Dissents are often important in various legal cases, not because they carry any actual force, but because they frame the potential problems with the majority’s opinion.
That’s fair enough, though far too often, people cite them as if they’re authoritative, and judge from what one particular Supreme Court justice keeps writing, that’s probably not a given.
In the Ninth Circuit, the majority found that California’s law requiring background checks for ammunition was unconstitutional. Cam covered that on Thursday, but one thing I saw that he didn’t talk about was the dissent.
Judge Jay Bybee wasn’t in agreement with his colleagues, but his dissent almost suggested his understanding was dawning.
“Because none of the historical analogues proffered by California is within the relevant time frame, or is relevantly similar to California’s ammunition background check regime, California’s ammunition background check regime does not survive scrutiny under the two-step Bruen analysis,” Ikuta wrote.
In a fiery dissent, Judge Jay Bybee said the decision failed to correctly apply the Bruen test, and that using the logic of the decision, any firearms regulation could be interpreted as a violation of the Second Amendment.
“It is difficult to imagine a regulation on the acquisition of ammunition or firearms that would not ‘meaningfully constrain’ the right to keep and bear arms under the majority’s new general applicability standard,” Bybee wrote in the dissent.
That’s kind of the point, though, isn’t it?
While there are some historic parallels that are hard to ignore, such as the laws prohibiting the carrying of a firearm while drunk, others are much more of a reach. California tried such a reach to justify the ammunition restrictions, and the Ninth Circuit wasn’t buying it.
Bybee is upset because he’d prefer history, text, and tradition be mangled so as to justify any restriction–the exact opposite of what he accused the majority of trying to do–and he clearly sees the issue. He just thinks it’s a bad thing.
Yet let’s u understand that the restrictions don’t actually inhibit criminals.
For one thing, ammunition isn’t serialized. There was never any way to enforce the law and arrest criminals who simply hadn’t been caught when they bought ammo for their buddies. It simply created a burden that negatively impacted lawful ammunition purchasers and would thus discourage lawful gun ownership.
It was never practical.
But from a post-Bruen constitutionality standpoint, I can’t imagine any analog that was remotely close to this law existing. There might be storage requirements, because a lot of gunpowder stored improperly was unsafe for everyone, but there weren’t restrictions on buying it or even how much you can have, at least that I’ve seen anywhere.
Bybee almost seems to understand that, and his issue is that they didn’t reach far enough or something. It’s inane, but then again, he wants the law to be constitutional. Inanity seems to be the norm here.
Unfortunately, it’s not, and the Ninth Circuit three-judge panel smacked the state down for this terrible regulation. Bybee can be disappointed, but there’s a reason he’s in the minority. It’s because the other two seemed to get what he saw as the problem with their reasoning.
Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.
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