Federal Appeals Court Strikes Down California Magazine Ban

[stdreb27]

Renegade has it almost right. CA cannot ask for an appeal from the 9th, that's what this case was. However, the 9th itself can decide, "Hey, this was a really important case, and we need to take another look at it, so we'll try this case again"

The new panel that will hear the case de novo (meaning a complete do-over, not just an appeal where only certain things can be reviewed) is called an "en banc" panel.

The process is this: any judge in the 9th can ask the 9th to re-hear the case via an en banc panel. The clerk schedules a time for the vote, and all the judges in 9th will vote, and if there's a majority, then the case is taken en banc.

An en banc panel of a Circuit Court consists of 11 judges, one of which must be the Chief Judge, who sits on every en banc panel. In case you didn't know, the current Chief Judge is WILDLY anti-2A, a complete a-hole named Sydney Thomas. He actively hates the 2A, and will definitely push for this decision to be taken en banc. So you can be sure it will go to a vote.

After 100 years, the en banc panel will give us their complete BS response, and at that point, it can be appealed to SCOTUS.

The 9th has done this before. In fact, the only time in living memory when the 9th ever issued a pro-2A opinion it was taken en banc, with Sydney Thomas leading the charge, and reversed. SCOTUS then took a crap on us, and would not grant our case cert. So expect the worst, and you will not be disappointed. Sorry, but that's probably what's going to happen.

Particularly with Benidict Roberts as Chief Justice.


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[etmo]

Can you explain why one of the judges on the 3 judge panel was taken from the 5th? She was the dissenting vote and is from Northern District of Texas, Clinton appointee.

Yes. First, let me apologize for conveying incorrect information earlier. Under the current FRAP, parties to the decision have 14 days to request a re-hearing en banc. So CA does have 14 days to request a re-hearing.

That request can be completely ignored, rejected, or granted.

The method of which I spoke, where a judge from the 9th requests a re-hearing en banc, cannot be ignored, it must go to a vote. This method is called "sua sponte".

Anyways, I'll correct my post above, and now to your question. The answer is: it happens regularly. It is known as a "visiting judge" . In United States federal courts, this is referred to as an assignment "by designation" of the Chief Justice of the United States (for inter-circuit assignments) or the Circuit Chief Judge (for intra-circuit assignments). It is covered under Title 28, Section 292: https://www.law.cornell.edu/uscode/text/28/292 . Sometimes even retired SCOTUS Justices have sat as visiting judges. It is generally done when caseload pressures are high in one Circuit while another has some spare bandwith, but sometimes it is done because a certain judge or Justice has extraordinary experience in a critical area.

Just to lay it out there in plain English, it means that Roberts told Lynn to get her a$$ out to CA and work on this case.

 

[Fishkiller]

Renegade has it right, and there is another avenue as well. CA can ask for an appeal from the 9th within 14 days, and that request can be ignored, granted or rejected. However, the 9th itself can decide, "Hey, this was a really important case, and we need to take another look at it, so we'll try this case again".

The new panel that will hear the case de novo (meaning a complete do-over, not just an appeal where only certain things can be reviewed) is called an "en banc" panel.

The process is this: any judge in the 9th can ask the 9th to re-hear the case via an en banc panel. The clerk schedules a time for the vote, and all the judges in 9th will vote, and if there's a majority, then the case is taken en banc. This is called a "sua sponte" request for a re-hearing en banc.

An en banc panel of a Circuit Court consists of 11 judges, one of which must be the Chief Judge, who sits on every en banc panel. In case you didn't know, the current Chief Judge is WILDLY anti-2A, a complete a-hole named Sydney Thomas. He actively hates the 2A, and will definitely push for this decision to be taken en banc. So you can be sure it will go to a vote.

After 100 years, the en banc panel will give us their complete BS response, and at that point, it can be appealed to SCOTUS.

The 9th has done this before. In fact, the only time in living memory when the 9th ever issued a pro-2A opinion it was taken en banc, with Sydney Thomas leading the charge, and reversed. SCOTUS then took a crap on us, and would not grant our case cert. So expect the worst, and you will not be disappointed. Sorry, but that's probably what's going to happen.

Not sure it will go that way. the current President has appointed number of conservatives. And it may be close enough that the ruling will stand. Either way it goes the losing side will appeal to SCOTUS

This is from

Donald Trump reshapes 9th Circuit with conservative appointments

Nearing the three-year mark of his first term, President Trump already has appointed a whopping 10 judges to the U.S. Court of Appeals for the 9th Circuit, giving a conservative makeover to the well-known liberal bench.

www.washingtontimes.com

" Currently, the circuit has 16 Democrat-appointed and 13 Republican-appointed active judges. Including senior judges who get fewer cases, there’s a total of 25 Democrat-appointed and 24 GOP-appointed jurists. "

 

[etmo]

Not sure it will go that way. the current President has appointed number of conservatives. And it may be close enough that the ruling will stand. Either way it goes the losing side will appeal to SCOTUS

This is from

Donald Trump reshapes 9th Circuit with conservative appointments

Nearing the three-year mark of his first term, President Trump already has appointed a whopping 10 judges to the U.S. Court of Appeals for the 9th Circuit, giving a conservative makeover to the well-known liberal bench.

www.washingtontimes.com

" Currently, the circuit has 16 Democrat-appointed and 13 Republican-appointed active judges. Including senior judges who get fewer cases, there’s a total of 25 Democrat-appointed and 24 GOP-appointed jurists. "

You're right, nothing is 100% certain, but if you can get someone to bet money, it's a solid bet. The issue is that it's more nuanced than just which judges were appointed by Republicans or democrats. The Bush administrations failed to properly vet many of their nominees for Article 3 judges and Justices, so they appointed a lot of judges who are very weak-in-the-knees in terms of supporting the Constitution. More than a few of those judges are on the 9th with Senior status, and are definitely anti-2A.

Back when there was much more cooperation between the 2 parties, if there was an opening in a Circuit court, the Senator(s) for the home state of the retiring judge would submit a "blue slip" to the President, which was their recommendation for a replacement for the retiring judge. Very often, the President would accept that recommendation in exchange for "vote my way on Bill 123", or perhaps just a little back and forth with the Senator(s) in question.

So CA, being the democrat nightmare that it is, their blue slips to the Bush administrations were filled with the most awful, Constitution-shredding scumbags you could imagine, but the Bush's would accept them in exchange for support on some budget issue or whatever.

Trump is the first Republican President to have a pair, and tell the democrat Senators to shove their blue slips up their arse, and just appoint actual judges instead of political activists. He has done more for the 9th Circuit than any President in modern history, but one Trump term isn't enough to undo the damage done by 2 Obama terms, 2 Clinton terms, and all the negligence of the Bush administrations. The 9th absolutely needs another Trump term, and maybe more besides, before it can be even remotely considered a fair and balanced Circuit.

OH, and just to give you a more complete picture:
The process of the selection of which judges will sit on the en banc panel (assuming the 9th decides to re-hear the case) has no external oversight -- it's all handled by, you guessed it, the Chief Judge, Sydney Runyon Thomas, 2A hater extraordinaire.

 

[oldag]

I really do not want this to go to SCOTUS.

The four conservative justices are so unsure of Roberts that they have declined to hear 2A cases even while stating that the 2A needs to be affirmed. They obviously don't trust him.

 

[etmo]

The four conservative justices are so unsure of Roberts that they have declined to hear 2A cases even while stating that the 2A needs to be affirmed. They obviously don't trust him.

You are right
but remember, the 4 "liberal" Justices also do not trust him. This is clear because the 4 liberal Justices could grant cert to any case they wanted, and nothing in the world could stop them -- it only takes 4 Justices to vote "yes" and a case will appear before SCOTUS. So if they knew that Roberts would vote against the 2A, they would grant cert and destroy the 2A, but they have not done that.

So don't worry, the case won't appear before SCOTUS because nobody will grant cert. Unfortunately, that means when the 9th reverses their decision en banc, we're stuck with it unless Trump gets another term...

 

[Renegade]

but remember, the 4 "liberal" Justices also do not trust him. This is clear because the 4 liberal Justices could grant cert to any case they wanted, and nothing in the world could stop them --

LOL was going to post this same thing. Both sides could force cert, but neither trusts how Roberts will rule.

Breyer is as anti-gun as the come, he would love his legacy to be some sweeping anti-2A ruling, but he also does not want his legacy to be a sweeping pro-2a ruling.

 

[oldag]

LOL was going to post this same thing. Both sides could force cert, but neither trusts how Roberts will rule.

Breyer is as anti-gun as the come, he would love his legacy to be some sweeping anti-2A ruling, but he also does not want his legacy to be a sweeping pro-2a ruling.

Used to be referred to as a Mexican standoff?

 

[Frank59]

Used to be referred to as a Mexican standoff?
View attachment 223848

My grandma used to say that all the time...LoL

 

[etmo]

Used to be referred to as a Mexican standoff?

At the SCOTUS level, sure

but one in every 6 Americans lives under the jurisdiction of the 9th Circuit, and it's no standoff for them. Their 2A rights continue to be mangled by the 9th Circuit, and they have no hope of relief because SCOTUS shirks its duty.

 

[oldag]

At the SCOTUS level, sure

but one in every 6 Americans lives under the jurisdiction of the 9th Circuit, and it's no standoff for them. Their 2A rights continue to be mangled by the 9th Circuit, and they have no hope of relief because SCOTUS shirks its duty.

Hopefully Trump gets reelected and appoints a few more to the 9th, changing the balance.

 

[oldag]

At the SCOTUS level, sure

but one in every 6 Americans lives under the jurisdiction of the 9th Circuit, and it's no standoff for them. Their 2A rights continue to be mangled by the 9th Circuit, and they have no hope of relief because Roberts shirks his duty.

Also, FIFY

 

[jrbfishn]

Hopefully Trump gets reelected and appoints a few more to the 9th, changing the balance.

What we really need is for Trump to win and appoint 2-3 more REAL Constitutional judges to SCOTUS.
And the Ninth...

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[etmo]

What we really need is for Trump to win and appoint 2-3 more REAL Constitutional judges to SCOTUS.

3???? I don't even dream that big.

"So Sotomayor, Breyer and RBG are driving to the theater, when out of nowhere...."

 

[Psssniper]

Pretty much this

My guess? It will be appealed en banc, the full 9th will reverse, and SCOTUS will refuse to take up. Thus the ban will be constitutional.

 

[etmo]

Just to keep this thread up-to-date
As many expected, CA AG Becerra just asked the 9th to re-hear the case en banc (today was the deadline for him to do so).

That request starts a 21 day clock ticking. In 21 days or less, the 9th has 4 options:

1) 9th does nothing for 21 days -- case goes away, panel is upheld, opinion is issued, Benitez (the Federal District judge who originally decided that the California magazine ban was unconstitutional and issued a stay on his decision while all this crap gets figured out) lifts stay, and none of us will be able to find mags because Californians will be buying them all for a while.

2) judge asks for 14 day extension to ponder their navels, then goes back to step 1 or forward to step 3 or 4:

3) any judge asks if the 3-judge panel wants another crack at the case. If the panel says 'yes, once was not enough', then the panel does a complete do-over, and their decision is final, no en banc after that. If the panel says, "No, been there, done that", then for a period (don't remember how long), any judge can ask for en banc panel vote or the 9th can ignore it for the period and let it die as in step 1.

4) any active or senior status judge asks for vote on en banc. Clerk of the circuit schedules a vote, and majority rules.

Probably what will happen is #4. The Chief Judge of the 9th hates the 2A, and he will call for a vote or tell one of his flunkies to call for a vote.