By: Steven J. Mandel
For decades, the Ninth Circuit Court of Appeals has been and still is one of the most liberal courts in the nation and has continually put their political ideologies before the Constitution and federal law.
On Feb 8., the court ruled the “Executive Order: Protecting the Nation from Foreign Terrorist Entry into The United States” unconstitutional and against federal law, therefore issuing a temporary restraining order. However, this decision contradicts 8 U.S. Code §1182 (F) “Suspension of entry or imposition of restrictions by President,” which states:
“Whenever the President finds the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
As evident above, President Donald Trump’s executive order is within his powers, is constitutional and is in accordance with federal law.
This decision was not unexpected. Currently, 25 active judges comprise the Ninth Circuit. Eighteen are Democratic appointees and seven are Republican appointees. Therefore, 72 percent of the court leans liberal and only 28 percent leans conservative. This imbalance has led many of its decisions to be overturned by the U.S. Supreme Court. Based on numbers collected and reported by SCOTUSblog, from 2006 to 2015, the Supreme Court on average overturned 77.8 percent of the Ninth Circuit Court’s decisions, with the highest overturn rate at 92 percent in 2013 and the lowest at 60 percent in 2009.
A current case pending review by the Supreme Court is Peruta v. City of San Diego. In this case, the plaintiff(s) sought to carry a concealed firearm for self-defense, but the City of San Diego denied their applications for a permit, claiming they did not show “good cause” to carry. In response, the plaintiff(s) claimed the city’s definition of “good cause” violates their Second Amendment right.
The Ninth Circuit ruled in favor of the city and stated “We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” This statement is a blatant disregard to the Second Amendment, which states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The United States militia, as defined by 10 U.S. Code § 311 “Militia: composition and classes,” consists of all able-bodied civilians either organized, as in military personnel, and/or unorganized, as in non-military personnel. Non-military personnel are regarded as the general public. Therefore, the Constitution and federal law grants the plaintiff(s) the right to carry a concealed firearm.
The decisions made in the two aforementioned cases are in line with liberal views on immigration, border security and gun rights. Coupled with the imbalance on bench and high overturn rate by the Supreme Court, the Ninth Circuit could be considered the most liberal court in the nation. To bring balance to courts, Republican Sens. Jeff Flake and John McCain of Arizona introduced a bill in January to carve out six states from the Ninth Circuit in order to create a new 12th Circuit. The bill is titled “Judicial Administration and Improvement Act of 2017” and can be read at congress.gov/bill/115th-congress/senate-bill/276/text.