Dissent Excoriates Ninth Circuit Refusal of en banc Rehearing of Second Amendment

Why I Am Suing The Governor of Virginia, iStock-1055138108
Dissent Excoriates Ninth Circuit Refusal of en banc Rehearing of Second Amendment iStock-1055138108

U.S.A.-(AmmoLand.com)- The recent Ninth Circuit Second Amendment case, Mai v. United States,  shows the powerful influence President Trump has had on the largest Circuit Court in the United States.

The case started in Washington State. The plaintiff, Duy T. Mai, was involuntarily committed to a mental institution for depression and suicidal impulses when he was 17 years old. A few months later, he was released and went on to become a well adjusted, productive member of society. At age 37, he wished to exercise his Second Amendment right to purchase a firearm. He was unable to do so because of the involuntary commitment when he was 17. He applied to the State of Washington for relief from the disability, which was granted.

United States federal firearms law, specifically 18 U.S.C. § 922(g)(4), forbids Mai from purchasing or possessing a firearm. Mai sued under 42 U.S.C. § 1983, claiming his Second Amendment rights were being illegally deprived.

The District Court in Washington State found that Mai did not have a case. Mai appealed to the Ninth Circuit. On 11 March, 2020, in a unanimous decision from the three-judge panel, the Ninth Circuit upheld the District Court decision.

Mai asked for an en banc review of his case. En banc reviews of Second Amendment cases seem to be routine for the Ninth Circuit, when the cases favor protecting Second Amendment rights.

This case, which had already ruled against Second Amendment protections, was, unsurprisingly, not granted an en banc review.

The surprising and positive event was eight judges dissented from the majority and believed an en banc review was called for. They dissented so strongly, they wrote and/or signed onto an extremely well argued, 29-page dissent.

The dissent is a powerful defense of the exercise of Second Amendment rights, and of Constitutional limitation of government power.  Eight judges are nearly a third of the judges on the Ninth Circuit. Seven of those eight judges were appointed by President Donald Trump. Here is an excerpt from the dissent.

Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges VanDyke, and with whom judges Ikuta, Bade, and Hunsaker join as to Part IV, and with whom Judges Bennett, Collins, and Bress join as to Part IV.B, stated that the panel’s opinion justified the disturbing deprivation of a fundamental right by ignoring the history and tradition of the Second Amendment and applying ill-suited, foreign statistical studies that had no bearing on plaintiff’s circumstances. The proper inquiry would have recognized that the lifetime ban imposed by § 922(g)(4) on plaintiff is unequivocally a complete deprivation of his core right to home gun ownership, and therefore that the law was unconstitutional. Judge Bumatay stated that the panel incorrectly identified intermediate scrutiny as the proper standard of review and then flubbed its application. By failing to correct these errors, the Court undermined its Second Amendment jurisprudence and gave an unworthy judicial imprimatur to the false premise that once mentally ill, always mentally ill. Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judge Bumatay, stated that he agreed with Judge Bumatay’s dissent from the denial of rehearing en banc and wrote separately because he believes that the panel should have reconsidered the panel’s circular logic about who lies at the core of the Second Amendment. Judge VanDyke stated that the panel’s bootstrapping, class-based approach to defining those at the “core” of the Second Amendment was unjust and antithetical to controlling case law. Judge VanDyke also stated that the court’s intermediate scrutiny jurisprudence is broken, at least as to Second Amendment claims.

All but one of the judges who actively dissented, in order to protect and defend Second Amendment rights at the Ninth Circuit, were appointed by President Donald Trump. The other judge was appointed by President George W. Bush.

     Judge       Appointed by

  • Bade         Trump appointee
  • Bumatay   Trump appointee
  • Bennet      Trump appointee
  • Bress        Trump appointee
  • Collin       Trump appointee
  • Hunsaker Trump appointee
  • Ikuta        G. W.  Bush appointee
  • VanDyke   Trump appointee

We do not know how the other three judges appointed by Donald Trump voted. We only know they did not sign on to the dissent. Judge Lee has shown excellent support for the Second Amendment in Duncan v. Beccera.  How Judges Eric Miller and Ryan D. Nelson voted, or if they were recused, is unknown.  Only active judges on the court vote on en banc decisions.  There are 29 active judges on the Ninth Circuit. Some judges are recused from voting on some cases.

The votes from the court on whether to rehear a case en banc are not made available to the public. It seems likely this vote was a close one.

If President Donald Trump is re-elected, the chances a good he could appoint another 10 judges to the Ninth Circuit, not to mention the other circuits and the Supreme Court.

Ten more Trump-appointed judges on the Ninth Circuit would almost certainly flip the circuit on Second Amendment cases, given the polar opposites of belief on how the Amendment should be treated, by Trump appointees and those appointed to the court from earlier times.

The dissent on the en banc review in Mai v. United States is an important look into how President Trump might change the Ninth Circuit in a second term.

About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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Green Mtn. Boy

The Constitution is a harsh mistress for Leftist’s,as their first duty is supposed to be the Constitution as written,Happy Constitution Day.


You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy… The Constitution has erected no such single tribunal. – Thomas Jefferson – 1820 The courts are more likely to defend totalitarian govt than liberty and we are seeing that across this country. We celebrate one pro liberty ruling Ike the 4th of July while the majority of the courts are stripping us of our rights daily…..We need to elect constitutional defending people for public office instead of police… Read more »


This guy gets it! I’ve been screaming this for years.


This one started in the corrupt courts in WashingtonState. The law in this state is clear.. WHY this man was determined to be prohibited, based on what’s in the recent press about the case, is a mystery. The WA ligislature need to wake up and change the laws to no longer punish guys like this. Youngsters who have commited serious violent felnies as minors have their records expnuge when they rech majoirty age, and can go on to own guns like the rest of us. WHY this nonsense about a kid who wss volntaruly committd by his parents when a… Read more »


It is a damning condemnation of the state of jurisprudence in America that one can tell the outcome of controversial cases by the judges’ political affiliation. Near the beginning of my decision to quit the practice of law was when a redistricting case in Indiana by statute was to be decided by the 35 judges in Marion County (where the capital Indianapolis is located). By longstanding agreement, the democrats and republicans in Marion County field exactly (and only) 35 candidates for judge each election, so that those anointed by the parties are the only ones who can become judges. So… Read more »


One of the most important factors in regards to judge appointments is that if the Democrats get control of the Senate the appointment of good judges will dramatically slow down if it doesn’t stop. With all the attention placed on the fight for the White House, few are paying attention to the Senate. Losing the Senate worries me as much as losing the Presidency. The left has come completely out from behind the curtain. They now are certain the time is right for a complete shredding of the Constitution, and judging from all the anarchy in the streets and dictatorships… Read more »


When are the courts and Justice Department going to protect all our constitutional and civil rights? Aren’t these people sworn to uphold the the US Constitution?

Dave in Fairfax

Shortly after never.
People swear all the time, politicians lie at the same time.

Last edited 2 years ago by Dave in Fairfax

yes and when they wilfully violate that oath, they commint felony perjury. Question is this: WHO will bell the cat, and prosecute any of these? Oregon citizens could not even gather engouh votes to file for the recall of their rotten governess. What’s THAT say about their folks? That SHOULD have happened right after she detailed some members of the Oregon State Police to show up with heavy caliber long range rifles and help stage a roadblock on a state highway, and instead of arresting and trying LaVoy Finicum, killling him outright. Empty hands in the air, moving out into… Read more »


I have a political solution to this politically driven decision–a Presidential pardon of Mai’s mental illness record.


And what if the State of Washington then completely ignores that Presidential Pardon, the same as they are now ignoring their own relief from the disability, which they’ve already granted?
IOWs: how is it possible to stop lawbreakers with yet more ‘laws’? The problem is, Laws are just words on paper. When rhetoric, logic, and grammar are ignored, yet more rhetoric, logic and grammar are unlikely to solve said problem. IMO.

Last edited 2 years ago by Knute

The state of Washington isn’t the problem – the Feds are. The rub is the question on the form that asks: Have you ever been…


This is a state issue,and is not a criminal matter. It is not as if he’d been convicted of a crime when17. Thus a presidential pardon is not possible. Were Rob McKenna our AtG, he’d have issued a legal opinoin, binding, declaring that since all that happened when the subject was a minor, and he’s now twenty years on from that time with a clean record, he has the right to arms. But Fergie? Not a chance. He’s prollu wringing his dirty little paws with glee that HE gets to watch a little minion suffer, could help, but has chosen… Read more »


Yeah, well that didn’t work out so good for those “insurrectionists” in ’68.


It did win them the war… so that’s something! The Tet offensive is one of histories best examples of winning all the battles, while still losing the war. The US DID lose that war. As I’m sure you are aware, Saigon is now named “Ho Chi Minh City”!


Oh, ok.


When Oaths of office, peaceful protests, litigation, voting, writing and calling doesn’t work. Only one way to STOP TYRANTS!!!


Ruth Bader Ginsburg has passed………R.I.P. look out folks…Sh^t is about to hit the fan!


I wonder how much it cost this man to buy his “rights” back ?

Few have the financial resources to fight a case like this. And thats what makes the legal system a barrier to all but the wealthy.


Tet was in 1968 Vietnam. We are now in 2020 America. Nice try; no cigar.


Tet is every year, it’s the Vietnamese new year. They used to make noise about big attacks every year up to ’68 but did nothing. In ’68 the Viet Cong actually did make a mass attack on every American base and outpost. Contrary to lying Walter Cronkite, we killed nearly all of them.


You really don’t get it, do you, Clark ?

Dave in Fairfax

He’s like that on all the sites he frequents. I’m blaming it on the meds running out.


Exactly so, Dave. His posts vary so dramatically sometimes, that I can only come up with two possibilities:
One: for whatever reason, off the meds.
Two: Two different writers sharing the same sock puppet.
I have no idea which one it might be.