The 9th Circuit rules in our favor!

[bushmaster1313]

Originally Posted by Rastoff

[My snip for brevity. You can read the original in post #43.]

Thank you for that explanation.

The thing that frustrates me is that it seems the rulings in these cases are based on feelings or political bent rather than law. For example: In the case over the 10 day waiting period, the judge at the district court ruled that the state hadn't provided sufficient evidence that the waiting period had reduced crime which was the main purpose for the law. He stated clearly in his brief that there was no correlation whatsoever to waiting 10 days and reducing crime. Kamala Harris appealed it. The 9th circuit upheld the ruling.

But then Harris appealed it again asking for an en banc ruling. At this point, based on what you pointed out as the two reasons, there was no basis for the 9th circuit to take up the case in en banc unless they were just doing it based on feeling rather than law, right? Of course they over turned it in en banc.

When the full court hears the appeal en banc they are not reviewing what the three judge appeal panel found. Rather, they hear the appeal of the district judge again.

But you are on to something. Originalist Judges want to decide cases based on what the Constitution means and Activist Judges decide cases based on what they want the Constitution to mean.

Judges are appointed and confirmed by elected officials. ]

[kgw]

Yes. By those of the ruling class who want their police forces to have the "upper hand." Pay attention, if you please.

Originally Posted by fordson

Yes, it’s all very clear. Clearly these are efforts to restrict firearm ownership.

[smoothshooter]

Don’t be popping the champagne corks just yet.
This is FAR from over. Whatever else you can say about them, the Dems are not quitters like Rebumblican politicians are.

Do not be surprised if the Dem prosecutors in CA simply ignore any adverse rulings against them and continue to enforce the ban, just to force gun owners to bankrupt themselves on court costs and attorney’s fees.

[Hondo44]

Originally Posted by bushmaster1313

But you are on to something. Originalist Judges want to decide cases on based on what the Constitution means and Activist Judges decide cases based on what they want the Constitution to mean.

You got that right but it goes a lot deeper. That's the critical problem with our entire governmental system underlying every political policy, congressional law, candidate qualification for office, and judicial decision. We have people in government positions, at all levels elected or not that swear to uphold the constitution but flagrantly do not! When was even just one removed from a position or an office, or impeached for not upholding their pledge???

Sure there are grey areas that may require scholarly debate and analysis to determine constitutionality of particular issues. But many policies, decisions, laws, etc., exist that are clear egregious affronts to the constitution.

If I had one suggestion/complaint I could make to our founding fathers, it would be that we have no quality control dept., i.e., a "constitutionality clearing house". It should not depend on which party is in power. "Activism" by definition is an affront to the constitution unless properly done thru the amendment process. But which it never is because it knowingly wouldn't succeed 99% of the time, and for good reason!

As it stands we are at the mercy of the initiative of politicians, (almost an oxymoron and certainly not a high point in the swamp of Washington), and if it happens, litigation on both sides is paid for by taxpayers. Or we're dependent on private citizens/organizations to fund extremely costly litigation, again taxpayers fund the government opposition. And even in that case, settlement decisions again fall prey to a mixed bag of originalist and activist attorneys general and judges! Folks, we're in a no win situation any way we look at it.

[ladder13]

Originally Posted by Hondo44

You got that right but it goes a lot deeper. That's the critical problem with our entire governmental system underlying every political policy, congressional law, candidate qualification for office, and judicial decision. We have people in government positions, at all levels elected or not that swear to uphold the constitution but flagrantly do not! When was even just one removed from a position or an office, or impeached for not upholding their pledge???

Sure there are grey areas that may require scholarly debate and analysis to determine constitutionality of particular issues. But many policies, decisions, laws, etc., exist that are clear egregious affronts to the constitution.

If I had one suggestion/complaint I could make to our founding fathers, it would be that we have no quality control dept., i.e., a "constitutionality clearing house". It should not depend on which party is in power. "Activism" by definition is an affront to the constitution unless properly done thru the amendment process. But which it never is because it knowingly wouldn't succeed 99% of the time, and for good reason!

As it stands we are at the mercy of the initiative of politicians, (almost an oxymoron and certainly not a high point in the swamp of Washington), and if it happens, litigation on both sides is paid for by taxpayers. Or we're dependent on private citizens/organizations to fund extremely costly litigation, again taxpayers fund the government opposition. And even in that case, settlement decisions again fall prey to a mixed bag of originalist and activist attorneys general and judges! Folks, we're in a no win situation any way we look at it.

Lot’s of truth right there. ^^^^^^^^^

[smoothshooter]

Originally Posted by 7tenz

I'm seeing posts about cancellations already over in CalGuns.

I am puzzled as tom why the gun laws in CA cause angst with so many people. The situation can’t be nearly as bad as some would have us believe.

[CH4]

Originally Posted by smoothshooter

I am puzzled as tom why the gun laws in CA cause angst with so many people. The situation can’t be nearly as bad as some would have us believe.

Not sure if you’re serious or joking. Yes, it’s absolutely as bad as folks say.

[Hondo44]

Originally Posted by smoothshooter

I am puzzled as tom why the gun laws in CA cause angst with so many people. The situation can’t be nearly as bad as some would have us believe.

It's actually worse once the strategy is understood. All of it is part of a piecemeal attack on 2nd amendment rights. None of it has anything to do with the usual "claims" of public safety! And as bad as that is, it's highly contagious to other blue states.

[ISCS Yoda]

For the record, there is presently no legal affect on jurisdictions outside the 9th Circuit. When the various Circuits have significantly different opinions that's when the SCOTUS takes a case.

I do think they'll have a complete de novo review by the entire 9th Circuit. I can't imagine that they'll sit back and let this stand so it's far from over.

As for the SCOTUS, if and when they ever decide to take up this case the real issue will be does Chief Justice Roberts have the legal cojones to rule properly in accord with the clear language of the Constitution or will he find another way to waffle out of it? Time will tell............

[stansdds]

Originally Posted by smoothshooter

I am puzzled as tom why the gun laws in CA cause angst with so many people. The situation can’t be nearly as bad as some would have us believe.

Perhaps you currently do not live in or near California and think your state will never go down the road that California chose. Here in Virginia, it seemed the overwhelming attitude was that it would not happen here. Last November's state elections ushered in a Democrat majority in both houses of our legislature and we already had a very liberal, Democrat governor, lieutenant governor, and attorney general. In one legislative session we went from having preemption laws that forbade localities instituting their own gun laws, no restrictions on how many firearms you could buy in a 30 day period, and the ability to sell and trade firearms without a FFL, and whole list of freedoms and liberties related to firearms ownership. All of that disappeared within a 2-month period. So if you think it is a California problem and does not affect you, you may soon be in for a sad surprise.

[Old 44 Guy]

I sure hope so but the 9th circuit has a lousy record. I don't have any but I hate to lose the rights.

[Benchrest1]

I don't know, but will lifting the ban allow us to use 20 and 30 round mags in our AR's?

[chief38]

Don't celebrate too much - I'm POSITIVE they are working on a different approach to the same means as we speak! The very sad part is that so many Americans are so brainwashed they actually think they are "doing good" by these "feel good - do nothing" unconstitutional laws. Little do they realize they are actually "loading the gun that will eventually shoot them in the foot"!

The smart ones KNOW exactly what they are doing but the majority of he "followers" are nothing more than "useful idiots" I'm sad to say. One day they might wake up and wonder how we got where they are taking us......

[Racer X]

The same thing with "Assault Weapons" bans. More people are killed with hand/feet and wooden things like sticks/lumber/bats etc, than rifles. People will use what they have. We need to limit brick purchases to one per person, per month. No one needs more than one brick. A downed tree should be considered an arsenal.

[Erich]

Circuit split as of today, compliments of the Third:
3rd Circuit Federal Appeals Court Says Large-Capacity Magazine Bans Are OK – Reason.com
(Is that a Mak mag filled with blanks?)

[stansdds]

Split circuit court decisions might be just the ticket to get this settled by the SCOTUS, but given the decisions of the current SCOTUS, I would not plan any celebrations.

[ladder13]

Originally Posted by Erich

Circuit split as of today, compliments of the Third:
3rd Circuit Federal Appeals Court Says Large-Capacity Magazine Bans Are OK – Reason.com
(Is that a Mak mag filled with blanks?)

Good news! Onward.

[TTSH]

Originally Posted by stansdds

Split circuit court decisions might be just the ticket to get this settled by the SCOTUS, but given the decisions of the current SCOTUS, I would not plan any celebrations.

Originally Posted by ladder13

Good news! Onward.

Yeah, good news only if Roberts doesn't decide to flip again and go anti on us.

[bushmaster1313]

IMHO: (A) the Supreme Court does not want to hear a magazine case and (B) those in favor of protecting the Second Amendment should steer clear of this issue at the Supreme Court for the time being.

(A) The Supreme Court has shown no interest in taking up a Second amendment case in the past decade. There is no reason I like for why a magazine case would get heard.

(B) There are two reasons we do not want this magazine case at the Supreme Court. First, the current make-up of the Court is not majority gun-friendly. With one more originalist appointment the make-up would be a solid majority in favor of the 2A. Sometimes its good to be patient. Second, whether we like it or not, reasonable minds can differ about whether a "large capacity" magazine is protected by the Constitution. A person with an AR-15 and a satchel of 10 round magazines is certainly capable of exercising their right to keep and bear arms. A decision in this magazine case could easily go the "wrong" way and have far reaching negative consequences for the 2A.

[bushmaster1313]

Petition for en banc hearing by the Ninth Circuit was filed by California in the California magazine case on August 28, 2020

Copy of the en banc petition here

Therefore, there is no mandate coming soon from the Ninth Circuit.

[stansdds]

Originally Posted by bushmaster1313

IMHO: (A) the Supreme Court does not want to hear a magazine case and (B) those in favor of protecting the Second Amendment should steer clear of this issue at the Supreme Court for the time being.

(A) The Supreme Court has shown no interest in taking up a Second amendment case in the past decade. There is no reason I like for why a magazine case would get heard.

(B) There are two reasons we do not want this magazine case at the Supreme Court. First, the current make-up of the Court is not majority gun-friendly. With one more originalist appointment the make-up would be a solid majority in favor of the 2A. Sometimes its good to be patient. Second, whether we like it or not, reasonable minds can differ about whether a "large capacity" magazine is protected by the Constitution. A person with an AR-15 and a satchel of 10 round magazines is certainly capable of exercising their right to keep and bear arms. A decision in this magazine case could easily go the "wrong" way and have far reaching negative consequences for the 2A.

Exactly! Should the SCOTUS take up this issue and deem magazine capacity limits constitutional, we could see limits of 5 or fewer rounds in a magazine by states linking magazine capacity to hunting laws that limit the number of rounds.

[ladder13]

And if things go south this Nov, you think SCOTUS will be more gun friendly, considering retirements?

[HorizontalMike]

Originally Posted by stansdds

Exactly! Should the SCOTUS take up this issue and deem magazine capacity limits constitutional, we could see limits of 5 or fewer rounds in a magazine by states linking magazine capacity to hunting laws that limit the number of rounds.

Wow, if that will be the case then my 8rd moon-clips/magazines for my 627PC, or 7rd moon-clips/magazines for my 686+ will end up being illegal as well!... /s

I would venture to opine that moon-clips will be argued in court to be the legal equivalent to a rifle/pistol magazine, at some point in the future...

[Racer X]

Maybe if they limited the criminals, they could make some headway.....

[stansdds]

Originally Posted by HorizontalMike

Wow, if that will be the case then my 8rd moon-clips/magazines for my 627PC, or 7rd moon-clips/magazines for my 686+ will end up being illegal as well!... /s

I would venture to opine that moon-clips will be argued in court to be the legal equivalent to a rifle/pistol magazine, at some point in the future...

Except, so far, legislation has only involved detachable magazines. Fixed box, tubular (except for extension tubes), and revolvers have been exempt.

[fordson]

Without getting political, whether your Personal firearms are/could be affected or not is not the issue. It’s the concept of any additional limitations on firearm ownership that should concern us all. We are all in this together, 30 round mag or 3 round moon clip.

[HorizontalMike]

Originally Posted by stansdds

Except, so far, legislation has only involved detachable magazines. Fixed box, tubular (except for extension tubes), and revolvers have been exempt.

I agree, "...so far..." IMO, stranger things have already been argued/passed in our past... such as "a pistol grip" equals "assault" weapon/rifle...etc. Also, differentiating between one trigger pull and one discharge, when both revolvers and pistols meet that criteria... Moon-clips can/could be defined as "removable" aka "detachable" reloading devices...

Not arguing here, just being a bit fearful of our future 2nd Amendment rights defined.

[stansdds]

Originally Posted by fordson

Without getting political, whether your Personal firearms are/could be affected or not is not the issue. It’s the concept of any additional limitations on firearm ownership that should concern us all. We are all in this together, 30 round mag or 3 round moon clip.

Oh, I agree 110%! It's the slippery slope of limiting or banning just one or two things, for the safety of everyone... for now... but then later, the restrictions expand.

[Pete99004]

There is a good video just out that discusses the 17 states that are supporting California's appeal - many of these states do not currently have limitations on mag capacity, but since they are supporting Cal's efforts they may be indicating that they will also be putting in limitations in the future. It's a video you should watch IMHO - your state may on this list.

Pete99004

17 STATES SUPPORTING CA'S MAG BAN!!! - YouTube

[Rastoff]

Originally Posted by Pete99004

There is a good video just out that discusses the 17 states that are supporting California's appeal - many of these states do not currently have limitations on mag capacity, but since they are supporting Cal's efforts they may be indicating that they will also be putting in limitations in the future. It's a video you should watch IMHO - your state may on this list.

Pete99004

17 STATES SUPPORTING CA'S MAG BAN!!! - YouTube

Yes, people need to pay attention and take action in their own states.

However, what this really tells me is there are 32 states that don't support CA's mag ban. That should speak louder than the minority that do support it.

[GaryS]

I have to wonder if once Judge Barrett become Justice Barrett if ban states will pressure CA NOT to try to bring this case to the Supreme Court?

That would likely include not pursuing a request for an en banc rehearing.

Upholding this decision would be bad for those magazine ban states, but good for the citizens therein.

[Racer X]

One thing that is baffling is that only a few percent of all firearms homicides are with rifles. So why a ban on long rifle mags? FBI — Expanded Homicide Data Table 8

[Hondo44]

Originally Posted by Racer X

One thing that is baffling is that only a few percent of all firearms homicides are with rifles. So why a ban on long rifle mags? FBI — Expanded Homicide Data Table 8

We must try to always keep in mind at all times that none of this has anything to do with firearms crimes, safety, logic, nor common sense. It's all only about political idealism, power, and control!

Firearms crime stats, safety stats, logic, and common sense are tools that we must use to defeat this nonsense! And with more non-activist judges on the bench it works better and better, thank goodness!

[BC38]

Originally Posted by Racer X

One thing that is baffling is that only a few percent of all firearms homicides are with rifles. So why a ban on long rifle mags? FBI — Expanded Homicide Data Table 8

Because they look SCARY - which makes a restriction on them more palatable to the masses. Of course once they have a ban on "high" (actually NORMAL) capacity magazines for scary black rifles in place it is a much smaller and easier step to impose them on other kinds of guns, including handguns.

[stansdds]

Originally Posted by Racer X

One thing that is baffling is that only a few percent of all firearms homicides are with rifles. So why a ban on long rifle mags? FBI — Expanded Homicide Data Table 8

Because they look scary and look a lot like the select fire carbines and rifles issued in the military. The battle cry here in Virginia is that weapons of war (military style weapons) have no place on our streets. It's all about optics and catch phrases and can (will) open the door to bans encompassing even more firearms and ammunition.

[CH4]

Hmm
With the likelihood of SCOTUS getting another, solidly conservative justice it may cause certain AGs and circuit courts to rethink their odds of success before risking a case being overturned by SCOTUS and having an unfavorable outcome incorporated against all 50 states and DC.

[ladder13]

Looks like next year will be the time to bring 2A cases to the court.

[banger]

Originally Posted by ladder13

Looks like next year will be the time to bring 2A cases to the court.

Yes, but you can't make the court take up the cases.

There have been many "good" cases over the years that the Supreme court simply refused to hear.

[tops]

Originally Posted by Racer X

One thing that is baffling is that only a few percent of all firearms homicides are with rifles. So why a ban on long rifle mags? FBI — Expanded Homicide Data Table 8

I wasn't around until 1941 but I've read it was machine guns in the 30s. I remember the 60s and it was cheap pistols. Now it's large mags and auto rifles. They just do one step at a time. They know if they do enough inches eventually it will be a mile. Larry

[stansdds]

The issue with machine guns in the 1930's was due to organized crime and the prohibition on alcoholic beverages. I'd wager that had prohibition not been enacted, there would not have been such violence.

Prohibition gives rise to the black market.
The black market goes under the control of criminal organizations.
Criminal organizations battle and wage war over territory.

[SpikeIDMT]

Originally Posted by bushmaster1313

Petition for en banc hearing was filed by California AG on August 28, 2020

So, nothing further? No latest news on this?

Are gun owners running out and buying high cap mags, legally?

[CH4]

With SCOTUS likely to go 6-3, Bacerra and the 9th may rethink their position. If SCOTUS overturns Duncan, it would incorporate their silliness against ALL the states and DC.

[bushmaster1313]

Originally Posted by SpikeIDMT

So, nothing further? No latest news on this?

There is a website (Thank you Michel & Associates, P.C. !!!) with links to documents from the Docket at the 9th Circuit and the District Court:

Links to 9th Circuit and District Court documents

Here is the brief of the Pro-2A Plaintiffs saying the full 9th Circuit should not rehear the case

Brief of the Pro-2A Plaintiffs saying the full 9th Circuit should not rehear the case

To me, this is a dangerous case to the 2A because the full 9th Circuit could decide to apply intermediate scrutiny, reverse the panel and uphold the statute on that basis. The Supreme Court could then affirm the full 9th Circuit on that basis, making intermediate scrutiny the law and undermining all future attempts to overturn restrictive firearm legislation. A very bad result for the 2A.

[Erich]

I am.

That could happen, but it seems unlikely given the present U.S. S.Ct.

[GaryS]

I don't know if those are typos or not. Strict scrutiny works in gun owners favor as it requires courts to look at the Constitution and the Bill of Rights in the most literal sense.

Intermediate scrutiny is a lower standard and has often been applied to 2A cases with bad outcomes for our side. It's a lower standard and gives judges "more flexibility" to interpret the framers intent.

It's been applied most often to 2A cases which leads some legal scholars to refer to the 2A as a second class right.

IANAL, but I read a lot of these cases and discuss them with people who ARE lawyers.

Originally Posted by bushmaster1313

There is a website (Thank you Michel & Associates, P.C. !!!) with links to documents from the Docket at the 9th Circuit and the District Court:

Links to 9th Circuit and District Court documents

Here is the brief of the Pro-2A Plaintiffs saying the full 9th Circuit should not rehear the case

Brief of the Pro-2A Plaintiffs saying the full 9th Circuit should not rehear the case

To me, this is a dangerous case to the 2A because the full 9th Circuit could decide to apply intermediate scrutiny, reverse the panel and uphold the statute on that basis. The Supreme Court could then affirm the full 9th Circuit on that basis, making strict scrutiny the law and undermining all future attempts to overturn restrictive firearm legislation. A very bad result for the 2A.

[Fastbolt]

As you can probably tell from the first link above, there's a very long list of anti-gun groups and states filing Amicus Briefs in support of the Appellant's petition for rehearing en banc.

They're basically pulling out all the stops to try and prevent CA from losing this case, since losing it might result in the Supreme Court deciding to accept the case (if CA fights a loss in the 9th), and that might result in a S.Ct. decision that might start causing some laws in other states to be thrown out.

While this case has naturally become a big deal for CA's citizens, it's also surprised other states (in other circuits) by becoming a potentially big deal that could reach the highest court and affect the whole country.

Who knew?

[bushmaster1313]

Although I am a supporter of the 2A, I try to be honest in my assessments. When it comes to Large Capacity Magazines ("LCMs") it is important to realize that there is a big difference betwen banning LCMs and banning handguns. In the Heller case (total handgun ban violated the Constitution), I think the victory for the 2A turned on the fact that 5 Justices agreed that banning handguns prevented some people from exercising their rights under the 2A. On the other hand, banning LCMs does not prevent anyone from owning a semi-auto firearm along with multiple 10 round magazines. It is reasonable to conclude that the difference between allowing and banning LCMs is merely a difference in degree, not a difference in kind. Because banning LCMs does not ban a whole class of ordinary weapons and does not completely extinguish the 2A rights of anyone, it is entirely possible that all 9 of the present Supreme Court Justices are willing to let the People of California decide whether they do or do not want LCMs in their state.

[Hondo44]

The answer is clear when we cut thru all the chaff and answer these two basic questions about our 2nd A right:

1. “Just exactly against which enemy is the 2nd amendment’s right to keep and bear arms?”

We should know the answer because I learned it years ago in Jr. High School long before I even knew what the Federalist Papers were. Of course that’s when schools taught true history, not revisionist history.

The “enemy” is the US GOVERNMENT. The protection was from tyrannical government. Remember having just fought and died to throw off the tyranny of the king, our forefathers established the 2nd A specifically as insurance against our own government should it become tyrannical! So it’s not to protect us against outside enemies, it’s for we the people’s rebellion were it to become necessary again, as it did in 1776.

2. ”What is a well regulated militia?” It cannot possibly be the National Guard which is PART OF THE GOVERNMENT; that would be absolutely ludicrous (so foolish, unreasonable, or out of place as to be amusing; ridiculous)!

A well regulated militia is of the people and for the people separate from the government!

So just exactly how does diminishing the ability of our militia right by limiting magazine capacity uphold the 2nd A?

Of course it doesn't! It's just plain and simple unadulterated incrementalism to curb our 2nd A right a little piece at a time, period. That's how "rights" are lost over time. And it's what "merely a difference in degree" actually means no matter how you slice it!

How stupid are they to presume we're so stupid as to not recognize incrementalism when we see it?

I sincerely hope the 9th en blanc hears and overturns the decision. I don't think there's a better time in history for this case of "incrementalism" to be accepted and decided by the Supremes. It's an even more originalist* vs. activist court than decided Heller. Any national repercussions will be a bonus, and about time.

*In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".

That's the only interpretation possible w/o legislating from the bench!

[Muss Muggins]

I take a shorter route to the constitutionality of banning LCM's. It has already been done successfully . . .

Originally Posted by bushmaster1313

Although I am a supporter of the 2A, I try to be honest in my assessments. When it comes to Large Capacity Magazines ("LCMs") it is important to realize that there is a big difference betwen banning LCMs and banning handguns. In the Heller case (total handgun ban violated the Constitution), I think the victory for the 2A turned on the fact that 5 Justices agreed that banning handguns prevented some people from exercising their rights under the 2A. On the other hand, banning LCMs does not prevent anyone from owning a semi-auto firearm along with multiple 10 round magazines. It is reasonable to conclude that the difference between allowing and banning LCMs is merely a difference in degree, not a difference in kind. Because banning LCMs does not ban a whole class of ordinary weapons and does not completely extinguish the 2A rights of anyone, it is entirely possible that all 9 of the present Supreme Court Justices are willing to let the People of California decide whether they do or do not want LCMs in their state.

[bushmaster1313]

Originally Posted by GaryS

I don't know if those are typos or not. Strict scrutiny works in gun owners favor as it requires courts to look at the Constitution and the Bill of Rights in the most literal sense.

Intermediate scrutiny is a lower standard and has often been applied to 2A cases with bad outcomes for our side. It's a lower standard and gives judges "more flexibility" to interpret the framers intent.

It's been applied most often to 2A cases which leads some legal scholars to refer to the 2A as a second class right.

IANAL, but I read a lot of these cases and discuss them with people who ARE lawyers.

Thanks

Yes a typo. I meant to say Supreme Court could make intermediate scrutiny the law. A very bad result