This does not bode well. Do you think the SCOTUS will take this up if appealed? They had remanded it back down thinking that the Ninth would follow the Bruen ruling but it seems that many courts are defying the outcome of that decision, openly and blatantly.
I can’t say I am surprised, but the way they did it is, uh, irregular. As I understand, there were a number of ways this could have gone. It could have gone to the same 3 judge panel who heard the original appeal. It could also have gone to a new 3 judge panel. Instead, the original en banc panel who overturned the Benitez ruling last time snatched the appeal back as a come back case. Two of the 9th Circuit judges strenuously protested in writing. I think what is shows is the desperation of the gun grabbing activists on the 9th Circuit. From the analysis I have heard, they will drag out the case and we may not get a decision on the merits for a year. I have wondered if the Duncan plaintiffs should file an emergency motion to SCOTUS, however, they have not favored taking cases in an interlocutory position, turning down several such appeals in other 2A cases. I don’t know what, if any harm, it would do to try.
This is really a gun ban case. Magazines are considered firearms because they are necessary for the functioning of the gun. For a semi-auto, you must have an ammunition feeding device as much as a trigger and barrel. As a gun ban case, I think the “in common use” test from Heller is the appropriate way to approach Duncan.
SCOTUS already has one 2A case on the docket in the current term in Rahimi.
I would think the Court will have to address the blatant disregard of Bruen and Heller by the inferior courts. That said, I don’t know if they will accept other 2A cases or use Rahimi to correct the inferior courts, but Rahimi is really a different type of caes. Given that Duncan has already been to the Supreme Court, cert was accepted and they GVR’d the case, I can’t imagine they will be too thrilled to see it coming back again from the 9th Circuit.