By David French • National Review
Every now and then the Ninth Circuit Court of Appeals — arguably the nation’s most progressive federal circuit — can offer up a legal surprise. Yesterday, it gave us a legal shock, when a divided panel of its judges affirmed last year’s federal district-court injunction temporarily blocking enforcement of California’s confiscatory ban on so-called large-capacity magazines.
Under California law, any person who possesses a legally purchased magazine capable of holding more than ten rounds of ammunition must either remove the magazine from the state, sell it to a licensed firearm dealer, or hand it over to law enforcement. Those citizens who retained their magazines after the law went into effect risked a fine or up to one year’s imprisonment in county jail.
The district court’s 66-page opinion was a legal tour-de-force that not only dismantled California’s justifications for the ban, but also reiterated and reinforced the constitutional and historical basis for the right to keep and bear arms. As I wrote last year, this paragraph from the district-court opinion is nearly-perfect:
Justice Anthony Kennedy’s retirement is inarguably a game-changer. It will take some time and depend on who President Donald Trump picks as his replacement to see just how much.
For years now, Kennedy’s been the swing vote on a court closely divided along ideological lines. That only matters infrequently but it’s vitally important when it does, which is why conservatives are jubilant and liberals fearful. Both believe Trump’s next pick will give the court a solid majority composed of five strict constructionists, as they are sometimes called, who would alter American jurisprudence for at least a generation and probably more.
What both sides should remember is there are no guarantees. The right was in relatively the same boat in 1987 when Lewis Powell, a justice appointed by Richard Nixon, stepped down. Like Kennedy, Powell was a swing vote on the Burger Court. It was presumed the man everyone expected to replace him—former United States Solicitor General Robert Bork—would move the court to the right, cementing the victories of Reagan’s Revolution. Continue reading
Donald Trump has already left his mark on the federal judiciary through numerous selections for the bench. But he also has the opportunity to agitate for another lasting judicial reform: the breakup of the 9th U.S. Circuit Court of Appeals.
The 9th Circuit, which includes Nevada, is by far the largest of the 13 federal appellate courts, covering nine Western states and two Pacific island territories. It has 29 active judges and 20 senior jurists, dwarfing any other appeals court.
Writing in the Wall Street Journal last week, Arizona Attorney General Mark Brnovich and Ilya Shapiro of the Cato Institute note, “The 9th Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national average.”
Common sense would dictate that court be split into two or more manageable districts. But politics dominates the issue. The 9th Circuit is the nation’s most liberal appellate court, and Democrats are wary of deconsolidation. But it makes little sense to defend the status quo on political grounds if the result is a delay in the administration of justice for those involved in litigation.
Early last year, Arizona’s U.S. senators, John McCain and Jeff Flake, both Republicans, offered a proposal to spin off a new court to include Arizona, Nevada, Idaho, Montana, Washington and Alaska. The legislation was similar to a 2004 measure that passed the House but died in the upper chamber.
Congress should again review the McCain-Flake proposal. The only issue at hand should be whether the current configuration of the 9th Circuit promotes efficiency and timely justice for the residents of the Western states. The answer seems abundantly clear.