(Feature Image is Raymond M. DiGuiseppe, who argued the case before the Ninth Circuit merits panel)
This was a big case with all the big names involved. We had Chuck Michel and Anna Barvir from Michel & Associates PC. If there is a Second Amendment case happening in California, they are likely to be there. The NRA was there. Erin Murphy, Paul Clement, Matthew Rowen, and Nicholas Gallagher from Clement & Murphy. You should know their names, think Bruen.
Regardless, Raymond is the one that argued and ran this case.
This was a unanimous opinion by all three judges. This is great. It is a win for The People. The 1 gun per 30 days is currently enjoined. The people of The People’s Republic of California have one of the rights the rest of the citizens of these United States enjoy.
Is this judgment going to stand? I do not believe so. The People have had a few wins in the district courts of California, and we have had a few wins with merits panels of the Ninth Circuit. In every case, the Ninth Circuit has then agreed to hear the case en banc and reversed the merits panel.
According to one of the judges that sits on the Ninth Circuit, the Ninth Circuit is over 150 to 0 against The People in Second Amendment cases.
History
In 1999, the state of California enacted a one-gun-a-month law. The law banned the purchase of more than one “concealable handgun” per 30-day period. In 2019, the law was extended to “handgun, semiautomatic centerfire rifle, completed frame or receiver, or firearm precursor part”.
You just have to love that made up term “firearm precursor part”. Does that mean a billet of 6061? Does it mean a raw forging of aluminum? Does it mean an 80% lower? Yeah, when does it stop being a pipe from The Home Depot, and it becomes a firearm precursor part?
The plaintiffs in the district case became Appellees at the circuit level are the good guys. They wanted to buy more than one firearm per month. The case is a facial challenge to the law.
The judges looked at this case “de novo”, or as if it were new. Because the case was a facial challenge, they only considered the text of the statute. It is the burden of the plaintiffs (good guys) to establish that no set of circumstances exists under which the law would be valid.
The Analysis
—Nguyen, et al. v. Bonta, et al., No. 24-2036, slip op. at 7 (9th Cir.)
This is correctly stated and a good summary. It is at this point where most of the rogue, inferior, courts go off the rails.
—id. at 8–9
Teixeira was decided in 2017, against The People. Yet, it is quoted multiple times. Ezell v City of Chicago, in front of the Seventh Circuit court in 2011, was also a loss for The People. Both cases preceded Bruin and as such need to be reanalyzed in light of the Bruen analysis. In other words, they are likely bad law.
They did not cite to Minneapolis Star & Tribune C v. Minnesota. This is because that case is a Supreme Court opinion and was a much stronger indictment for not messing with The People’s rights via restricting ancillary actions. In that case, the state (bad guys) put a tax on the ink purchased by large newspapers.
The phrase “meaningful constraints” is where this opinion starts to go sideways. Because they are quoting case law from before Bruen they are sneaking in “interest balancing”. The state does not get to decide what is or is not a “meaningful constraint.”
They don’t get to because they always extend it to far. Is a $200 tax on a firearm accessory that much of a constraint? Is a requirement for government permission to purchase a firearm accessory? Or to ask for permission to move it across state lines?
According to the federal government, it is not a meaningful constraint. Nor does the state of California think it is a meaningful constraint.
This makes the statement erroneous. This is why I call foul on citing to bad case law to support current cases.
Making a Summary Because I’m tired
California argued that the Second Amendment doesn’t guarantee a right to possess multiple firearms, and even if it did, restricting the frequency of firearm purchases is not a meaningful constraint.
This panel swatted that one down. They point out that if the state was right and because things apart from firearms are arms. The state could argue that if a person owned a knife could be banned from purchasing a firearm.
They get the plain text section right.
Unfortunately, only in part. They claim that delays that serve presumptively valid purposes are constitutional but that in this particular case, the law purpose of the delay is the delay.
They found that there is no history or tradition of meter the exercise of a constitutional right.
Of course, the infringers use the “nuanced approach” argument. That phrase now makes me sick. It tells me the bad guys are about to lie through their teeth and expect me to smile.
Here the court reaches the correct conclusion but for the wrong reasons. This can be bad for the Second Amendment rights of the People.
The nuanced approach only applies to things that are not bans. This is a ban, a metering of rights. In Heller, the Supreme Court found that there was no history or tradition to support firearm bans. This means that a one-per-month ban is unconstitutional, period.
The merits panel then spends a half dozen pages of electrons to find other reasons to find no tradition.
Conclusion
It is a win. I’ll take it.
It is not good case law. They did not create a general understanding of “Plain text” and they did not do a correct history and tradition analysis.
This suggests, to me, that this opinion will be cited by the anti-gun people in the future, in negative ways.
Regardless, this opinion will not stand. It will get overturned by the en banc panel. The Supreme Court is unlikely to grant cert if they request cert.
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