Just when you think you’re getting a glimpse of sanity from the Ninth Circuit Court of the United States, the Court’s liberal majority decides to pivot back to defend the court’s longstanding status as the “nutty Ninth”.
Last week, in a scorchingly direct highly-detailed ruling nearly 150 pages long, Federal Judge Roger T. Benitez granted a motion blocking California’s new ammunition background check law. Judge Benitez’s decision wasn’t just surprising, it was deeply detailed, and addressed fundamental problems with very essence of the law that mandates only face-to-face ammunition purchases and a background check.
Among those issues Judge Benitez detailed:
- criminals don’t do background checks, so it does nothing to deter criminals from obtaining ammunition,
- the system was designed to keep California residents- the law-abiding ones- from buying ammunition,
- the law works contrary to its unconstitutional, but stated purpose: to discourage ammunition stockpiling,
- the law is “onerous and convoluted”.
Further, Judge Benitez wrote, the system wasn’t just burdensome, it was built on a flawed information. California’s background check system mistakenly prevented sixteen percent of people trying to follow the law from buying ammunition. Only about 0.3 % should have been banned.
According to Judge Benitez, it should be obvious to anyone with common sense - to see that the Second Amendment must necessarily protect the right to acquire, keep, and bear ammunition for use in arms.
Immediate reaction to the decision was simple: if you lived in California and wanted ammunition, you should order now. Longtime experience with California’s state government indicated that the fact a law was unconstitutional would not be sufficient to prevent the State’s trying to protect it.
Hopefully, Olympic legend Kim Rhode -who brought the suit along with the California State Rifle and Pistol Association- got her order in immediately after the ruling.
Because true to form, the full Ninth Circuit issued an emergency administrative stay late Friday evening, halting Judge Benitez’s preliminary injunction. Essentially continuing the flawed ammunition purchasing requirements.
That appeal to the full court came after Judge Benitez denied California Attorney General Xavier Beccera’s initial motion to stay the injunction.
In his three-page denial, Judge Benitez wrote:
“The Attorney General has conceded that the right to purchase and acquire ammunition is a right protected by the Second Amendment. That is an understanding consistent with Ninth Circuit decisions. Furthermore, as discussed in its preliminary injunction order, this Court found Plaintiffs showed a likelihood of success on the merits.”
Nonetheless, Becerra filed an emergency motion with the Ninth Circuit to stay Judge Benitez’s order. And, despite Judge Benitez’s detailed and evenhanded reasoning behind his decision, the full court granted California’s appeal.
Net/net of the whole decision is simple: Californians remain subject to ammunition purchasing requirements designed for the sole purpose of making it more difficult for individuals in the state to hunt, participate in their chosen recreational endeavor, or, heaven forbid, defend themselves.
Legal relief for the residents of the nine Western states that makeup the Ninth Circuit has been a frequent discussion among legal scholars.
Last year, after the Senate confirmed Judges Lawrence VanDyke and Patrick Bumatay, a total of nine conservative judges had been placed on the 29-member bench by the Trump administration.
That fundamental change diluted the progressive judges’ majority from eleven to only three judges. But the majority remains in place and the historical makeup that made the “nutty Ninth” the go-to court for progressives looking to prevent conservative policy changes remains although diminished.
But Trump’s unrelenting drive to change the makeup of the Ninth, and other activist courts may well turn out to be his most enduring legacy.
Under his administration, both the Second Circuit in New York and the Third Circuit in Philadelphia both now have Republican-appointed majorities. And their rulings are indicative of a more centrist approach to interpreting the law.
But the Ninth, continues frustrate the President. He has called it (among other things) “a complete and total disaster” and “a big thorn in our side.”
Since its authority extends to more than 60-million people, its reach is unquestioned.
Should Mr. Trump win reelection, he has indicated his intent to move forward to appoint more conservative judges. He’s also indicated that if no alternative exists, he may seek to breakup the Ninth, creating another federal District - and diluting its undue influence.
In the meantime, the “nutty Ninth” continues to earn its reputation.
We’ll keep you posted.
