Left: U.S. Circuit Judge Patrick Bumatay hears arguments on March 5, 2020 (via YouTube screengrab). Right: U.S. District Judge Roger Benitez (via U.S. District Court for the Southern District of California).
A Donald Trump appointee had blistering words for the federal appellate court that left a California gun regulation in effect.
The full U.S. Court of Appeals for the Ninth Circuit ruled 7-4 Tuesday that California’s ban on large-capacity magazines will stay in effect pending a full appeal.
In September, George W. Bush appointee U.S. District Judge Roger Benitez ruled against California’s law, calling it an “extreme ban” on the use of “common weapons… for self-defense.” Benitez is the same judge who once likened AR-15 rifles Swiss Army Knives, writing that the weapon is “a perfect combination of home defense weapon and homeland defense equipment,” that is “Good for both home and battle.”
Benitez railed against the gun regulation, writing over 71 pages that it would unjustifiably turn a law-abiding Californian into a criminal for simply “buy[ing] and keep[ing] at her bedside a nationally popular Glock 17 (with its standard 17-round magazine)” simply because the state said that particular gun “is not well suited for home defense.”
The heart of Benitez’s ruling had been his finding that California’s law lacked a historical analogue sufficient to satisfy the Supreme Court’s Second Amendment interpretation in New York State Rifle & Pistol Association, Inc. v. Bruen, which held that a New York law requiring applicants for unrestricted conceal carry licenses show a special need for self-defense violated the Second Amendment.
California appealed and requested a stay of Benitez’s ruling, which the appellate court granted Tuesday.
On appeal, the en banc Ninth Circuit granted state Attorney General Rob Bonta’s emergency motion for a partial stay pending appeal and found that Bonta’s case was likely to succeed on the merits.
The court also found that without a stay of Benitez’s order, the state would be likely to face an immediate rush on gun sales of the particular type used in mass shootings. The relatively brief majority opinion noted that challengers to the law even admitted the likely outcome in their court filings:
California indisputably will face an influx of large-capacity magazines like those used in mass shootings in California and elsewhere. As Plaintiffs concede, “[i]n 2019, when the district court first enjoined section 32310, decades of pent-up demand unleashed and Californians bought millions of magazines over ten rounds, essentially buying the nation’s entire stock of them in less than one week.” Resp. at 10–11
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U.S. Circuit Judge Patrick J. Bumatay, a Trump appointee, penned a voluminous dissent in which he took issue with what he deemed the majority’s lack of sufficient analysis.
“If the protection of the people’s fundamental rights wasn’t such a serious matter, our court’s attitude toward the Second Amendment would be laughably absurd,” Bumatay began. “For years, this court has shot down every Second Amendment challenge to a state regulation of firearms — effectively granting a blank check for governments to restrict firearms in any way they pleased.”
The 45-year-old Harvard graduate and Federalist Society member wrote that the Bruen case was the Supreme Court’s way of showing that it had “had enough of lower courts’ disregard for the Second Amendment,” and said that in the ruling, the justices “decisively commanded” that gun restrictions should no longer be analyzed with a balancing of interests. Rather, Bumatay said, courts must instead look at the “text, history, and tradition” of the Second Amendment to assess modern firearm regulations.
Bumatay slammed the six-page majority decision as demonstrating “no serious engagement with the Second Amendment’s text,” and no attempt to draw a historical analogue. The judge recently took similar issue with the Ninth Circuit for failing to fully consider religious interests that could weigh in favor of a right to conduct conversion therapy. However, in 2021, it was Bumatay who was criticized for giving only a cursory analysis before rendering cops immune from a civil rights claim after a woman fatally overdosed in the back of their patrol car.
“All we get is a summary order, even after the Supreme Court directly ordered us to apply Bruen to this very case,” Bumatay said about Tuesday’s ruling, “The Constitution and Californians deserve better.”
Bumatay continued, chastising his fellow judges: “Three times now, the Supreme Court has warned courts not to treat the Second Amendment as a disfavored right,” and urging, “We should follow the Supreme Court’s direction.”
Bumatay dissented over 35 pages in which he faulted the court for treating the Second Amendment as an inferior right while ignoring its mandate to throw out restrictions that lack proper historical parallels and thus, trampling the rights of Californians to bear arms.
“Enough should be enough,” Bumatay concluded.
You can read the full ruling here.
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