Emergency Application — Steven Walker, Applicant v. United States, et al.

Supreme Court, U.S.

FILED

OCT 11 2024

S20. Z4A3G4 |_ OFFICE OF THE CLERK _|

Sn The Supreme Court of the Anited States

Steven E. Walker,

Petitioner

vs.

Robb Bonta, Attorney General of The State Of

California; Merrick Garland, Attorney General Of The

United States Of America; And DOES 1-100,

Respondents.

Application under Supreme Court Rules 10, 11 and 22, and the All

Writs Act, for Preliminary Injunction; and to Vacate Ninth Circuit’s

Indefinite Stay of the Appeal Pursuant to

Nken v. Holder, 129 S. Ct 1749 (2009),

&

United State v. Rahimi, 144 S. Ct. 1889 (2024)!

On Application for an Injunction from the

United States Court of Appeals for

The Ninth Circuit, Case No: 23-55525

This Case Arises Under The Second Amendment

Steven E. Walker

6503 Roxy Lane

San Diego, California 92115

(858) 789-0774

waverider.ca69@yahoo.com

In Pro Se

1 This Pro se motion must be liberally construed. No technical

forms of pleading or motions are required. Swierkiewicz v Sorema NA,

534 U.S. 506, 508-514 & n. 1 (2002); Estelle v Gamble, 429 U.S. 97, 106

(1976).

QUESTIONS PRESENTED

1. In District of Columbia v. Heller, 554 U.S. 570, (2008), this Court

rejected the government's belief that it has a plenary power over the

individual's Second Amendment right to keep and bear arms. Jd at

598-603. The Court further recognized the prohibition of government

power over the right "is general” and that "[nJo clause in the constitution"

could give to either the state or federal government "a power to disarm

the people" as the Second Amendment is “a restraint" on both. Id. at

607. Question:

Does the unqualified constitutional prohibition established by the

Second Amendment delegate to government a free-floating power to

infringe upon the right of the people to keep and bear weapons for

purposes of security, safety, and self-defense? And,

2. In NY Pistol & Rifle Assc. v. Bruen, 597 U.S. 1, 34 (2022), this Court

held that the government must carry the burden of demonstrating

whether the evidence supporting their gun control regulation is

consistent with the principles underlying the Second Amendment, to

overcome the presumption of protected conduct. Yet, there is not an

established standard of proof. Question:

Does the constitutional burden of proof require the government to

demonstrate by clear and convincing evidence that their weapons

regulations are consistent with the principles underlying the Second

Amendment?

TABLE OF CONTENTS

I. Undisputed Factual Allegations............ccccccscsccsssceseesseeeesccessceeessseenscees 1

A. Parties to this Case ALC ...........cccsccessersssesceseesseeceestsessceesesceaceaseeaes 3

B. Allegations and Standing...........cccccccccssssccesseceesecessscceseceeesceces 3

C. Article IIT Jurisdiction of This Court............ccccccsccccsssseeceesssenee 4

1. Pro se Pleadings...........:ccccccescceesseeesescecessscessceesesecetserens 4

II. Issues Presented in This MOotion.............:cccccccseseessessseesccecesereesensveeecese 5

1. Is An Indefinite Unreasoned Administrative Stay

Appropriate Absent a Motion Requesting a Stay

a) When it Comes to Second Amendment

Challenges, is the Ninth Circuit an Impartial

b) Does The Indefinite Administrative Stay

Violate Due Process when Issued Without

Request, Notice, or Hearing?......0....cccccceeeeee 8

II. Ordering A Preliminary Injunction Barring Government from any

further Enforcement of its Undisputed Alleged Unconstitutional

Gun Control Tyranny, is Consistent with the Constitution............ 10

1. Uncontested Factual Truths...............::ccccccsseseeesseenees 10

2. Undisputable Facts of Status Quo Ante.........00.c.c0- 13

A. The Four-factor Test, as Applied to the Undisputed Facts of

this Case Supports Preliminary Injunctive Relief............... 15

1) Likelihood of Success on the Merits, and

Irreparable injury Support granting preliminary

injunctive relief. ..............cec cc ccceesssccesessecscveessceseesareeenens 18

2) The Constitutional Presumption Favors

Granting Injunctive Relief on the Merits......19

3) Public Interest and Balance of

Equities Warrant Injunctive Relief in

Walker's Favor..........ccccccccsssecccccceesssesseseeseeeeees 23

(a) “Shall not be infringed,” Textually and

Historically Prohibits Government the Power

to Encroach Upon, Limit, or Take away the

right of the people, to keep and bear arms-

WEAPONS... cccccccesesececseeeceeseeeeeueeeceecueeeeeeseceesanees 24

(i) Heller’s Historical Principles of The

Second Amendment Support Granting

Injunctive Relief in this case.............. 28

CONCLUSION bcsisasosnssnaniarnenensanvsommaannans sauna nvanenenanntenntvestevaais seasenenenennemionens 40

Appendix A Motion To Ninth Circuit, Docket Number in Case 23-55525

and supporting Exhibits A through C.............ccccccceseeseeeees 1-73

Appendix B_ First Amended Complaint for Declaratory and Injunctive

Relief, Case No. 20-cv-031 DMS AGS U.S.D.C. Southern

District Califonia cccccnevenssnesnccummencaswenonseawoasnanavavansesnes 1-55

TABLE OF AUTHORTIES

United States Constitution

Article VI..........cc cece cscccscsecesecctscseseeseseseeseeseseecsesenees 3, 10, 23, 27, 36-37

Amendment I]......... ccc ccc ccccccsesceccccceceeecereceeeees 4-8, 10-18, 20-26, 28-38

Amendment [X.........ccccccccsccescseveceeeeseveensevecessensees 14-15, 23, 26, 30

Amendment X........cccccecceccevvsneceseuueueeeeesseeeeesseeeecesessessneseteteees 3, 15

Amendment XIV..........ccccessasecceucseceseveceessceeeeaevesseusveeeneeasenses 3, 15

United States Case Law

Afroyim v Rusk,

38 TUW.S. 2531( 196 7 essncscenscennssnssonesunvunssessessascacamicsata sateen ecu ssrusrraaniststbcaniaaasiesie 15

Baily v Alabama,

219 U.S. 219 (1911 )geiscccsvcscacisescaisaicnteesereesaecessssseesenseceneosenenonpannasonseconenss 37

Baird v Bonta,

81 F.4th 1036 (9th Cir. 20238).......ccccccccccccecceccececcsesssseeeceseveree 18-21, 24-25

Bearden v Georgia,

461 U.S. 660 (1988)... cccccesseecesssesncsseeceeceeeceeseeseeteseeerereeeeenenes 14

Bostock v Clayton County,

590 U.S. 644 (2020)......... 2.0.01. cesswanuaamwnasieanueaccuvewncneavectuweccess 23&26

Bower v. County of Inyo,

489 U.S. 593 (1989)... ec cccccsesesesceesevensceeseceseeeeeseeceeeeeeensereetees 4&19

Brown v. Davenport,

596 U.S. 118 (2022)...cccccccecccsecssessucssessessssvecsecsesssssucsessvessessvesecseessesves 12

Carducci v Regan,

714 F.2d 171 (D.C. Cir. 1983)...ccccccccecsessessecsssssessessessesssssessuessessessessees 22

Clements v. Airport Auth. Of Washoe County,

69 F.3d 321 (9% Cir. 1995) scsssusscosecasavsscsseuaccencetartesraseqenabsevesavessyeeasns 8

Cohens v. Virginia,

6 Wheat. 264 (1821)... cccssessseccesesssssssseeeeeeeesssesnseeeseesesesaeeceresees 12

Commonwealth Coatings Corp. v. Continental Casualty Co.,

393 U.S. 145 (1968)... ssssvscsssncexecomesncsepacieasvenasavonaucecosmemuisumemaumnsane 7

Dickerson v United States,

580 U.S. 428 (2000)... eccessccecesssscecaeceecceecnsssaeeccesersesseesuccessesseeeaes 4

District of Columbia v Heller,

554 U.S. 570 (2008).........ccescccne cee secseesssssseeeees 4,17, 25, 27, 29-34, 39

Dobbs v Jackson’s Women’s Health Org.,

597 U.S. 215 (2022)..................00++ sawaaneaseauesmmanauvaemeusvenauansines +0 30, 32, 36

Dred Scott v Sandford,

GO U.S. 893 (1857) ..cseccscecsescsesscsssessesssessessessuessecsuessessusstessesssestessseeseee 28

Erickson v Pardus,

127 S. Ct. 2187 (2007).......cccsccescensvesne ssisbbubieniswastawestewactisaccnnmaoiasendustes 4

ili

Estelle v Gamble

429 U.S. 97 (976 \exssscccsssesapcioscvsssianssvscedacassassanscassan ccerernysmeseeesienceses Cover

French v. Edwards,

80 U.S. (18 Wall. 506) 506 (1872)... ecceessseeseesecceececceeeeceeeeeeeess 26

Griswold v Connecticut,

B81 U.S. 479 (1965)... cecccesesesnscceceeeessecceceeeceessceeceesecsnsceeeececeseeeaes 33

Haaland v. Brackeen,

599 U.S. 255 (2028)..........ccccccsssssssnernee soon sdssigunnabauvesiahrncanaveeceesbeiees 28-29

Heiner v Donnan,

285 U.S. 812 (1982)... eeeeesseseescccesceeseeceeeseseessssesssesessessenseeeereees 37

Home Building & Loan Assn. v. Blaisdell,

290 U.S. 398 (1934)................ .sessasspeeeeseswarsespsasiavemaemnmnenpmarenwene: 28

INS v. Chadra,

462 U.S. 919 (1988)... eececccececceecsseeesessseesenseseesceeceereeeceececeeeceseeeeees 27

Kanter v Barr,

919 F.3d 437 (7th Cir. 2019)... ssssssciswcasasseaucsnsserensenesessommatsaeumenssiwarest 39

Kirtsaeng v. John Wiley & Sons, Inc.,

183 S. Ct. 1851 (2018)... cc cceeceecceceeeceersessssssessnesereeeneseeseaees 35

Lake County v Rollins,

130 U.S. 662 (1889). .... .sssssasssssswenvwawawwaaadesderesassanpasesaasasesssacssss 26&29

Leedom vu Kyne,

358 U.S. 184 (1958)...ccccccsessecsesssecsecsesssesssecsesssessecssessuesseeseeseasesees 268&37

Luria v. United States,

231 U.S. 9 (1918). ...... cssussssncssassusesessnnsaptcanssesen adacsaessasvassesasentineexsyserees 15

Marbury v Madison,

5 U.S. 187 (1808) 0... ccc. .cc...<000++. simusosaanvomsnzecunsiannareacsasanwecenecoesnsmesesses. 28

Marshal v Jerrico,

AAG U.S. 238 (1980).....ceccecsecseccsecsecsesssvesucsscsucsssessessuessessuesscsnsereeses 6-7, 9

Martin v. Franklin Capital Corp.,

546 U.S.182 (2005) ccssccssssvssisesssswarscncvssassasasusosnsunuiccnavinarmveunavereuauess 18

Martin v Hunter’s Lessee,

14 U.S. 804 (1816)... ee ceeccssessseseesersaeaceeseeeeeeceecenseseeseneeneeees 29

McNeil v. United States,

508 U.S. 106 (1999)....... cmsssusccamaenusvecunmcuererneasesasnweeizeess 26

Metropolitan Stevedore Co. v. Rambo,

B15 U.S. 291 (1995)... cece csccscsececeeceteceeseeeeeeseessssseesesscseeeeeseeesss 5&35

Nken v. Holder,

129 S. Ct. 1749 (2009)....... cee eeeeeeeeceeeeeeceeenes Cover, 1, 8-9, 15, 18-19

NY Pistol & Rifle Assoc. v Bruen,

597 U.S. 1 (2028)... bee v.12, 17, 21-22, 25-27, 29-32, 36

Osborn v. Bank of the United States,

22 U.S. 738 (1824)...........sscasasssenigunssinnsapavasvansecbssasssesunsacentavessessessxasies 15

Porter v. Warner Holding Co.,

328 U.S; BOD" LOA G)) ---cnanesanmacesasmesanctssce enema ene SNES PETA RE RONNIE 1

iv

Reid v. Covert,

B54 U.S. 1 (1957)... cece ccesec cee eeneeeeeeneeteeaeeeeesuseeecssesseesersessseceesers 27

Ross v. Blake,

136 S. Ct. 1850 (2016). ......... .ssavessescenenssvcaresvawerovunscmcncaveeuntoasemses 21, 25

Rubin v, United States,

MAD U.S. 424 (1981)... ccccceeeseseeeecnessensessneceecereeeeeeereceeeeseesteeeeseeeeeees 28

Sheetz v County of Eldorado,

GOL U.S. 267 (2024)... ccccccccsessesecececceesseeececeseeseesaaeesesesseaseeseeenes 12

Schmitz v Zilvetti,

20 F.3d 1043 (Oth Cir. 1994)... cece ceeeseccceccecceecerecececeeeeeseseseessrereeeess 8

Shapiro v Thompson,

394 U.S. 618 (1969)........... cgsvsaescnmsaescssmesuemsssosassesusasansmacsaeevenss 38

Students of Fair Admissions v. President and Fellows of Harvard

College, 143 S. Ct. 2141 (2028)... cccccececessesssnsseeceeesseeeeeeeeenes 28

Swierkiewicz v Sorema NA,

534 U.S. 506 (2002)... ee ecceeeessssscescccecceeeeeeseceeeeeeeeceessenneeaneees Cover

Trump v Anderson,

601 U.S. 100 (2024)... cee cceceeceeeee senses csssssststssesessstseeeee 2, 40

Tumey v. Ohio,

273 U.S. 510 (1927)... cccccsceececccecccccesseccuccaneeeessesesesceesseesenaneans 9, 20

United State v Cruikshank,

92 U.S. 542 (1876) cccascnen. son assensasvave> monanannenn eae RAmNRNRMANNARR AMIRNRRUKIRANS 37

United States v Duarte,

101 F4th 657 (9t Cir. 2024)... ceeeeeeeeeeeeees 1-2, 5-7, 10-12, 17, 19

United States v. Jackson,

390 U.S. 570 (1968).............:0scccceeee scsassuuavausecanswaunnsucuunasnucuineuvenvaenniess 38

United States v Jones,

No 3:23-CR-74-CWR-LGI (SD Miss 2024)............ccccseesssssseceeeeeeeeeeeees 39

USA v Perez-Garcia,

__ FF. 4th (22-50314)(9th Cir. 2024)... ceceeeeeceeeeeceeseees 6-8, 20

United State v. Rahimi,

144 S. Ct. 1889 (2024)..5-7, 11-18, 15, 17, 20, 22-24, 27-30, 34, 37-39

United States v Sprague,

282 U.S. 716 (1981)...... cece ces ece ee cee eee sea secenssecseessueesesesessesssssssessssess QO

United States v Texas,

144 S. Ct. 797 (2024)... cccceccceceececcecceeceecesecssssccnsesenessesssenaces 2, 8-10, 16

U.S. v. Kincade,

379 F.3d 813 (9th Cir. 2004).................... easpusasnseaasencbaeacseteanavasweuwess 14

Warth v. Seldin,

422 U.S. 490 (1974)... cece ecsssecssesecessssssecceceeececeeceeeeeceseceseseseeseesesserees 4

Withrow v Larkin,

421 U.S. 85 (1975)... cece eecesceeseeecescnsecceseneeecceceeseseeeeeeeeeceeseneseneseeesees 6

West Virginia Brd. of Edu. v. Barnette,

319 U.S. 624 (1948)... ceecescccsscceccccecccnsccceesneevseseeeeeecenseseeesuanea 30

Wolff v McDonnel,

418 U.S. 539 (1974)... icassscscasss sescevssaensuss mas couaeasaganceuecaceancaguvecsgavnnencanes 39

State Case Law

In re Dannenberg,

23 Cal. Rptr. 3d 417 (2005)............cccecccnecceesecesceecessesessseeesssseeeeenes 13

Laws of The United States

18 U.S.C. §§921-981... 0. cece ceccseceeceeceeeeeeeeeeeseeeneesecsecstsceseeseeeess 10

Fed. R. of Evid. Rule 301............ccccsssscsssosossssosssssssoocsvssvessvencsecsscccssevees 22

Sup Crt Rules, Rule 10... suicsivsssssccswercvsssceseeces sacninaieseisesavestisessdesasess A, 36

Sup Crt Rules, Rules 11 & 22... :scsasssswasevsevnzexssssssscsvessunsvaccsrccsuusoussasess 4

State Laws

California Constitution Article IT, §2(b).............ccceceeeseeeeeeeeeee sees: 13

California Constitution Article XX, §38.............ccccececeeeeeeceeeereneeers 13

California Government Code §§18150-18157.............ceceeeeeseecceeees 13

California Penal Code §3000...............cccceceeceeeteeeeeeeeeeseeeeneeeners 13

California Penal Code §§16000-34370............c:ccccceceeeeeeeeeeeneeeesees 10

California Penal Code §§29800-29831............ccccecceeeee eee eee een seeseees 10

Historical and Other Authorities

The Federalist, No. 84 (Cooke ed. 1961), at 578-579.............cccsseesees 33

Krapivkina, O.A. 2017. “Semantics of the verb shall in legal

discourse.” Jeztkoslvulje, 18(2), pp. 805-317..........cccccccceccessesesceeeseenees 25

Vi

INTRODUCTION

TO: THE HONORABLE ELENA KAGAN, JUSTICE FOR THE

NINTH CIRCUIT COURT OF APPEALS:

Mr. Walker respectfully applies to the Court to grant a

preliminary injunction, and vacate the indefinite, unreasoned

administrative stay order issued by the Ninth Circuit in this case. See

Appendix A, at pp. 49-50 (Motion filed 9/9/2024 Case: 2383-55525,

DktEntry 19[Hereafter “Appx. A,” with Corresponding Docket Page

number]). Under equitable principles this Court can “mold each

decree to the necessities of the particular case.” Porter v. Warner

Holding Co., 328 U.S. 395, 398 (1946).

In this case, because Mr. Walker is a Informa pauperis, pro se

claimant, the Ninth Circuit in an arbitrary act of partiality has

administratively suspended his appeal indefinitely awaiting the

outcome in an unrelated case without applying the four-factor test set

forth in Nken v Holder, 129 S. Ct. 1749 (2009). See Appx A, pp. 49-50;

but see Appendix A at p. 53 (Published Order Granting en banc review

in United States v Duarte, 22-50048).

I Undisputed Factual Allegations.

1. Neither party to this case originally sought a stay of the

appeal, and the respondent government elected not to address the

merits of the constitutional issues raised. Appx. A at p. 51.

2. The Ninth Circuit, on January 8, 2024, took it upon its

own inclination to place the appeal in indefinite abeyance, for no

equitable reason, after this matter had been fully briefed. Appx A at

p. 49.

3. Walker filed three motions requesting the Ninth Circuit

to remove the abeyance orders and proceed to the merits of his

Constitutional issues regardless of Duarte. Appx. pp. 8-15. United

States v Duarte 101 F4th 657 (9 Cir. 2024), was decided in favor of

Duarte, and en banc review was subsequently granted. Appx. A, at p.

53.

4. In this case a Ninth Circuit panel denied two of the

requests and indefinitely continued the administrative suspension of

the appeal by order dated July 24, 2024. Appx. A at p. 50. The third

request to remove the invalid suspension of the appeal currently

pending before that court was filed on 09/09/2024. Appx. A.

Administrative stays may have their use, “[b]ut a court’s

unreasoned decision to impose one for more than a month,” rather

than answer the appeal issue, is improper. United State v Texas, 144

S. Ct. 797, 805 (2024) (Opinion by Kagan J, dissenting from denial of

application to vacate stay). Accordingly, the indefinite abeyance of the

case is inappropriate. Appx A at pp. 8-15.

A. The parties to this case are:

The applicant, Steven Walker, is a member of the political

community, a free citizen of the United States and State of California.

The respondents, government of the State of California and

United States of America, their agents and officials, are collectively

citizens of the United States of America, who swore an oath to support

the Constitutional rights of Mr. Walker. U.S. Const. Art. VI, Cl. 3.

B. Allegations and Standing

The undisputed premise of this case is (1) the Constitution of

the United States of America is a compact between (2) all of the

People, including the people of government to (3) protect and secure

their blessings of liberty and posterity, and (4) the people in

government have breached their obligations under the terms of the

agreement by enacting and enforcing laws and policies which (a)

generally and specifically infringe upon and injure the fundamental

right of Mr. Walker to keep and bear his choice of arms in the manner

he deems appropriate for personal security, self-defense and safety,

by way of (b) a non-delegated power, unmoored from the

Constitution. Thereby voiding all laws and policies which infringe

upon, limit, violate, or restrict the right of Mr. Walker to keep and

bear weapons, including firearms. See Appendix B —Verified First

Amended Complaint for Declaratory & Injunctive Relief, at pp. 1-24.

C. Article III Jurisdiction of This Court:

The undisputed facts of this case arise under the United States

Constitution. As such this Court’s supervisory power extends to this

case by way of Rules 10, 11 and 22, under the authority of Article III.

Cf. Dickerson v United States, 530 U.S. 428, 437-38 (2000) (This Court

has supervisory power over the federal courts).

1. Pro se Pleadings.

Walker's Pro Se pleadings are to be liberally construed.

Erickson v Pardus, 127 8S. Ct. 2187, 2200 (2007). Courts must accept

as true all factual allegations contained in the pleadings. E.g. Bower

v County of Inyo, 489 U.S. 593, 598 (1989).2 Thus, the exclusion from

the right alone meets the critical threshold importance of standing,

regardless of any objective or subjective disadvantage that may flow

from it. Warth v Seldin, 442 U.S. 490, 498-503 & n. 13 (1974).

2 The district court judge did not accept as true the uncontested

allegations in the complaint but instead argued Walker lacked

standing regardless of whether he is law-abiding citizen, because

District of Columbia v Heller, 554 U.S. 570, 626-27 (2008), “made

clear,” in dicta, that felon “status” is excepted. See Appx A at pp. 67-

74. First, Walker is not a felon, but a member of the political

community who no longer poses a credible threat to society. Appx B,

pp. 15-24. Second, Heller made clear the “exceptions” were not

historically justified, nor expounded upon (554 U.S. at 635). Third,

Justice Breyer, in his dissent clearly stated the prohibitions were

“puzzle[ing]” because they were unclear, nor supported by any

colonial analogues (id., 554 U.S. at 720-721). Lastly, “[b]reath spent

repeating dicta does not infuse it with life.” Metropolitan Stevedore

Co. v. Rambo, 515 U.S. 291, 300 (1995). Therefore, the observations

of the lower courts “are neither authoritative nor persuasive.” Ibid.

4

II. Issues Presented in This Motion:

1. Is An Indefinite Unreasoned Administrative

Stay Appropriate Absent a Motion

Requesting a Stay Pending Appeal from a

Lower Court Judgment?

These same issues were presented to the Ninth Circuit. See

Appx. A, pp. 8-47 end Appx-B-at-+5+ Some nine months after the

reply brief was filed; Four-months after the decision in United States

v Duarte, 22-50048 (rehearing en banc granted) see Appx. A, pp.53-65;

HKight-months after Walker requested the appeals court to vacate the

original stay order; and over three-months after the Court decided

United States v Rahimi, 1448. Ct. 1889 (2024), along with a remand

of numerous cases back to the courts of appeal to re-evaluate and

consider Rahimi—and the Ninth Circuit still refuses to vacate the

unreasoned administrative stay in this case. Appx. A, p 50; but see

Appx. A p. 57 (Opinion, by Vandyke J, dissenting from order granting

en banc review in United State v. Duarte, 22-50048)(Our court will

supplement and invigorate the cherrypicked language already misand over-applied from the Court’s prior precedents. Like someone

who eisegeses Scripture just to validate their pre-existing worldview,

judges who are more interested in sidestepping than following the

Court’s Second Amendment precedent will latch onto phrases like

“presumptively lawful” and “law-abiding citizen” while conveniently

overlooking such bothersome details like the government’s burden of

5

supplying relevantly similar historical analogues.); also Appx. A at

pp. 68-69 & 71-73 (district judge uses cherry-picked dicta).

a) When it Comes to Second Amendment

Challenges, is the Ninth Circuit an

Impartial Decision maker?

The above proclamations by Judge Vandyke, along with the

Ninth Circuit's refusal to vacate an illegitimate stay, clearly

indicates Walker will not receive any type of unbiased review of his

undisputed Second Amendment challenge within that Circuit, where

the only people disputing his challenge are the judges within the

Circuit. Appx. A pp. 49-50 & 67-74. “Not only is a_ biased

decisionmaker constitutionally unacceptable but ‘our system of law

has always endeavored to prevent even the probability of

unfairness." Withrow v Larkin, 421 U.S. 35, 47 (1975); also see

Rahimi, 144 S. Ct. at 1909 (Gorsuch, J. Concurring)(Ninth Circuit's

“50-0 record” of favoring government regulation over Second

Amendment rights “stray[s] far from the Constitution’s

promise”.)(Cleaned up.). Further, within the past year, the Ninth

Circuit has granted en banc review in 3-favorable rulings against

government regulation of the Second Amendment right, while

denying review in those cases where the prevailing party was the

government. See USA v Perez-Garcia, 22-50314 (review denied

9/4/2024); U.S. v. Duarte, 22-50048( review granted); Teter v Lopez

20-15948 (review granted Feb 22. 2024); Duncan v Bonta, 23-55805

(review granted October 10, 2023); but see Marshal v Jerrico, 446 U.S.

238, 242 (1980)(The neutrality requirement helps to guarantee that

fundamental rights will not be taken on the basis of an erroneous or

distorted conception of the facts or the law); Commonwealth Coatings

Corp. v. Continental Casualty Co., 393 U.S. 145, 150 (1968)(every

tribunal must be unbiased but also must avoid even the appearance

of bias).

In essence, any litigant appearing within the Ninth Circuit

challenging Second Amendment deprivations does not receive either

the appearance or reality of fairness. Because, in this circuit, “you

could say that .. . 17/29ths of our bench is doing its best to avoid the

(Supreme) Court’s guidance and subvert its approach to the Second

Amendment. That is patently obvious to anyone paying attention.”

See Appx. A at p. 56; also see Perez-Garcia, 22-50314 ORDER at pp.

20-22 & 66 (Vandyke J, dissenting)(9*b Cir. 2024).

What Judge Vandyke is announcing, is that within the Ninth

Circuit, there is no assurance that a litigant will present their Second

Amendment claims to an arbiter who “is not predisposed to find

against [them].” Jerrico, 446 U.S. at 242. Judge Vandyke also

confirmed that the en banc panel in Duarte will surely rely on Rahimi

as support “for an inevitable and entirely predictable conclusion that

Duarte has no Second Amendment rights.” Appx. A at p. 58

[Emphasis added.] Staying Walker’s case until Duarte is decided will

obviously inspire the Ninth Circuit to rule in favor of the government,

who has not carried their burden of proof, thus removing any

“appearance” of justice. Jd. 446 U.S. at 242-43. Judge Vandyke has

clearly set forth at Appx. A at pp. 54-58 & 64-65, and Perez-Garcia at

pp. 20-66, a “reasonable impression of partiality” which makes mostly

all Ninth Circuit decisions a “predetermined script” which is “so

predictably biased against” Second Amendment rights, that they are

“suspect.” Cf. Schmitz v Zilveti, 20 F.3d 1043, 1046-1049 (9th Cir.

1994) Generally, Second Amendment adjudications within the Ninth

Circuit are tainted by a “supermajority” of biased decision makers

which cannot be constitutionally redeemed by review in an unbiased

tribunal. Appx. A p. 64; E.g. Clements v. Airport Auth. Of Washoe

County, 69 F.3d 321, 333 (9tt Cir. 1995).

b) Does The Indefinite Administrative

Stay Violate Due Process when Issued

Without Request, Notice, or Hearing?

Recently in United States v Texas 1448. Ct. 797 (2024), You (at

805), Justice Sotomayor (at 802), and Justice Barrett (at 798-800), all

agreed that an administrative stay precedes a ruling on a stay

pending appeal of a lower court judgment. Here there was never any

previous request asking for a stay of the lower court judgment

pending appeal. As such, there is not any equitable reason for the

Ninth Circuit to place this case in abeyance indefinitely without

applying the four-factor test required in Nken v Holder, 129 S. Ct.

1749 (2009); Appx. A pp. 49-50.

Justice Barrett explained in Texas, supra, 144 S. Ct. at 799:

“When entered, an administrative stay is

supposed to be a short-lived prelude to

the main event: a ruling on the motion for

a stay pending appeal. .. . An

administrative stay should last no longer

than necessary to make an intelligent

decision on the motion for a stay pending

appeal.” [Emphasis added. ]

The administrative stay issued in this case has been in play for

over 8-months without proper notice, motion, or hearing.’ Therefore,

the real problem “lurking” in this case, is the Ninth Circuit has

purposely avoided consideration of the Nken factors “for too long.”

Texas. at 799-800. It appears that a “temporary stay,” is intended to

pause the action for a short period of time until a court can consider a

3 Holding a case in abeyance is only permitted so a federal court

“can stay the enforcement of a judgment pending outcome of an

appeal.” Nken, 129 S. Ct. at 1754. It appears the only judgment the

Ninth Circuit is attempting to prolong is its own and it cannot provide

for a fair review Appx. A at pp. 64-65. Thus, the requirement of

neutrality in adjudicative proceedings which safeguards the two

central concerns of procedural due process, is absent in this case. Cf.

Jerrico, 446 U.S. at 242; Tumey v Ohio, 273 U.S. 510, 532 (1927).

motion for a stay of a lower court judgment pending appeal. For that

reason, at a minimum, administrative relief should (1) maintain the

status quo and (2) be time limited. As stated by Justice Sotomayor,

“ijn my view, even a single day of the status quo disruption... based

on an unreasoned order is one day too many.” Texas, 144 S. Ct. at

802-803. Accordingly, the current unreasoned stay of this case

violates due process, because it does not provide for a fair process, is

not short-lived and favors the government’s unconstitutional actions.

For those reasons and much more, the indeterminate stay is causing

detrimental harm to Walker.

II. Ordering A Preliminary Injunction Barring

Government from any further Enforcement of its

Alleged Undisputed Unconstitutional Gun

Control Tyranny, is Consistent with the Constitution.

1. Uncontested Factual Truths

Unlike Duarte, the facts in this case are undisputed. The

government has elected not to dispute them. Appx. A at p. 51.

The people of the representative state and federal government

(hereafter government) have created and are enforcing illegitimate

laws which deceptively trespass upon the Second Amendment rights

of the People in general, including Walker, to secure and defend their

state of freedom. See Calif. Penal Code §§16000-34370 & 29800-

29830; also see 18 U.S.C. §§921-931 (these laws cannot be presumed

valid where government is prohibited by the Constitution from

10

enacting and enforcing them); see also U.S. Const. Art. VI, Cl. 2 &

U.S. Const. Amend. II; and Appx. B at pp. 3-5, 8-10, 12-29, & 20-45.

Government is attempting to destroy the Second Amendment

rights of all free citizens under the disingenuous and ineffectual

pretext of controlling Gun violence.4 Consequently, the outcome of

U.S. v. Duarte, has no bearing upon this case, because the questions

decided in Duarte only apply to Duarte, not Walker. Why? Because

the Ninth Circuit cannot rely on the questions in Duarte to resolve

the questions in this case. Article III of the Constitution vests courts

O66,

with the power to decide only the “actual cas/e]” before it, “not

abstractions.” Rahimi, 144 §. Ct. 1910 (Gorsuch, J concurring.)

[Emphasis added.] And the facts of Walker’s case, unlike Duarte’s, do

not pose the question whether the challenged statute in Duarte is

lawfully applied to Walker, or is valid when applied to individuals

who are under supervised release, or committed domestic violence.

. Yet, this is a ruse because the people in government are the

number one exporters of weapons for the purpose of promoting

world-wide armed violence. See https://www.cnn .com/2022/07/11

/politics /biden-mass-shooting-survivors -gun-safety-legislation

/Aindex.html; but see https: //www.forbes.com/sites/williamhartung

/2022/03/18/were-1-the-us-government-is-the-worlds-largest-arms

dealer/?sh = 4fec- 36215bb9; also https://www.cnn.com/2016/05/24/

politics/us-arms-sales-worldwide/ index.html; also see Fiscal Year

2022 U.S. Arms Transfers and Defense Trade-United States

Department of State at https://www. state.gov/ fiscal-year-2022-u-sarms-transfers-and-defense-trade/; and https:// en.wikipedia.org/

wiki/United_ States_ and_statesponsored_terrorism.

11

Walker’s questions are narrower: whether the state and federal

governments have a legitimate power to invade upon a right where

the Constitution undeniably prohibits any infringement of the right.

Appx. B at pp. 1-11, 12-19, 20-45 & 46-54.

As such, any opinion in Duarte must “be taken in connection

with the case in which those expressions are used,” Cohens v.

Virginia, 6 Wheat. 264, 399 (1821) and may not be “stretch[ed] . . .

beyond their context.” Rahimi, 144 S. Ct. 1910 (Gorsuch, J,

concurring), citing Brown v. Davenport, 596 U. S. 118, 141 (2022).

Appropriately, the undisputed facts of this case cannot be stretched

to meet the disputed facts of Duarte or visa versa. Rather, under

Article III, a court must apply the Second Amendment by examining

text, history and precedent. Unambiguous text like “shall not be

infringed” and “the right of the people to keep and bear arms” says

what it means and means what it says. Rahimi, supra, 1448. Ct. 1911

(Kavanaugh J. Concurring).

5 The Court has stressed that the Second Amendment is not a secondclass right. NY Pistol Assn. v Bruen, 597 U.S. 1, 70 (2022). As such, it is “no

‘poor relation to other constitutional rights.” Sheetz v County of Eldorado,

601 U.S. 267, 283 (2024)(Gorsuch J. Conc.) A governmentally imposed

condition on the freedom of speech for example, is no more permissible when

enforced against a large “class” of persons than it is when enforced against

a “particular” group. If Second Amendment claims are to receive “like

treatment,” then whether government has infringed on Walker’s right to

keep and bear arms, cannot depend on whether it has also trespassed upon

Duarte’s right. [bid. As such, the abeyance orders here are inconsistent with

constitutional requirements and unnecessarily disrupt the status quo.

12

2. Undisputable Facts of Status Quo Ante.

Thirty-four (34) years ago, Walker was convicted and punished

for committing a one-time, non-injury felony. The weapon discharged

a single shot into the air harming no one. Under the terms of the

Constitution, he paid his debt to society and was discharged from all

existing felony commitments because he no longer posed a credible

threat of danger to the community. See California Penal Code § 3000,

subd. (b)(1) [discharge provision]; e.g. In re Dannenberg, 23 Cal. Rptr.

3d 417, 428-431 (2005)[Inmate is to be released where it is

determined that they no longer pose an unreasonable risk of danger

to public safety]. These facts are incontrovertible. Being discharged,

he is no longer disqualified from voting or serving on a jury. See Calif.

Const. Art II, §2(b). He is employed as a Health & Safety Officer for

State government and is a free citizen, who swore an oath to support

and defend the Constitution of the United States. See Calif. Const.

Art XX, §3; and Cal. Gov. Code §§18150-18158.6

6 At the time of his criminal conviction in 1990, Walker was

determined by a court to pose a “credible threat” to society. However,

once he discharged from that decree, the threat was no longer credible

and therefore any government-imposed restrictions on his right to

keep and bear firearms is no longer consistent with the principles

underlying the Second Amendment. Cf. Rahimi, 144 8. Ct. 1901-1903

[Temporary disarmament for duration of court order is consistent

with principles of Second Amendment]. Essentially, the facts which

supported his criminal conviction in 1990 are no longer in existence

in 2024 and have not been in existence since 1997.

13

Walker’s reserved rights to armed security, personal safety,

and defense of his life, freedom, family, home, and homeland secured

by the Constitution, is continually being injured daily because his

ability to exercise those rights is being chilled by governmentimposed status-based presumptions and sanctions stemming from

non-delegated authority, as well as the administrative stay in this

case. He otherwise retains every single civic and constitutional right

which existed prior to his conviction, even the right which “shall not

be infringed.” See U.S. Const. Art VI. Cl. 2; U.S. Const. Amend. IT;

U.S. Const. Amend. IX; U.S. Const. Amend. X; and U.S. Const.

Amend. XIV. In essence, Walker’s discharge from the court decree

and corresponding conviction resulted in a “paid debt” to society,

which under the principles of the Constitution reset his footing as a

native citizen to status quo ante. Appx. B pp. 7-24. Basically, Walker’s

discharge “demonstrated a willingness to pay his debt to society and

an ability to conform his conduct to social norms.”F.g. Bearden v

Georgia, 461 U.S. 660, 668-671 (1983); Cf U.S. v. Kincade,379 F.3d

813, 872 (9th Cir. 2004) [Kozinski J, dissent.] [“Once Kincade

completes his period of supervised release, he becomes an ordinary

citizen just like everyone else. Having paid his debt to society, he

recovers his full .. . rights, and police have no greater authority to

invade his sphere than anyone else's.”] As such, upon the discharge

14

of his felony commitments, Walker once again became a full free

member of society, retaining “all the rights of a native citizen, and

standing, in the view of the constitution, on the footing of a native.

The constitution does not authorize [government] to enlarge or

abridge those rights.” Cf. Osborn v. Bank of the United States, 22 U.S.

738, 827 (1824) and Luria v. United States, 231 U.S. 9, 22 (1913); see

also Afroyim uv Rusk, 387 U.S. 253, 257-262 (1967)(The Constitution

grants no express nor implied powers allowing government to strip a

citizen of their rights).

The administrative stay in this case favors the Ninth Circuit’s

continued partiality towards government’s unconstitutional violation

of Walker’s rights secured under the Second, Ninth, and Fourteenth

Amendments. Either way, since Walker no longer poses a credible

threat to society, the government, nor any court, has a legitimate

authority to infringe upon his constitutional right to keep and bear

(fire)arms. Rahimi, 144 S. Ct. at 1903.

A, The Four-factor Test, as Applied to the

Undisputed Facts of this Case, Supports

Preliminary Injunctive Relief.

The indefinite stay in this case fails to meet the requirements

set forth in Nken v. Holder, 129 S. Ct. at 1754 (No court can make

time stand still while it considers an appeal). There is no one-size-fits-

all test that courts apply before entering an administrative stay,

15

which does not appear to be a problem when “appropriate for a

measure that functions as a flexible, short-term tool.” Texas,, supra,

1448. Ct. at 799. However, the indefinite stay in this case is not being

used as a flexible, short-term tool, because (1) no party requested a

stay of the lower court judgment prior to January 8, 2024, and (2) the

Ninth Circuit’s unreasoned orders do not comply with Nken, 129 S.

Ct. at 1761, which requires the four factor test be applied to the order

staying this appeal indefinitely.

Here, the concern is that the indefinite stay of Walker's appeal

has essentially put the appeal dead in the water until further notice

from that court—without (1) either party filing a motion for a stay of

the lower court’s judgement, and (2) any equitable reason, other than

Walker being a pro se litigant raising a colorable Second Amendment

challenge. See Appx. A at pp. 49-51, 54-58, 64-65, 67-71; Cf. Nken,

supra, 129 S.Ct. at 1754 (it "has always been held, ... a federal court

can stay the enforcement of a judgment pending the outcome of an

appeal."). The Ninth Circuit’s issuance of the indefinite stay creates

unfairness because it has pre-determined this case based on personal

or political bias about the scope of the Second Amendment. Appx. A

at pp. 54-58 & 64-65. Yet, the Amendment’s scope is clear. The right

shall not be infringed. U.S. Const. Amend. II.

16

The Court recently in Rahimi and Bruen, has provided the

lower courts with the guidance necessary for a reasoned evaluation of

Second Amendment challenges regardless of Duarte. See Rahimi, 144

S. Ct. 1897 (text & history are the guidelines, but text controls).

Moreover, reliance on any type of virtuous/law-abiding/responsible

citizen rhetoric is inconsistent with the Constitution. Id 144 S. Ct

1903 (“Responsible” is a vague term). Basically, status-based

restrictions are baseless.7

The fact that the issuance of a stay is left to the court's

discretion "does not mean that no legal standard governs that

discretion .... [A] motion to [a court's] discretion is a motion, not to its

inclination, but to its judgment; and its judgment is to be guided by

sound legal principles." Martin v. Franklin Capital Corp., 546 U.S.

132, 139 (2005). Again, no motion was filed with the lower courts in

7 In Rahimi, the Government contended that the Court has already

held the Second Amendment protects only “responsible, law-abiding” citizens. Brief for United States 6, 11-12. “The plain text of the Second

Amendment quashes this argument.” The Amendment recognizes “the right

of the people to keep and bear Arms.” When the Constitution refers to “the

people,” the term “unambiguously refers to all members of the political

community.” Heller, 554 U. S., at 580; see also id., at 581 (beginning its

analysis with the strong “presumption that the Second Amendment right

belongs to all Americans”). Any claim, by a court or anyone else that the

Court already held the Second Amendment protects only “law-abiding,

responsible (virtuous) citizens” 1s specious at best. The only conceivably

relevant language is the passing reference in Heller to laws banning felons

and others from possessing firearms. See 554 U. S., at 626-627, and n. 26.

“That discussion is dicta.” Rahimi, supra, 1448. Ct. 1944 & n7 (Thomas,

J, Dissenting).

17

this case until September 2024—by Walker. Appx. A. The legal

principles of issuing an indefinite stay, however, have been distilled

into the “consideration” of four factors. Nken, 129 S. Ct. at 1761; also

see Cf. Baird v. Bonta, 81 F.4th 1036, 1044-1048 (9th Cir. 2023)

(Applying four factor test to conclude district court abused its

discretion in denying a preliminary injunction in Second Amendment

case and requesting lower court to issue a decision expeditiously).

1) Likelihood of Success on the Merits, and

Irreparable injury Support granting

preliminary injunctive relief.

The appropriate legal standard to analyze a stay or injunctive

relief requires a court to determine whether a movant has established

that (1) he is likely to succeed on the merits of his claim, (2) he is

likely to suffer irreparable harm absent the preliminary injunction,

(3) the balance of equities tips in his favor, and (4) a preliminary

injunction is in the public interest. When, like here, the non-movant

is the government, the last two factors "merge." Baird v Bonita, 81

F.4th 1036, 1040 (9% Cir, 2023). Under Nken, 129 S. Ct. at 1761, the

Court "must consider" all four factors prior to issuing any order

indefinitely staying a case. A pursuit the Ninth Circuit refused to do.

Here, the first factor is not met for the continuance of the

administrative stay because prior to the issuance of the stay order

neither party moved the Ninth Circuit for a stay of the lower court

18

judgment. Appx. A at p. 49. Further, if the Ninth Circuit is going to

keep the stay in place, then it must be construed as a stay of the lower

court judgment pending appeal, rather than a stay pending the

outcome in Duarte, an unrelated case. Nken, 129 S. Ct. at 1758. Also,

the Ninth Circuit issued the stay only after this matter was fully

briefed, where the government elected not to dispute the issues raised

on appeal. See Appx A at pp. 49-51. Consequently, under principles of

party presentation where the government elected not to carry its

burden of proof, the undisputed factual allegations in all Walker's

pleadings are to be accepted as true. Appx. B pp. 1-54; e.g. Bower, 489

U.S. 598. Furthermore, the Ninth Circuit cannot “try to help the

government carry its burden”. Baird, supra, 81 F.4*» at 1041. Courts

rely on the parties to frame the issues for decision and assign to courts

the role of neutral arbiter of matters the parties present. Greenlaw v

U.S. 554 U.S. 237. 243-44 (2008). A court cannot be neutral when

partisan for the government 100% of the time especially where pre-

existing Second Amendment rights are at stake.’ Either way, the

8 In Second Amendment cases, it appears most judges in the Ninth

Circuit have a 50-0 practice of “improperly aiding the government in

meeting its burden of justification” to satisfy a predetermined outcome. See

Perez-Garcia, Supra, 22-50314, Order at pp. 20-22 & 66 (Vandyke, J.

Dissenting); also see Tumey, 273 U.S. at 532-533 (due process violated where

balance is not held nice, clear and true); and Code of Conduct for United

States Judges, Canon 3(A)(1)(A judge should be faithful to, and maintain

professional competence in, the law and should not be swayed by partisan

interests, public clamor, or fear of criticism).

19

indefinite administrative stay in this case results in irreparable harm

to Walker no matter how brief the violation.

Additionally, Walker’s likelihood of success tips the public

interest sharply in his favor. Baird, 81 F.4* at 1042-43.9 Moreover, a

recurring and difficult issue arises in the context of determining

exceptions to textually guaranteed individual rights. To what extent

does the Constitution allow the government to regulate speech or

guns, for example? Either way, the analysis is the same—"does the

constitutional provision, as originally understood, permit the

challenged law where the constitutional baseline is protection of the

textually enumerated right.” Rahimi, supra, 144 S. Ct. 1912 &n. 1

(Kavanaugh J, Concurring) [Emphasis added.] Yet, where the text

does not expressly create an exception and there is no exception

implied from the text, an exception to the textually enumerated right

cannot be created out of thin air, regardless of any assumed historical

understanding, because the basic principle is the “text of the

Constitution always controls.” Id, 144S. Ct. 1912 & n. 2; also compare

Ross v. Blake, 136 S. Ct. 1850, 1856-1857 (2016) (Court’s cannot add

9 The decision in Rahim1, holding that a “temporary” suspension

of the Second Amendment right is constitutional where a court

determined Rahimi posed a credible threat to society supports

Walker’s likelihood of success, because it is undeniably demonstrated

that he no longer poses a credible threat. Id. 144 S. Ct. 1901-02; Appx

B, pp. 2-22; Ante at pp. 10-15. And the government has elected to not

dispute this highly relevant fact. Appx. A at p. 51.

20

unwritten exceptions to rigorous textual requirements irrespective of

any wide-ranging circumstances).

2) The Constitutional Presumption Favors

Granting Injunctive Relief on the Merits

As noted, the likelihood of success is a particularly important

consideration in the preliminary injunction analysis of a

constitutional claim and is therefore equally important when an

unreasoned administrative stay order is issued. “[BJecause a finding

that [Walker] is likely to succeed on the merits of such a claim

sharply tilts in [his] favor both the irreparable harm factor, and the

merged public interest and balance of harms factors.” Baird, supra 81

F.4th at 1044. Consequently, an Appellant who can show that a

statute likely violates the Constitution will also usually show "that

both the public interest and the balance of the equities favor a

preliminary injunction." Ibid.

In NY Pistol & Rifle Assoc, v Bruen, 597 U.S. 1 (2022), this

Court held that “when the Second Amendment's plain text covers an

individual's conduct, the Constitution presumptively protects that

conduct.” To justify its regulation infringing upon that conduct, the

government may not simply posit that the regulation promotes an

important interest. Rather, the government must demonstrate (a)

they have the constitutional authority to regulate and (b) “the

regulation is consistent with this Nation's historical tradition of

21

firearm regulation.” Only if their power is valid and the regulation is

consistent with this Nation's historical tradition may a court conclude

that the individual's conduct falls outside the Second Amendment's

399

“unqualified command.” Bruen, at 17. Moreover, Bruen emphasized

that the “burden” to overcome the presumption of Constitutional

protected conduct falls on the government to justify its infringement,

and only if the government carries that burden, might they show that

the proposed course of conduct is not protected. Id. 597 U.S. at 33-34;

also see Rahimi, 1448S. Ct. 1897.

In this case, the government has elected not to carry its burden,

and therefore, has elected not to overcome the presumption of

protected conduct. Appx. A at p. 51. Consequently, where a party,

here the government, “has made no attempt to address the issue”

appellate courts “will not remedy the defect, especially where, as here,

‘important questions of far-reaching significance’ are involved.”

Carducci v Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Thus, the

likelihood of success tilts dramatically in Walker’s favor because the

government has elected not to rebut the Constitutional superior

presumption. Nor can it, where its power to interfere is prohibited by

the Constitution. U.S. Const. Art. VI & U.S. Const. Amends II & IX;

also see Rahimi, 144 S. Ct. 1924 (Barrett J Conc.)(“A regulation is

constitutional only if the government affirmatively proves that it is

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