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I actually think the en banc Ninth Circuit is going to surprise everyone here and affirm Judge Benitez, finding the law unconstitutional. Hear me out ....
The writing is clearly on the wall that magazine bans are dead under Bruen. The anti-gun judges on the Ninth Circuit thus certainly do NOT want Duncan going up as the next 2A case SCOTUS decides, as the arguments are so one-sided it is obvious that SCOTUS would issue a strongly worded pro-2A opinion that makes Bruen look tepid by comparison.
So, what can anti-2A Ninth Circuit judges do in the face of what appears to be certain defeat? They can attempt to cauterize the wound. By taking the case en banc and finding the law unconstitutional under Bruen, they can keep some control over the scope of precedent by drafting a very narrowly worded opinion that applies only to magazine bans and nothing else. They can also load the opinion up with tons of anti-2A language and dicta that effectively renders the opinion bad precedent for any other 2A issue beyond magazine bans. And by finding the law unconstitutional, there would be no adverse ruling from which the plaintiffs could appeal to SCOTUS. California likewise probably would not appeal to SCOTUS if they lose even before the liberal Ninth Circuit, so the en banc panel's anti-2A rhetoric would likely be the last word on the subject. And with no appeal to SCOTUS, the precedential scope of the opinion will be limited to the Ninth Circuit, rather than getting rid of magazine bans nationwide.
No other outcome here makes sense when you consider that, by taking the case en banc before the 3-judge panel rules, the Ninth Circuit has just sped this case along by about a year closer to its ultimate resolution. They are looking to get this one off the docket and keep it away from SCOTUS, so that the next 2A case that comes before SCOTUS is on something more controversial, like suppressors or assault weapons bans.
The writing is clearly on the wall that magazine bans are dead under Bruen. The anti-gun judges on the Ninth Circuit thus certainly do NOT want Duncan going up as the next 2A case SCOTUS decides, as the arguments are so one-sided it is obvious that SCOTUS would issue a strongly worded pro-2A opinion that makes Bruen look tepid by comparison.
So, what can anti-2A Ninth Circuit judges do in the face of what appears to be certain defeat? They can attempt to cauterize the wound. By taking the case en banc and finding the law unconstitutional under Bruen, they can keep some control over the scope of precedent by drafting a very narrowly worded opinion that applies only to magazine bans and nothing else. They can also load the opinion up with tons of anti-2A language and dicta that effectively renders the opinion bad precedent for any other 2A issue beyond magazine bans. And by finding the law unconstitutional, there would be no adverse ruling from which the plaintiffs could appeal to SCOTUS. California likewise probably would not appeal to SCOTUS if they lose even before the liberal Ninth Circuit, so the en banc panel's anti-2A rhetoric would likely be the last word on the subject. And with no appeal to SCOTUS, the precedential scope of the opinion will be limited to the Ninth Circuit, rather than getting rid of magazine bans nationwide.
No other outcome here makes sense when you consider that, by taking the case en banc before the 3-judge panel rules, the Ninth Circuit has just sped this case along by about a year closer to its ultimate resolution. They are looking to get this one off the docket and keep it away from SCOTUS, so that the next 2A case that comes before SCOTUS is on something more controversial, like suppressors or assault weapons bans.
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