Second Amendment attorney, author, and blogger Mark Smith just published an analysis of the questions raised by how the 9th Circuit is handling the emergency stay in Duncan v. Bonta. I discussed the nine page ruling in my previous post and the concerns of Judges Butamay and VanDyke. Smith, however, goes right to the rules for how the 9th Circuit is supposed to handle emergency motions like the one from California. The 9th Circuit has two panels comprised of three judges each who rotate on a monthly basis to handle these situations. Until just recently, the names of these judges would have been published on the court’s website.
Smith goes into much more detail in the 12 minute video below. He raises some very good questions and it would be very interesting to know just who were the judges that should have been assigned to this case.
The Bureau of Alcohol, Tobacco, Firearms, and Explosives was successful in getting an administrative stay in VanDerStok v. Garland from the Supreme Court. Judge Reed O’Connor had granted a nationwide injunction against the implementation of the ATF’s frame or receiver rule. He had determined it was in “excess of their statutory jurisdiction”.
As might be expected, ATF and the Department of Justice appealed to the 5th Circuit Court of Appeals which refused to grant a stay of Judge O’Connor’s order. The 5th Circuit said the ATF had not “demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay.” The 5th Circuit still will be hearing ATF’s appeal of Judge O’Connor’s final order.
Yesterday, the ATF and DOJ filed an emergency appeal to the Supreme Court to receive a stay while the case is under appeal. This would mean the Final Rule would still remain in effect while it was being appealed.
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the June 30, 2023 order and July 5, 2023 final judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed until 5 p.m. (EDT) on Friday, August 4, 2023. It is further ordered that any response to the application be filed on or before Wednesday, August 2, 2023, by 5 p.m. (EDT)
Well, crap!
I am sure the attorneys for the Firearms Policy Coalition as well as DOJ are working hard to craft their responses as I write.
UPDATE: Attorney and law professor Mark Smith of The Four Boxes Diner has an explanation of what happened yesterday. The administrative stay was requested by the Solicitor General and the SCOTUS usually grants these without question. Bottom line is that we shouldn’t panic.
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