again, what we do here doesn’t make much difference. When we can effectively balance competing interest under the Second Amendment intermediate scrutiny it is so simple to justify a regulation.

The next step is what? It is likely that we will get an en- banc call, and then a reversal. This case may not be worth fighting because of the outrageous Ventura County restrictions. The Supreme Court could even reverse the decision under these circumstances. Tandon v. Newsom. While there may not be much value in allowing the Second Amendment to win, it is a good idea to do so once to demonstrate that all cards are not against the right of the individual to keep and bear their arms. It is also the easiest and most effective way to put Reno away. You should think about this!

Oder, the Ninth Circuit may take the Supreme Court’s lead and declare VanDyke as the majority opinion dictaFind out the Actual VanDyke includes holding, with the exception of the footnotes.

VanDyke agrees that “You are welcome.”

You’re welcome.