Heller was decided in 2008. Two years later, McDonald incorporated the Second Amendment. In the past thirteen years, the Second Amendment has had barely any impact on federal law. Invariably, lower courts have upheld all manner of gun control regulations, and the Supreme Court has denied review. Leading the charge has been the Ninth Circuit. The government is undefeated in Second Amendment cases, amassing a record of 50-0. And whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc. These numbers come, of course, from Judge VanDyke's dissent in Duncan v. Bonta. You see, Judge VanDyke and his colleagues on the Ninth Circuit are frustrated. In case, after case, after case, they are on the losing end of decisions. I imagine Judges Higginson and Costa from the Fifth Circuit can relate. They should start a support group--Dissenters Anonymous.
Now, VanDyke has tried something different. He actually managed to write a unanimous panel opinion declaring unconstitutional restrictions on firearms. Ventura County prohibited the sale of firearms for 48-days during the start of the pandemic, even as other commercial ventures remained open. This victory will be short-lived. We all know what is going to happen next. The Ninth Circuit, with a few more Biden nominees aboard, will en banc this case faster than you can say Reinhardt! Maybe in a year or so, when we are up to the Omega variant, the Ninth Circuit will drop a 200-page opinion that upholds the gun regulations under intermediate scrutiny. Then, one year later, the Supreme Court will deny certiorari over harsh dissents from the conservatives.
Frankly, this entire process is a waste of time. So, Judge VanDyke tried something new--write an "alternative" draft en banc opinion--or a fauxpinion, if you will--that reverses his panel opinion.
