Ninth Circuit Judge Lawrenece VanDyke
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…[9th Circuit Judge Lawrence] VanDyke concluded in the majority opinion for a three-judge panel, Ventura County’s policy [closing gun stores during the pandemic] plainly did not pass muster under “strict scrutiny,” which requires that a law be “narrowly tailored” to further a “compelling government interest.” Nor could the policy survive the less demanding “intermediate scrutiny,” which requires a “reasonable fit” between a law and an “important” or “substantial” government goal.

The two other panel members agreed with VanDyke that Ventura County’s suspension of Second Amendment rights was unconstitutional. But VanDyke predicted that most of his colleagues on the 9th Circuit would reach a different conclusion after agreeing to review the decision.

“Our circuit has ruled on dozens of Second Amendment cases,” VanDyke noted, “and without fail has ultimately blessed every gun regulation challenged, so we shouldn’t expect anything less here.” Those decisions include several in which the 9th Circuit overruled three-judge panels on issues such as the right to bear arms in public and the right to own magazines that hold more than 10 rounds.

Since VanDyke thought it was inevitable that the 9th Circuit would eventually uphold Ventura County’s [pandemic] shutdown of gun stores and ranges, he offered a 12-page “alternative draft opinion” to help achieve that foreordained result. His satire combines excessive deference to public health powers with blithe disregard for the right to arms—tendencies that the 9th Circuit has repeatedly displayed in previous cases.

As VanDyke sees it, the 9th Circuit creates the illusion of careful consideration by using a “two-step framework” that first examines the historical scope of the Second Amendment and then settles on a standard of review. This approach somehow always leads the court to apply intermediate scrutiny in a way that amounts to a “rational basis” test, a highly deferential standard that the Supreme Court has said is inappropriate in cases dealing with specifically enumerated constitutional rights.

— Jacob Sullum in A Federal Judge’s Satirical Opinion Highlights Disrespect for the Second Amendment

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50 COMMENTS

  2. Three member appeal panels are a waste of time. The Ninth Circus overrules them every time. Pity those who think they actually got a win out of the 9th, for they are easily fooled.

    • Obviously the 9th circuit sees all Gun Owners as expendables and no counts. Almost like racists on this forum see Black Americans, etc.

      When Gun Owners fail to define Gun Control by its history of racism and genocide and deal with Gun Control zealots accordingly then Gun Owner silence provides standing for Gun Control in courts, the media, politics, etc.

      • “When Gun Owners fail to define Gun Control by its history of racism and genocide and deal with Gun Control zealots accordingly then Gun Owner silence provides standing for Gun Control in courts”

        well since gun control is a mostly boolshevik thing, and since you’re failing to define it that way, then ….

    • We are not fooled, just excited that the judges agreed with the plaintiffs. We know, as Judge Van Dyke predicts, that the Ninth Circuit will take up this case en banc in order to overrule it. But if it ends up before SCOTUS, this opinion will be there as well as a scathing critic of what is going on in this circuit, with the hope and prayer that SCOTUS will step in with a hard slap down.

    • The 9th Circuit’s former chief judge, Sidney Thomas (Clinton appointee), is infamous for manipulating the en banc process to overrule pro-2A opinions that he didn’t like. He served as chief judge from Dec. 1, 2014 – Dec. 1, 2021. The new chief judge is Mary H. Murguia, whom Clinton appointed to the U.S. District Court in 2000 and whom Obama appointed to the 9th Circuit in 2011. She is, unfortunately, likely to continue her predecessor’s en banc shenanigans.

      As Judge VanDyke pointed out, since the Supreme Court decided Heller in 2008, the 9th Circuit is 50-0 when it comes to en banc decisions upholding gun control laws.

      • Mr. Daniels,

        You are either an EXTREMELY observant follower of the 9th Circus and its 2A “jurisprudence”, or (and this is my bet) a CA lawyer who actually believes in the 2A. Either way, I’d love to buy you a beer, but . . . I got the hell out of CA a while ago.

        OTOH, what did you think of Judge Benitez’ opions on the 2A? Not thrilled with his “billy club” ruling, but he’s pretty solid on the others, IMHO.

  3. In short the 9th Circus will remain the most overruled Circuit Court. I suspect they are going to get a major bitch slap from SCOTUS this summer and likely a repeat in a year or two.

    • Rusty Chains,

      Regarding your suggestion that the U.S. Supreme Court will “bitchslap” the U.S. 9th Circuit Court:

      If that means overruling some decision from the 9th Circuit, sure, that’s plausible.

      If that means actually sanctioning the Justices who keep issuing decisions which clearly violate the U.S. Constitution and judicial standards, then I don’t see that ever happening and Justices on the 9th Circuit will continue to violate us.

      • No, he doesn’t, rant7 – bears don’t have ID, and couldn’t pass a background check. If you’re going to go off the deep end (which seems to be your trajectory, of late), you can’t afford to lose hold of whatever slim hold on reality you still possess.

  5. Now if I could only get Kid Rock on CD or cassette. These courts will not follow the constitution, it’s decisions like this that ignite revolution. Just a matter of time before there is a real insurrection. Glad I don’t live anywhere near D.C.

    • Good God man, CDs and cassettes are ancient antiques. You might as well ask for on vinyl, or cuneiform tablets. Just download the MP3 to your phone like a civilized person 😉

      • I have a buddy who still carries a CD Walkman. (discman?) He’s always asking me to burn him cd’s like it was 1995. My PC hasn’t even had an optical drive in 10 years and my discs have been in boxes in the garage since 2011! LOLOL.

      • I have these music players for the same reason I have a Winchester 30/30. Sometimes old things just continue to work and don’t cost me anything more, Kind of like most my vehicles still have carburetors. They are simple and work. Just my opinion.

        • Really? Jeez, most all the carburetors I have disassembled were anything but simple. Especially Holly 4-pumpers and my favorite, a Thermoquad from my ’71 Dodge Demon 340. But on the subject of sound reproduction, I’m about to have a new flatscreen 4K installed with a sound bar, and the recommended connection between them is a high capacity HDMI cable, because Bluetooth, WiFi, or optic cable (or basic HDMI cables!) do not have the bandwidth to transmit the decoded signals required for full sound reproduction, given multiple channels and phase shifting. Hard for me to believe, but I am springing for the HDMI cable. You do you!

      • Apparently in some circles, vinyl has made something of a comeback. My sister is into LP’s. Maybe a hipster thing, though my sister is more of a pretty soccer mom yuppy than hipster. My dad (in 70s) and brother (50) have also gotten back into records lately. Weird

        I’m too busy collecting guns to collect records.

        • rant7,

          And that’s why they went BACK to it. Everyone I know with a REALLY high-end stereo system has a CD player hooked into it . . . for stuff they can’t find on vinyl. By choice? They never play CDs. As for MP3s, those are fighting words among audiophiles. MP3 is a relatively crappy, VERY “lossy” format. It cuts off highs AND lows, compresses dynamic range, drops a lot of “nuance”, and is not a particularly faithful reproduction.

          MP3 has one (and ONLY one) virtue – you can carry a bunch of crappy versions of your favorite tunes around on your iPhone. Not a fan of CD reproductions (too sterile), but at least you get the whole music. Vinyl or live is the way to go.

        • Geoff,

          Now we’re getting into the DEEP weeds. Yes, technically, digital technology has the ability to faithfully reproduce sounds, to the same extent as analog recording technology (just like, THEORETICALLY, digital photography has the ability to faithfully reproduce any scene that can be captured on film). Aficionados or either high-end audio, or art photography would disagree.

          I would happily introduce you to my friend, who puts together and installs VERY high-end stereo systems for a living, except . . . he’s still in KKKalifornia, and I got the hell out of that s***hole a while ago.

          I’m not a high-end audiophile (spent too much of my damn money on guns to leave enough to pursue high-end audio), but I know a bunch through him. I can hear the difference, and it is real, but . . . it’s for guys who have LOTS of money to pursue the difference. Like, for instance, the audio version of guys who wants to try precision shooting, and immediately goes out and buys an Accuracy International AXMC 338. If you can afford it, and you enjoy it, indulge yourself. I spend enough money on my hobby that I have NO business dissing someone else’s!!!

      • Crimson,

        For those of us who are audio snobs, there has been at least a decade-long movement to go BACK to vinyl. Some are even going back to vacuum-tube amps (the best ones are made by the Russians – because they never were able to get their s*** together on solid-state, they took vacuum-tube technology further than we did). If you’ve got a spare couple hundred grand, I have a buddy that can build you a stereo system that will blow your mind.

        An mp3 on a smart phone makes a great song sound like the dog barfed. Find a friend with a GOOD stereo and a turntable. Download John Mayall’s “Room to Move” onto your phone. Listen to it. Now fire up the stereo and put the same cut on the turntable.

        THAT’S why my buddy gets anywhere from $50K to $250K to build a stereo system.

        • avatar Geoff "A day without an apparently brain-damaged mentally-ill demented troll is like a day of warm sunshine" PR

          “(the best ones are made by the Russians – because they never were able to get their s*** together on solid-state, they took vacuum-tube technology further than we did).”

          That wasn’t really the reason they stuck with tubes, tube electronics are highly resilient to the voltage spikes of a nuclear weapon detonation. It was a military decision, primarily.

          There are some American companies who have located some of the old, original tube production equipment, but the folks who knew how to use it are in their 80s or older. Efforts are being made to manufacture new tubes in America…

        • Geoff,

          I’m sure that the Russians ALSO considered the EMP resistance of vacuum-tube technology, and that MAY have been their public excuse, but the reality is that everyone involved in the defense industry knows, and has known for years, that Russian “high-tech” is shite. Their solid state tech for defense purposes is laughably outdated and underperforming . . . sorta like dacian the stupid.

        • i don’t think you can beat 1/2 speed mastered lp’s like mobile fidelity.
          much of what i pursue was released on 78’s. they are fragile so extra rare to have survived, and priced accordingly. another issue is many lp’s were tossed around at parties so… cheap but played out (j.brown on king f’rinstance). with digital compilation i can get thirty or more two to three minute juke joint tunes (even 45’s in a wurlitzer were only ever a few minutes) for 15ducks or less, used, as opposed to that much or much more per ea.

  6. The 9th doesn’t even pretend to be concerned about justice. They have an agenda and are open and proud of it. The on going violation of civil and human rights. They are no different than the Klan.

    Justice will begin to be restored when the 9th is in chains and breaking rocks.

    • Oooh that pesky Constitution….
      The 9th clearly doesn’t much care what SCOTUS may or may not say. They continue to flaunt their oath regardless of law and will continue to do so unless there is a success impeachment demand from the people.
      Like that will ever happen…

  7. Does the 9th see themselves as a decision maker or a panel that can temporarily stall Constitutional review for a couple of years so their buds can do what they want? I know Washington state loves to make laws that take many years to be reviewed.

    • Rand,

      KKKalifornia, Oregon, Washington and Hawaii all pass laws that they know are unconstitutional, KNOW that they will get knocked down by SCOTUS (after five years, if you’re lucky) . . . and then they will play the same game they have with Heller, by PRETENDING to follow it, and in actuality completely ignoring it. Until SCOTUS finally slaps them down hard enough. How many cycles does that take? I dunno; they’re STILL not following Heller.

    • Thanks for the link, Mark. Very good read (although in the document I read, it was formatted such that his concurrence began on p. 46).

      From Kleinfeld’s concurrence:

      “While strict scrutiny may be appropriate, as the majority concludes, nevertheless we should not make more law than is necessary to decide the case.”

      That was good for a guffaw.

      From Van Dyke’s footnotes in his concurrence:

      “1 We really like this “not unlimited” language from Heller, and cite it often and enthusiastically…[super long list of citations]…One might conclude it is the driving force in our circuit’s Second Amendment jurisprudence.”

      and again:

      “5 ‘Severe’ is a very strong word, and a real workhorse when italicized.”

      and yet again:

      “12 Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate
      scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.”

      Priceless. Well written, Your Honor.

    • Simultaneously find all existing state law in CA, OR, and WA to be unconstitutional, and direct all 3 to start over with new legislators.

  11. Leftists/Dims/Dems/socialists/communists have no sense of either humor or irony; only a sense that they alone have moral authority for power. The en banc mob that will hear the appeal likely already have a boilerplate ruling available to overturn the 3 judge panel.

  12. I see no difference between the judges on the 9th circuit and the judges on the Supreme Court in 1856. Back then the court decided that black people, born and raised here, had no rights in the United States. The ninth circuit is just as racist as the Supreme Court was 170 years ago. And the Dred Scott vs Maria Sanford case was about gun control.
    California has its own racist history with gun control.

    “The Racist Origins of California’s Concealed Weapon Permit Law”

    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2599851

  13. @Geoff “A day without an apparently brain-damaged mentally-ill demented troll is like a day of warm sunshine” PR
    “There are some American companies who have located some of the old, original tube production equipment, but the folks who knew how to use it are in their 80s or older. ”

    Still sometimes miss going to the local 7-11 to test the tubes from our TV , and short wave radio.

    • that was fun (walgreens, though).
      i’m only in el34, el84 deep, with push pull config.
      i’ve friends building single ended triode stuff. one just for the novelty, runs a mig fighter tube (quite large).
      i regret not grabbing the tubes from the jefferson substation kennitron. for testing 69kv, about two feet tall and half a foot in diameter. doubt they would translate to audio, but they were neat.

  14. A three judge panel is just a stall in the 9th. The time it takes the panel to hear the rule is just dead time because the court will demand full court review delaying the decision a year then the Supremes won’t cert and we start the cycle over again.

      • Nah, Larry, it isn’t even that. Remember the unofficial motto of the Leftist/fascists: “The end justifies the means.” They will do ANYTHING to accomplish their goal of instituting socialist fascism, and grabbing power. We’re simply an impediment to their goal.

        Eventually, we’re going to have to disabuse them of that notion . . . probably by force, although I hate the idea.

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