On Friday, April 1, 2022, America’s Future joined 11 amici nonprofit and educational organizations to submit an Amicus brief to the Supreme Court of the United States supporting the position of the Petitioners in their fight to secure the Second Amendment – citizens right to bear arms. In the case, Duncan, et al. v. Rob Bonta, in His Official Capacity as Attorney General of California, No. 21-1194 (2022), Petitioner Virginia Duncan along with similarly situated plaintiffs sued California arguing California Penal Code § 32310, as amended by Ca. Senate Bill 1446 along with Proposition 63 (2016), the combination of which served to prohibit Californian’s possession of large-capacity magazines, is an unconstitutional violation of the Second Amendment right to bear arms.
After Proposition 63 was approved, but prior to its effective date, Plaintiffs sought a preliminary injunction that was granted and later upheld by an appellate court. The federal district court judge presiding over the merits of the case granted the plaintiffs motion for summary judgement, essentially handing the Plaintiffs a “win.” On appeal, a panel of Ninth Circuit judges affirmed the lower court’s decision. At this point, the state of California requested the Ninth Circuit hear the case en banc, meaning all Ninth Circuit judges participate in a review of the Ninth Circuit panel decision. An en banc review was conducted and the Ninth Circuit vacated the decision of the Ninth Circuit panel which resulted in the reversal of the district court summary judgment ruling; keeping this litigation moving forward in the system.
The dissenting opinion in connection with the Ninth Circuit’s en banc decision, authored by Judge Bumatay, shined a light on the unfortunate reality that politics too often plays a part in full Circuit rulings, stating, “[i]n reality, this tiers-of-scrutiny approach functions as nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones.” (Bumatay, J., dissenting)
Central to the Petitioners position is that they are entitled under “possess for lawful purposes magazines that hold more than 10 rounds” by the plain text of the Second Amendment. Additionally, Petitioners raise the landmark Second Amendment 2008 Supreme Court decision District of Columbia v Heller, 554 US 570 (2008) and its plain holding that states in part, “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The late Justice, Antonin Scalia, writing for the majority in Heller reminded us that “the inherent right of self-defense has been central to the Second Amendment right.” Even more telling, Justice Scalia warned against the use of “judge empowering interest-balancing inquir[ies]” which is precisely what the Ninth Circuit en banc panel improperly engaged in to issue their patently erroneous decision.
Essentially, no fundamental right guaranteed to “We the People” should be disturbed or impaired through some sort of judicial activism seeking to create a “balancing of interests” tests as though the import of a fundamental right can be diminished – that would be too slippery of a slope and would encourage the Judiciary to engage in the type of political nonsense our Founding Fathers feared and warned against.
Instead, and as Heller demands and as we reiterated in our Amicus brief filed in this case, “any court examining a law prohibiting “arms” need ask only whether the banned item is (1) commonly used, (2) by law-abiding citizens, (3) for lawful purposes, including for self-defense or defense of “hearth and home.” If so, then the banned item is categorically protected under the Second Amendment and no further analysis is needed.
America’s Future along with the other named amici, posit that the United States Supreme Court should issue cert in this case, vacate the en banc panel decision and restore the district court’s ruling upholding the Second Amendment fundamental right to bear arms, unabridged.
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