FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DUY T. MAI, No. 18-36071 Plaintiff-Appellant, D.C. No. v. 2:17-cv-00561- RAJ UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; BUREAU OF ALCOHOL, ORDER TOBACCO, FIREARMS, AND EXPLOSIVES; FEDERAL BUREAU OF INVESTIGATION; WILLIAM P. BARR, Attorney General; CHRISTOPHER A. WRAY, as Director of the Federal Bureau of Investigation; REGINA LOMBARDO, as Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants-Appellees. Filed September 10, 2020 Before: Susan P. Graber and Ronald M. Gould, Circuit Judges, and David A. Ezra, * District Judge. * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2 MAI V. UNITED STATES Order; Dissent by Judge Collins; Dissent by Judge Bumatay; Dissent by Judge VanDyke SUMMARY ** Second Amendment The panel denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc. In the underlying appeal, the panel affirmed the district court’s dismissal of a 42 U.S.C. § 1983 complaint containing an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(4), which prohibits plaintiff from possessing firearms due to his involuntary commitment in 1999 to a mental institution for more than nine months after a Washington state court found plaintiff to be both mentally ill and dangerous. The panel concluded that Section 922(g)(4)’s continued application to plaintiff did not violate the Second Amendment. Dissenting from the denial of rehearing en banc, Judge Collins stated that the panel’s application of intermediate scrutiny here was seriously flawed and created a direct split with the Sixth Circuit. That alone was enough to warrant en banc review, and Judge Collins therefore joined Part IV.B of Judge Bumatay’s dissent from the denial of rehearing en banc. Moreover, Judge Collins stated that he had substantial doubt that the framework of rules that the court uses to ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MAI V. UNITED STATES 3 analyze Second Amendment claims properly construes the controlling principles set forth in District of Columbia v. Heller, 554 U.S. 570 (2008). 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 ...
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