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

[rplaw]

I thought there were supposed to be 3 written briefs in November, starting with the state's on 11/9. What is the difference with the oral arguments?

3 briefs in Nov, hearing on Dec 8. What's confusing about that? Other than the speed it's happening, it's following procedure.

[7.62mm_fmj]

IANAL but maybe orals come first and the filed briefs are used to add details, oppose items brought up by the other side etc.

I believe the three-judge panel will review the opening and answering briefs received in November. Then at the oral arguments in December, the judges will have specific questions for each of the parties based on those briefs plus any other legal questions or concerns they have. Ideally, no continuance will be needed (but perhaps amicus briefs or additional authority briefs will be filed in the interim), and then the panel will issue their opinion, maybe four months later or so (like in Duncan).

[rplaw]

Oh ****, is the 9th circuit following all it's own rules and orders now?
When did this start?

The 9th is following it's own rules. The local rule allowing the process in Duncan was followed. Implicit exemptions within that rule allowed other rules to be suspended for that matter to be decided.

These are the rules and they were followed. That we disagree with the outcome doesn't mean the process wasn't being obedient to the rules which led to that outcome. That the en banc panel disobeyed SCOTUS doesn't allow other courts to also do so.

The rules require that the lower courts obey the decision of the higher courts and en banc panels in their circuits. They have to do that even when the decisions of the higher courts/en banc panels fail to adhere to higher court (ie SCOTUS) decisions because; A) the lower courts are bound to obey the decisions of their circuit courts/en banc panels, and; B) the en banc decision in this case is newer precedent than SCOTUS decisions and newest precedent controls. Conflicts in precedent are to be decided higher up the food chain.

So your argument that the 9th isn't following its own rules isn't really true. What you're really trying to say is that you don't like the 9th's en banc decision but really don't have any way of expressing that dislike except to say the 9th circuit routinely breaks their own rules. Which isn't true. What the 9th did/does is preemptively shape the rules so that the outcome is what the court desires.

Which is the case in all levels of litigation including trial courts which shape the outcome by limiting what evidence is allowed and what isn't.

[SpudmanWP]

3 briefs in Nov, hearing on Dec 8. What's confusing about that? Other than the speed it's happening, it's following procedure.

I believe the Oral arguments in December are for the Stay and not for the Appeal itself.

Here are the Stay filing dates.

The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1).

Here are the dates for the Appeal filings.

Monday, October 30, 2023 Appellants Mediation Questionnaire due
Thursday, November 2, 2023 Appellants Appeal Transcript Order Due
Monday, December 4, 2023 Appellants Appeal Transcript Due
Thursday, January 11, 2024 Appellants Appeal Opening Brief Due
Monday, February 12, 2024 Appellees Appeal Answering Brief Due

[7.62mm_fmj]

I believe the Oral arguments in December are for the Stay and not for the Appeal itself.

I don't see where the court order specified that the November briefs were for dealing with the administrative stay vs. the actual appeal. It just says "opening brief," "answering brief," and "reply brief."

Also haven't seen any document from appellees-plaintiffs asking to vacate the administrative stay. Any links?

Also, where did the additional dates for the filings come from? I'd like to see the latest information.

[Bhobbs]

SCOTUS did take too long between Heller and Bruen and we'll have to see how they handle the first wave of Post-Bruen "response" bills to definitively say what we can expect going forward. As far as lower courts, they are swinging pro-2A for the most part so they get it. One need not look any further than Grewsome's proposed amendment to understand that he sees the writing on the wall.

We saw how SCOTUS responded to the anti Bruen bills when they denied the emergency appeals. SCOTUS learned nothing from Heller. The circuits are still in rebellion. The anti gun states are gaining ground. Bruen was supposed to ensure our right to bear arms but SB2 and similar bills are gutting concealed carry.

Newsom is setting up a presidential run. His amendment proposal isn?t in response to gun victories because California isn?t losing.

[morthrane]

The 9th is following it's own rules. The local rule allowing the process in Duncan was followed.

The dissent in the most recent Duncan action didn't seem like the judge believed that.

[1911su16b870]

Maybe just me, but I thought the NYSPRA v Bruen Decision did away with "interest balancing".

Plaintiff's council must be prepared to thwart that faulty application of law (and others raised by appellants) in briefs and the appeal hearing. Understanding also that the 3 judge panel controls the tempo.

20-843 page 17 If the last decade of Second Amendment litigation has
taught this Court anything, it is that federal courts tasked
with making such difficult empirical judgments regarding
firearm regulations under the banner of "intermediate scrutiny" often defer to the determinations of legislatures. But
while that judicial deference to legislative interest balancing is understandable "and, elsewhere, appropriate" it is
not deference that the Constitution demands here. The Second Amendment "is the very product of an interest balancing by the people" and it "surely elevates above all other
interests the right of law-abiding, responsible citizens to
use arms" for self-defense. Heller, 554 U. S., at 635. It is
this balance?struck by the traditions of the American people?that demands our unqualified deference.

Footnote 7 page 26 This does not mean that courts may engage in independent means end scrutiny under the guise of an analogical inquiry. Again, the Second
Amendment is the "product of an interest balancing by the people," not
the evolving product of federal judges.

Page 107 The majority further made clear that its rejection of freestanding interest balancing did not extend to traditional
forms of means-end scrutiny. It said: "We know of no other
enumerated constitutional right whose core protection has
been subjected to a freestanding "interest-balancing" approach."

[SpudmanWP]

I don't see where the court order specified that the November briefs were for dealing with the administrative stay vs. the actual appeal. It just says "opening brief," "answering brief," and "reply brief."

Also haven't seen any document from appellees-plaintiffs asking to vacate the administrative stay. Any links?

Also, where did the additional dates for the filings come from? I'd like to see the latest information.

Here is the order granting the Stay.

In granting an administrative stay, we do not intend to constrain the merits panel?s consideration of the merits of this appeal in any way. The administrative stay shall remain in effect until the merits panel decides the appeal or issues an order lifting the stay. We sua sponte expedite this appeal. The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1).

The Clerk will place this appeal on the calendar for December 2023. See 9th Cir. Gen. Ord. 3.3(g).

Given that the last sentence directs the clerk to add oral arguments for December and that the original filing dates were issued 5 days before the order, it's safe to say that this is the new "expedited" schedule. We won't know "for sure" until the new 9th Circuit 3-Judge CourtListener page is created.

Order of events:
Oct 19th - Notice of Intent to Appeal
Oct 23rd - Appeal Filed
Oct 23rd - Schedule set (1/11/2024 and 2/12/2024)
Oct 28th - Motion to Stay granted with Expedited schedule set (Nov 9th, 22nd, and 29th of 2023)


Overall Source, the Courtlistener page for the District Court:

https://www.courtlistener.com/docket/16069141/miller-v-becerra/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

[Elgatodeacero]

The November briefing and the December oral argument is for the main appeal.

The stay issue has been decided.

[SpudmanWP]

The Merits panel can lift it if they want to.

The administrative stay shall remain in effect until the merits panel decides the appeal or issues an order lifting the stay.

[RickD427]

The Motions panel can lift it if they want to.

Methinks you're confusing the Motions Panel with the Merits Panel (the threesome that will decide the appeal).

[rplaw]

The dissent in the most recent Duncan action didn't seem like the judge believed that.

Re-read the decision, the en banc panel dealt with the rules issue as part of the decision. They had to, otherwise they couldn't prove they had jurisdiction.

What they said was that they had the ability to hear the matter as a "come back case" because there was a local rule authorizing it. That rule required the original panel to sit in the matter. Further, the rules also allow that when a judge isn't available any longer, the court can appoint a new judge in his place.

Basically, the court followed the rules which existed prior to the en banc panel grabbing the case.

The dissent argued that they didn't follow the rules because of the way the court decided to reconstitute the en banc instead of letting the regular appellate panel hear the matter first. That's not unusual because justices dissent from majority decisions all the time. I don't agree with the en banc panel's decision, or the way they went about it, but the rules allow for it to be done that way.

This is the same as the rule in basketball which allows for someone to "step into" another player who is airborne without touching them so that when that airborne player comes down they collide with the person who "stepped into" them and create a foul by the airborne player.

It's not a bad call when the whistle blows because the rules that allow this to happen. You can complain about the way people do things (as in an "that's not the intent or spirit of the law or game" type of argument) but when the rules allow that to happen there's no fault when people, or the courts, act according to the rules.

[rplaw]

Methinks you're confusing the Motions Panel with the Merits Panel (the threesome that will decide the appeal).

I think everyone is confused because we're in uncharted territory on a lot of what's going on and it's swapping around really fast with similar nomenclature.

The motions panel did say that the merits panel could lift the stay if they chose to. I think what that was intended to mean was that the motions panel wasn't imposing a full appeals process stay all the way up to and through one of the parties requesting SCOTUS to grant cert, but the stay is only temporary until the merits panel decides the merits or if the merits panel decides to revisit the stay as part of the briefing and pending their final decision.

So the merits panel could request briefs on continuing the stay as well as briefs on the merits of the case if they wanted to. They won't, but theoretically they could and then they could decide whether to allow the administrative stay to continue at or after oral arguments. They won't because this would be a giant telegraph signal on the way the merits panel intends to rule on the merits of the case.

[ar15barrels]

You have that reversed. QI gets set aside all the time where there is clear intent to violate civil rights.

Only when the rights are important to the justices of the specific court.
Do not expect a court to treat all the civil rights in the same manner.