Miller v. Bonta 9th Ckt "assault weapons": Held for Duncan result 1-26-24

[AlmostHeaven]

What mechanism is there to impanel an en banc panel in a case that has not been heard by a 3 Judge panel? IANAL, so someone more knowledgeable in the subject please explain it.

The Ninth Circuit has demonstrated an insatiable willingness to disrupt, delay, and destroy Second Amendment litigation using whatever powers available. Absent interlocutory intervention from the Supreme Court, the Ninth Circuit could interpret its own rules however it likes to classify Miller v. Bonta as a comeback case, regardless of the reasonableness of the maneuver. In fact, since the full court sets the rules, the judges could literally make a modification specifically to encompass the circumstances.

[Bolt_Action]

What mechanism is there to impanel an en banc panel in a case that has not been heard by a 3 Judge panel? IANAL, so someone more knowledgeable in the subject please explain it.

Why does it matter if there’s a mechanism? Or if the process follows the rules? Or is rooted in any level of legitimacy whatsoever? What difference do general orders make? Rules, laws, procedures, equal protection, due process… it’s all just theoretical in front of a group who believes the ends justify the means. Nothing but parchment barriers.

[Sgt Raven]

I don't recall if this qualifies as a claw back or not . See 9th Circ General Orders 3.6 b.:

Read what you posted and tell us when Miller was taken en banc? Miller never made it past the 3 Judge panel before it was put on hold awaiting Bruen. After Bruen it was remanded back to Judge Benitez. How can a en banc panel claw back that which they never had. For an en banc panel to take Miller, it first must have a en banc panel, impaneled for it.


All you posting other wise, tell us how it gets to an en banc panel, that has not been impaneled for it? Miller could be sent back to the 3 Judge panel that had it prior to Bruen. That claw back could happen.

[TruOil]

What mechanism is there to impanel an en banc panel in a case that has not been heard by a 3 Judge panel? IANAL, so someone more knowledgeable in the subject please explain it.

FRAP Ninth Circuit, Rule 35:
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court?s decisions; or
(2)the proceeding involves a question of exceptional importance.

(b)Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.
(1)The petition must begin with a statement that either:
(A)the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court?s decisions; or
(B)the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

So yes, they can do it, apparently, even when it is not a "claw back."

[AlmostHeaven]

Read what you posted and tell us when Miller was taken en banc? Miller never made it past the 3 Judge panel before it was put on hold awaiting Bruen. After Bruen it was remanded back to Judge Benitez. How can a en banc panel claw back that which they never had. For an en banc panel to take Miller, it first must have a en banc panel, impaneled for it.


All you posting other wise, tell us how it gets to an en banc panel, that has not been impaneled for it? Miller could be sent back to the 3 Judge panel that had it prior to Bruen. That claw back could happen.

The Ninth Circuit can literally write a new rule to impanel an en banc panel covering specific facially neutral circumstances that happen to apply to Miller v. Bonta.

[Sgt Raven]

From a list of the rules for calling an en banc (2017)
IDK if these have been changed.

If a majority of the active, non-recused judges vote in favor of rehearing en banc, then the case is reheard by the en banc court.

Judges on the 9th Circuit.
51 total both (D). & (R)




Senior judges.
14 (D). 9 (R)


Active Judges
15 (D) 13 (R)
the Chief Judge is 1 of the 15 (D)


Of the Active Judges.

If we peel off one (D) it's a tie.
If we peel off two, it'd a win.

[Chewy65]

Read what you posted and tell us when Miller was taken en banc? Miller never made it past the 3 Judge panel before it was put on hold awaiting Bruen. After Bruen it was remanded back to Judge Benitez. How can a en banc panel claw back that which they never had. For an en banc panel to take Miller, it first must have a en banc panel, impaneled for it.


All you posting other wise, tell us how it gets to an en banc panel, that has not been impaneled for it? Miller could be sent back to the 3 Judge panel that had it prior to Bruen. That claw back could happen.

If you Read what I posted, I didn't recall if it qualified as a comeback. Some of the active cases would and I was just suggesting a clawback if this was one of them.

[darkwater34]

It still depends a lot on the Bloomberg and Sorros money flow, their money, is like an endless money river, flowing into pockets of people easily corrupted by it. I say the financial backgrounds on any sitting judge should be audited biannualaly. Any sitting judge with discrepancies in their financials should be unseated and disbarred if not incarcerated.

[Bolt_Action]

From a list of the rules for calling an en banc (2017)
IDK if these have been changed.

Judges on the 9th Circuit.
51 total both (D). & (R)




Senior judges.
14 (D). 9 (R)


Active Judges
15 (D) 13 (R)
the Chief Judge is 1 of the 15 (D)


Of the Active Judges.

If we peel off one (D) it's a tie.
If we peel off two, it'd a win.

You just don't get it. You aren't "peeling off" any judges. Sidney Thomas has decided on behalf of the entire 9th circuit how this is going to go down, and that's the end of it. And we know what he thinks because he's already told us. Nothing else matters. Procedure and rules don't matter, because they can (and will) be changed to achieve the desired outcome. Sidney will get what he wants because he controls the game. Since the only organization that can stop him is SCOTUS, his plan is to take this case and then sit on it indefinitely. Nothing will happen until either the political makeup of SCOTUS changes, or the makeup of the 9th Circuit changes. The standoff will last for years, or decades if necessary.

"But that's not fair" you say! Well, you're right, it's not. But that's the whole idea behind a fixed game, it's not fair.

This is why the most likely chance of there being any action on this issue in a reasonable time frame lies with a negative ruling in Bianchi v Frosh, which takes us back to SCOTUS.

[RickD427]

You just don't get it. You aren't "peeling off" any judges. Sidney Thomas has decided on behalf of the entire 9th circuit how this is going to go down, and that's the end of it. And we know what he thinks because he's already told us. Nothing else matters. Procedure and rules don't matter, because they can (and will) be changed to achieve the desired outcome. Sidney will get what he wants because he controls the game. Since the only organization that can stop him is SCOTUS, his plan is to take this case and then sit on it indefinitely. Nothing will happen until either the political makeup of SCOTUS changes, or the makeup of the 9th Circuit changes. The standoff will last for years, or decades if necessary.

"But that's not fair" you say! Well, you're right, it's not. But that's the whole idea behind a fixed game, it's not fair.

This is why the most likely chance of there being any action on this issue in a reasonable time frame lies with a negative ruling in Bianchi v Frosh, which takes us back to SCOTUS.

You do understand that Sidney Thomas has been retired for a while now - Right?

[Chewy65]

From a list of the rules for calling an en banc (2017)
IDK if these have been changed.

Judges on the 9th Circuit.
51 total both (D). & (R)




Senior judges.
14 (D). 9 (R)


Active Judges
15 (D) 13 (R)
the Chief Judge is 1 of the 15 (D)


Of the Active Judges.

If we peel off one (D) it's a tie.
If we peel off two, it'd a win.

That assumes that the Dems don't peel off any Rinos

[ar15barrels]

When Judge Benitez releases the assault weapons ban ruling, I wonder whether the Ninth Circuit will pull the exact same procedural stunt as the en banc panel did in Duncan v. Bonta, or will they actually "allow" a 3-judge panel to take the case. Strategically, I hope the Ninth Circuit behaves as egregiously as possible and takes all three major Second Amendment challenges directly en banc.

I think the composition of the motions panel will determine that.
Though they may not want to even risk the resulting random 3 judge merits panel either and will figure out how to someone flex their power with a pre-determined anti-gun panel.

The sticking point is that there is no en-banc comeback since the en-banc panel never heard Miller before.
It believe it was held at the 3 judge merits panel last time and it might have been an anti-gun 3 judge panel that will will try to get back together to gaurantee a result and take the case as a comeback case.

[ar15barrels]

Why should that matter?

There would be no standing for an en-banc panel to snatch the case.
The 7-4 en-banc panel in Duncan had previously heard Duncan so they claimed standing to claw the case back when it came back.
There's no en-banc standing for a comeback of Miller to a known en-banc panel because there's never need a miller en-banc panel.

[Sgt Raven]

You do understand that Sidney Thomas has been retired for a while now - Right?

[AlmostHeaven]

People keep citing rules and procedures, as if such concepts matter when the Ninth Circuit has just demonstrated its collective disdain and contempt for the institutional guardrails last week! If the full court wishes, they absolutely could write an entirely new rule to take Miller v. Bonta en banc.