I just saw this: BREAKING: 9th Circuit Holds "Large Capacity" Firearm Magazines Protected by 2nd Amendment, Affirms Lower Court Ruling - Firearms Policy Coalition

Basically the 9th Circuit has ruled that limiting magazines to 10 rounds was unconstitutional because mags with higher capacity are a normal use item by people who aren't breaking the law.

As if 2020 wasn't weird enough, now the 9th circuit has ruled in favor of a pro-2A lawsuit. I just saw a pig fly by and I'm waiting for Godzilla to actually rise from the ocean.

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Wow!

This circuit's composition has been slowly changing, with the current president working to level out the ideological composition.

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Well looks like the 9th court struck down the 10 round magazine limit. Wonder what that means for those of us stuck in other states with 10 round limits?

Appeals court ends California ban on high-capacity magazines

Means nothing outside the 9th Circuit.

Link to the Decision

District Court Judge ruling the ban unconstitutional
Roger T. Benitez appointed by George W. Bush

Appeals Judges ruling ban unconstitutional:

Consuelo M. Callahan appointed by George W. Bush
Kenneth K. Lee Appointed by Donald Trump

Appeals Judge saying ban was constitutional:
Barbara M. G. Lynn appointed by Bill Clinton

Unfortunately (and this is a legal not a political comment) it does matter who you get as your Judge in the District Court or as Judges on the Appeals Panel.

And who appointed the Judge often indicates how that judge will rule.

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finally the iron curtain is lifted just a little in California

Unless the make-up of the full Ninth Circuit Court of Appeals has changed, the full en banc Court will reverse the three judge Appeals Panel, reinstate the Ban and the Supreme Court will decline to hear the case

Also, until the Court of Appeals issues a Mandate making its decision final, I would not rush out and bring a greater than 10 round magazine into California.

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Interim ruling. Plaintiff will appeal to the full circuit where it will be reversed. Just the sad facts as I see’um.

Godzilla won't be coming because I remembered to feed him properly last time I was at the coast.

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A step in the right direction.

District Court Judge Rober Benitez was the judge that initially ruled that banning "large capacity magazines" was unconstitutional based on the Second Amendment. If you have not read his entire ruling, here is a link to it. It is long, but man, this guy understands what it is all about. It is a fascinating read.
https://d3uwh8jpzww49g.cloudfront.ne...tiffs_-msj.pdf

The 3 judge panel of the 9th Circuit upheld Judge Benitez' ruling. However, it may not be over yet. The case could be appealed for an en banc review of the entire 9th Circuit, or it could be directly appealed to the U. S. Supreme Court, or it could be accepted by the California Attorney General and allowed to stand. We will have to wait and see what transpires.

In the meantime, this is good news.

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We've got a foot in the door now. Let's just hope it continues and eventually involves the other states and their restrictions.

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I think that President Trump's judiciary appointments are beginning to bear fruit......it wasn't but a few years ago that the 9th Circuit Court was a fruitcake of liberal judges.

Don

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There have been other instances of a favorable 3-judge panel ruling from the 9th Circuit that have subsequently been overturned by the full circuit. If that happens in this case, I have hope that the U. S. Supreme Court will hear an appeal. The original District Court ruling by Judge Roger Benitez was, imo, brilliant.

If you have not read his opinion on the case, you can find it here:
https://d3uwh8jpzww49g.cloudfront.ne...tiffs_-msj.pdf

Well worth the read.

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Keep in mind that a district court's decisions apply only to that district. And it could well be appealed to the Supreme Court where it could be affirmed, overturned (or the SC could decide not to hear the case). There have been some more conservative judges appointed to the 9th District recently. For some time, the 9th was considered a solid liberal bastion, also I believe it had more decisions overturned on appeal by the Supremes than any other district court.

Good news for a change!

Not even a mention in most of the media. As the old saying goes “elections have consequences”. Remember this.

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So, practically speaking, we haven’t really gained anything as it will be appealed to the full court who will overrule the three judge
panel.
Sight.............

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I saw this morning a number of e-mails that various online stores were shipping to Cali. Now I know why. Hooray!

The importance of appointing federal judges is overlooked by many people. As long as they are in good standing, a federal judge may serve a life term. The 9th circuit has been flipped with 10 successful appointments by the current administration. These 10 appointees will impact the 9th circuit decisions for many years to come.

Not so fast. Benitez still has to lift the stay, well it gets complicated for my non-legalese self. But the 9th circuit came down in our favor today. Supposedly the CA DOJ and something en banc, it may be until the 28th before we can actually get to overwhelm the gun parts suppliers again like we did for one week last year. And if the DOJ is successful in their appeal then we are back to square one in the messed up way I understand it in a hurry.

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9tenz

Did Diana Ross write the opinions?

I don't believe they are shipping standard caps yet. Maybe taking orders? But I think there is going to be a disappointment when they get the message that the order will be on hold. We'll see...

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9tenz

So true. Makes this old guy very happy.

If in California, I’d be ordering!

Attached Images

7AA9C1A5-FB7A-448F-ABCC-B253CBCEFE85.jpg (59.9 KB, 89 views)

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triggers dog-pile egomaniacs

And hopefully gets a bunch more and right this ship.

Get out and vote!

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Although this is nice, it is not the end of the 9th Circus's decision regarding magazine capacity limits. This decision gets appealed to the full 9th Circus Court, there it is more likely to be upheld.

Regardless of the outcome, it will then go to the SCOTUS, where it will either be denied a hearing or, if heard, the current make up of the SCOTUS may put the final stamp of approval on magazine restrictions.

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

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9tenz

Unfortunately, it's a drop in a bucket that has a hole in the bottom.

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Indeed, but the 9th district covers these states/holdings:

Ninth Circuit Districts
1. Alaska
2. Arizona
3. Central District of California
4. Eastern District of California
5. Northern District of California
6. Southern District of California
7. Guam
8. Hawaii
9. Idaho
10. Montana
11. Nevada
12. Northern Mariana Islands
13. Oregon
14. Eastern District of Washington
15. Western District of Washington

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As a Californian I was all ready to exercise my rights again. I wanted a couple of hi cap mags for a CZ 75 Compact. None to be found.
So even if some retailers are willing to ship, finding inventory in this time of massive shortages in guns and ammo and accessories like spare magazines is another story.

I sold my CZ-75 compact, and I may have another brand new factory magazine, never used.

I will need to locate it though. Please PM me if you're interested in it.

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So....rarely do I partake in legal discussion on the internet, but I will put forth a few items to ponder.

I read where many speculate that the overturn of the "ban" will be appealed and reversed by the en banc Court. There is no right of appeal to the "en banc" Court, and an en banc appeal may be made by one of the parties or sua sponte by one of Appeals Court Judges (that heard the case). In order for the Court to grant an en banc hearing, a majority of the active, non-recused Judges must vote in favor of it.

En banc calls, including sua sponte en banc calls, are a common occurrence. In an average year in the Ninth Circuit, there are approximately 1,500 requests by parties for rehearing en banc. Typically, there are approximately fifty requests each year by a judge for a vote on whether to rehear the case en banc. On the average, the Ninth Circuit hears between 15-25 en banc cases a year.

Personally, in this case I would love for it be heard en banc. In the event our side loses, they we can get it before SCOTUS. The 9th opinion was solid and I'd love for there to be national ruling.

One can be assured that many (if not most) of the "gun control" legal advocates will weigh in and tell the Ca AG to let it stand. Its a very narrow ruling that only effects magazine capacity in (effectively) a few states. The danger with appealing it is a wide national ruling, which I believe that SCOTUS is ripe for. Personally, if I was on the gun control side, I'd lay low until I see whom Justices Ginsburg and Thomas are replaced by.

As a side note, the dissenting judge was only sitting by designation (filling in) and is from TEXAS. Shameful.

edited to add: In the 9th, there are 29 judges, but an en banc panel (normally) only consists of 11. So literally no one can predict what a 9th en banc panel might rule, simply because no one knows whom would be assigned to such an en banc panel. President Trump has appointed 10 of them.

Lets hope that this Federal Court decision helps to get things on track in other courts pertaining to 2A issues.

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California has 14 days to file a petition for an en banc hearing
Then the procedure at the court itself is very funky:

http://michellawyers.com/wp-content/...dure-Guide.pdf[/quote]

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

Attorney General Becerra Continues Defense of California’s Ban on Acquisition and Possession of Large-Capacity Magazines | State of California - Department of Justice - Office of the Attorney General

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This one may be headed to our SCOTUS.

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What could possibly go wrong?

In official legal terms, the status of magazine restrictions in California is "A Mess."

Given the uncertainty, I would not want to do anything causing me to have to explain why a magazine holding over 10 rounds was not illegal.

Be careful out there.

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I am not so sure that the odds of an "en banc" review are all that high, nor are the odds of a reversal all that high. The 9th Circuit (NOT District) is so big that not all the judges would be on such a panel. I can't recall the total # in the circuit, but only 11 would be on the panel. Given the change in the composition of the circuit in the last few years, the old experience of all favorable rulings being overturned by an en banc court is not near as likely.

The process will not be rapid, that's true. The outcome is not a sure thing. I read the majority opinion on Friday, and the opinion is similar to Judge Benitez opinion at the District Court, looking heavily at history and finding that the magazines are well established as lawful going back even to pre-Revolutionary times.

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I'm not sure it'd make it to the Supreme Court if it gets appealed past the en banc panel. They've rejected a bunch of 2A cases recently, if I'm not mistaken. Not sure what would make this case any more likely, but I'll be the first to admit I'm no legal eagle.

Just my layman's opinion.

^^^^^^^^^^^^
This

I think there’s a good chance of SCOTUS granting cert if the 9th goes en banc again to overturn itself. Knowing that the AG may choose to back off instead of risking an unfavorable ruling by SCOTUS, thus upholding the Benitiz ruling which would incorporate all 50 states and DC.

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Unless I am sorely mistaken, SCOTUS is even less interested in taking a magazine case than in taking a right to carry case.

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I don't know what's going to happen. I can't even speculate.

It's my understanding that in order to appeal a court decision, there must either be new evidence or that court must have made a mistake in the proceeding, i.e. a mistake in law. So far, all the 2A cases that have been ruled on and appealed, here in CA, have had neither new evidence or proceeding issues. Therefore, if the 9th circuit were doing their job correctly, they would have refused to accept these appeals.

Our system of justice is broken when the judges make decisions based on political motive rather than law.

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Right now, the Ninth Circuit is 24 judges appointed by Carter, Clinton, Obama, and 24 judges appointed by Nixon, Reagan, Bush I, Bush II, Trump. We have a tie.
However, a number of those have taken senior status, which means they cannot sit en banc, and without them, judges who can sit en banc appointed by Dems =15, by Reps = 13, with 1 vacancy.
However, to keep an en banc hearing from becoming too unwieldy, the court provides for a limited en banc review by the Chief Judge and a panel of 10 randomly selected judges.
The Chief Judge is a Clinton appointee, so it's back to a crapshoot. Cross fingers and toes, folks.

Not quite.

Appeals are decided as a matter of law. A single appeal is a matter of right.

There are two basic grounds to win an appeal:

1) Error of law. When an appeal is won on the basis of an error of law, the appeals court finds that the lower court made an error interpreting or applying the law. For example. A district court could find that a law did or did not violate the Constitution. On appeal the appeals court would take a fresh look at the law, and determine whether it did or did not violate the Constitution. This is called de novo review.

2) Clear error of fact. When there is no error of law, and the Judge or jury at the trial makes a factual determination based on the evidence at trial, the judgment of the trial court will survive appeal unless the court of appeals finds as a matter of law that no reasonable judge or jury could decide the facts the way it did on the evidence that was before the court. This is sometimes called a clear error of fact. For example, the murder defendant might have had a good motive, but all of the evidence puts the defendant far away from the scene of the crime at the time of the murder, he is convicted anyways.

Second Amendment cases are almost always decided as a matter of law. The question is usually: Does this gun control law violate the Constitution? Such a question is always allowed a single appeal as a matter of right. The Supreme Court does not have to agree to decide an appeal from a court of appeals. The Supreme Court declines to hear almost all of the cases it is asked to decide.
Pop
When thee is new evidence, such as when DNA evidence is found which shows that the crime was committed by someone other than the defendant, the issue is whether the trial should be reopened. If the trial is not reopened, the person convicted can appeal on the ground that as a matter of law the trial court made a mistake in not reopening the trial.

The above is a simplification designed to get across the basic differences between an error of law a mistake of fact and new evidence.

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Thanks for the clarification. So, how would/could this proceed for the CA law that limits magazine capacity? Would the basic question of limiting a magazines capacity be an “error of law” or the limit of 10 be a mistake of fact, as in why 10 and not 9 or 11?

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I think the appeal is about questions of law:
Does the Constitution protect magazines?
What level of protection does the Constitution provide?
Does the magazine ban go beyond what the Constitution allows?

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It’s all very clear to me.

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

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The Zombies can't be far behind !
Gary

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[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.

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