SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?

Reposted from another thread due to pertinence to this thread discussion - https://www.thehighroad.org/index.p...and-receiver-rule.909970/page-2#post-12404070

This is the "High Road" and in "High Road" fashion I think we owe ourselves to clarify some things. We should set an example for the rest of gun forum community as to what constitutes arms, firearm, receiver, frame, upper, etc. for the benefit of the Second Amendment that many minutemen, colonial army Rangers and soldiers died for and the preservation of gun rights not just for us, but to our children and their children.

It is year 2022 and we are seeing the unfolding of what our founders framed back in 1776 because of having freshly defeated the tyranny of British royal rule imposed on the freedom and liberty of the colonists for taxation without representation (Being treated as second class royal subjects without having a voice/representation in royal court). And our founders feared tyranny could not only come from foreign powers but tyranny could also come from domestic powers such as local/state/federal governments and agencies to impose on the rights of the citizens and added the Bill of Rights to ensure protection of our rights and viability of the Constitution.

And in 2022, we are now fighting for our minority gun owners' rights in court as we speak relying on the Supreme Court/the final voice for the judicial branch to be the "backstop" for our freedom and liberty as specified in the Bill of Rights, the Second, Fourth and Fourteenth amendments to not be treated as "second class" citizens with "second class" rights, the same reason why our founders fought against the British royal tyranny.

And for the recent Supreme Court Bruen ruling, justice Thomas reminded us that the Second Amendment "is not a second class right" to reaffirm our right to self defense in "modern world" with "modern arms" is just as valid as First Amendment being a first class right with protection applied to "modern forms" of communication like email and texts to exercise free speech.

As justice Gorsuch stated, our Constitution has been updated by "We the People" to address "modern" application of Constitution in a modern world by the way of amendments. That's why women can now vote and slaves are free with the same rights as slave owners, including being gun owners - https://www.thehighroad.org/index.p...with-question-on-the-second-amendment.856201/


The late justice Ginsburg defined, “... natural meaning of ‘bear arms’ is to 'wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.'” - https://fedsoc.org/commentary/publications/concealed-carry-and-the-right-to-bear-arms



The Supreme Court explicitly included both concealed carry and open carry in its definition of “bear arms".

So in 2022, "We the People" have the right to self defense at home and outside of home using "modern" types of arms just as we have right to free speech using "modern" forms of communication at home or outside of home using "modern" devices such as cell phones/tablets/laptops, etc.

And just as there are "modern" devices and features to help those with disabilities like large print, glasses/contacts and easier to use handles and wheelchair ramps, there are "modern arms" devices to help those with disabilities (vision, strength, dexterity, etc.). You know disabled/physically challenged gun owners are a subset of minority gun owners ... And I am sure they also have the right to self defense. How many of us use optical aids like scopes, red dot, fiber optic sights, night sights, etc. because of vision issues? So why is there tyranny against other "modern" physical aid technologies like pistol brace, suppressors, binary triggers and other shooting aids by our governments/agencies?

So who defined what a "firearm" is?

Congress ... law makers ... the legislative branch wrote the bill and signed into law by the president, the executive branch under the Gun Control Act.




And it was the representatives of "We the People" who carefully and precisely defined what constitutes firearm/receiver.

So we are not helping by misusing terms and should start using "firearm" interchangable with "receiver". And government agencies like ATF cannot change/redefine what the "We the People" so carefully/precisely defined what is a firearm. For VanDerStok v. Garland (ATF frame or receiver rule) case where judge granted a limited preliminary injunction, this is what he wrote - https://www.thehighroad.org/index.php?threads/17-states-join-goa-gof-and-sue-atf’s-new-firearms-rule-on-80-percent-kits.908730/#post-12400399

• Judge ruled what the ATF did was invalid and wrote, "The Final Rule’s redefinition of ‘frame or receiver’ conflicts with the statute’s plain meaning ... The definition of ‘firearm’ in the Gun Control Act does not cover all firearm parts. It covers specifically ‘the frame or receiver of any such weapon’ that Congress defined as a firearm. 18 U.S.C. § 921(a)(3)(B). That which may become a receiver is not itself a receiver.”
• Judge ruled parts that may become a receiver is not a receiver/firearm in "parts" state
• ATF's final "technically corrected" rule on frame or receiver redefined what a firearm is and tarnished Congress' carefully crafted definition of firearm
• ATF's redefinition of firearm unlawfully expanded ATF's authority beyond the boundaries set by the Gun Control Act.
• Judge stated Gun Control Act's precise wording demands precise application and Congress could have expressed such language regarding parts and parts kits but even being aware of such, Congress decided not to and judge decided Tactical Machining is entitled to a preliminary injunction and can continue to operate business as usual free from ATF's enforcement of the final rule which is unlawful redefinition

And the Supreme Court does not use the term "assault rifle" or "assault weapon" which are based on features/furniture. Instead, courts and Supreme Court have used the term "modern rifle" to better reflect "modern" evolution of firearm technology like magazine fed semi-auto handguns and rifles just as "modern" evolution of free speech like email and texts.


Judge Kavanaugh (now justice Kavanaugh) wrote - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12395913

Even Associated Press finally got the "modern rifle" memo and provided this guidance to all the journalists to stop using "assault rifle/weapon" and instead use "semi-automatic rifle" - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12380551


And judge Benitez in Miller v Bonta clarified use of "modern rifle" compared to "traditional rifle" used by civilians "in common use" for lawful/sporting/self defense purposes.

And with Bianchi v Frosh (MD assault weapon ban), Miller v Bonta (CA assault weapon ban), Duncan v Bonta (CA magazine ban) and other cases, improper use of terms like "assault weapon/rifle" and "large capacity magazine" may finally be put to consititutional rest - https://www.thehighroad.org/index.p...-second-amendment.856201/page-2#post-11375346

So, we should consider/use:

• Start using the term "modern" whenever talking about new firearm technologies and devices
• Reference "modern" types of firearm technology/devices for Second Amendment in the same manner as "modern" forms of communication for First Amendment
• Second Amendment is not a "second class" right just as First Amendment is not a "second class" right
• Just as emails/texts are protected under the First Amendment, semi-auto magazine fed handguns/rifles are protected under the Second Amendment
• "Modern" ammunition storage devices called magazines are "arms" as ruled by courts/Supreme Court and protected by the Second Amendment
• "Large capacity magazine" is an arbitrary term as there is no definition/standards for low capacity magazines with different states arbitrarily using 7-10 round limits and instead "standard capacity magazine" or "commonly used capacity magazine" should be used
• "Modern" semi-auto rifles are not "Assault weapon/rifle" which are misused terms that are "Highly politicized terms" as stated by Associate Press and should not be used
• Definition of "firearm" was defined by "We the People" via Congress under the Gun Control Act and "receiver" means "firearm"
• Only "We the People" via Congress can change the definition of what is a "firearm/receiver"

Update to post #189 for Duncan v Bonta (CA magazine ban case) - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12391171

As expected 9th Circuit En Banc panel vacated and remanded the case down to the district court for judge Benitez to reconsider - https://michellawyers.com/wp-content/uploads/2022/09/2022-09-23-Order-Vacating-Remanding.pdf

Judge Benitez will likely rule the case unconstitutional again post Supreme Court Bruen ruling but this is "stall tactic" CA is using to delay the case, just like Miller v Bonta.

So instead of 9th Circuit making a final ruling in line with Supreme Court's Bruen ruling, the case will be kicked back down to the district court for judge Benitez to rule the case unconstitutional again; then for the case to be appealed back up to the Supreme Court to buy some time while the "antis" hope the Supreme Court bench make up will change (Not likely). But that's the only option left for the "antis" and looks like that's what is happening.

Current running updates on Duncan v Bonta:

July 2022: Initial responses to case being vacated and remanded from the Supreme Court back to 9th Circuit - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-7#post-12366383

August 2022: 9th Circuit En Banc panel requesting supplemental briefs - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-7#post-12373032

August 2022: 9th Circuit supplemental briefs review and considering sending the case back to judge Benitez for reconsideration - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12391171

September 2022: 9th Circuit En Banc panel vacated and remanded case back down to district court for judge Benitez to reconsider post Bruen ruling.

How judge Benitez will likely rule on the remanded case - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12377015

Summary of judge Benitez original ruling indicating why reconsideration will likely end up finding CA magazine ban unconstitutional post Bruen ruling application of "text and history" only - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12381111

Master Blaster said:

Instead our wonderful Court has eliminated the right of half of our population to control their own bodies without Government interference.

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Let's stay focused on OP of AW/magazine ban.

Thank you.

Update to post #203 for Duncan v Bonta (CA magazine ban case) - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-9#post-12416995

9th Circuit En Banc panel vacated and remanded the case down to the district court for judge Benitez to reconsider and on 9/26, judge Benitez ordered clarifying preliminary injunction preventing law enforcement from taking any action against Californians in possession of larger than 10 round capacity magazines and expanded protection to magazines obtained during "Freedom Week" - https://michellawyers.com/wp-conten...-Mandate-Continuing-the-Prelim-Injunction.pdf

Attorney review and discussion of 9/26 judge Benitez order - https://rumble.com/v1lspwp-say-goodbye-to-the-california-large-capacity-magazine-ban.html

• CA's ban on larger than 10 round capacity magazines is likely to end in December 2022
• As expected, judge Benitez is taking the reign of the case really fast
• Judge Benitez's 9/26 order expands preliminary injunction to larger than 10 round capacity magazines obtained during "Freedom Week" of 3/29/19 - 4/5/19 making them legal for possession and use (Certain restrictions under "Assault Weapon" ban may still apply pending Miller/Rupp v Bonta cases)
• CA has 45 days to file additional briefs considering post Bruen ruling by the Supreme Court
• Plaintiffs have 21 days thereafter to file responsive briefs to CA's additional briefs
• All the briefs are due beginning of December and judge Benitez stated he will decide based on the additional briefs and prior documents filed for the case
• Additional hearings may be ordered (Not likely)
• Judge Benitez is expected to expedite the case and rule once the additional briefs are filed
• CA gun owners may receive Christmas surprise gift from "Saint" Benitez with another "Freedom Week" before CA files another stay request after the ruling

ilbob said:

The BOR is not perfect.

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"Originalist" justice Gorsuch said our Bill of Rights is "excellent" - https://www.thehighroad.org/index.p...on-the-second-amendment.856201/#post-11324026

When the founders framed the nation to be governed by "We the People" instead of tyrants who imposed on the freedom/liberties of the people, Bill of Rights were ADDED to the Constitution so the will of the majority of larger coastal city states could not be imposed on the rights of minority smaller rural states back in 1776 and in 2022.

The Constitution has been "modernized" over time by "We the People" so now slavery is illegal, slaves and women can vote and both minority groups can enjoy equal rights of gun ownership not as second class citizens, but as equal first class citizens. (So antis trying to ban AW/magazines is sort of similar to majority banning slaves/women from voting ... majority imposing on minority rights ... I mean, gun owners are not second class citizens! )

In 2016, "We the People" chose a president using the election process framed by the founders so smaller rural states had equal voice under the Electoral College and with equal representation in Senate, appointed three "Originalist" justices to the Supreme Court to represent "We the People" from imposition of tyrannical law makers/executives at federal/state government levels. (But just as in 1776, the mob rule of majority would claim Electoral College should not be used and popular vote should be used to elect presidents ... Really? So why did our founders choose to go with Republic and Electoral College with equally representated Senate instead of pure Democracy and Popular Vote with representation in Congress solely based on population? That's right, they didn't want mob rule of larger coastal city states imposing on the rights/interests of smaller rural states. And that's why the Bill of Rights were added to the Constitution, so the mob rule of majority could not be imposed on the rights of the minority )

And in 2022, justice Thomas stated/implied in Bruen ruling that gun owners were not second class citizens and gun rights under the Second Amendment is not a second class right just as slaves and women are not second class citizens as they have equal voice under the First Amendment, a first class right applied to all versions of "modern" forms of free speech like email/texts. So should "modern" types of arms be protected under the first class right of the Second Amendment like semi-auto magazine fed firearms.

Justice Gorsuch explains why he is an "Originalist" - https://www.thehighroad.org/index.p...on-the-second-amendment.856201/#post-11231970

When asked what James Madison would say about today's government - https://www.thehighroad.org/index.p...on-the-second-amendment.856201/#post-11324026

And in 2016, "We the People" sent "Originalist" justices to the Supreme Court to check and balance the government powers to protect the minority rights of gun owners. And in 2022, the Supreme Court of the United States of America ruled for "We the People", just as our founders intended.

I am a proud "Originalist" at heart.

Long live the Republic.

Repost from "Legal" pertinent to Duncan v Bonta - https://www.thehighroad.org/index.p...ersal-14-aug-2020.873302/page-5#post-12421587

Dudedog said:

So if I understand this right SCOTUS remanded it back to the 9th who remanded it back to the District Court.
So assuming Judge Benitez rules against the ban again, do we go thru the same dance we went thru before?
IE: If we win State appeals to the 9th, if we win with three Judges in the 9th Sate requests en blanc, we lose the en blanc and it's back to SCOTUS?

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Yes, yes, maybe and yes.

But with a very DIFFERENT TWIST this time as the Supreme Court eliminated the "two step approach".

Disclaimer: I am not a lawyer, just a layperson.

With the two step approach eliminated under Bruen ruling, now the burden falls on the state of CA to argue/justify solely based on "text and history" of past court rulings. And since the Supreme Court already ruled "modern" arms such as semi-auto magazine fed handguns/rifles and "modern" technology of ammunition storage devices called detachable magazines, "arms" protected by the Second Amendment in Supreme Court's Caetano v Mass with lower courts following the same ruling such as Fyock v Sunnyvale and case at hand Duncan v Bonta, where judge Benitez so clearly pointed out ammunition/magazine capacity ban is recent infringement on the Second Amendment not supported by "text and history", thus does not pass constitutional muster. (Judge Benitez already ruled using the same approach as stated by justice Thomas in Bruen ruling)

• So essentially, CA has no other option then to hope to delay/stall the inevitable appeals to the SCOTUS and perhaps when that happens, the SCOTUS bench make up will somehow change from current 6-3 make up, which is unlikely.

• Likely judge Benitez will rule CA magazine ban unconstitutional AGAIN with consideration of post Bruen Supreme Court ruling and legalize purchase/manufacture/importation/possession/use of larger than 10 round capacity magazines starting another "Freedom Week" until CA requests a stay

• And when the case gets appealed to the 9th Circuit/En Banc, depending on the judges/panel selected (Remember hundreds of district/circuit court judges were appointed by Trump between 2017-2020?) may rule in line with SCOTUS/judge Benitez.

• Ultimately if the case gets appealed back to the SCOTUS, case will once again be reviewed whether the Supreme Court will take the case and if so, will rule ammunition/magazine capacity ban unconstitutional but this time for the entire nation, not just 9th Circuit states/territories ... Unless the SCOTUS bench make up changes somehow between now and then (Which is highly unlikely).

So the fate of ammunition/magazine capacity ban for 9th Circuit has been sealed and we will win at the District Court level, maybe at 9th Circuit/En Banc level and ultimately at the Supreme Court.

daverich4 said:

There’s just something about the fact that the 600,000 residents of Wyoming have exactly the same amount of say in choosing a Supreme Court Justice as the 48,000,000 residents of California. That’s not Democracy to me. If there’s tyranny involved in that process it’s not by the Majority.

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I live in CA and do not wish much of what happened in CA in recent decades "imposed" on other states.

The founders did not choose pure democracy for good reasons as even back in 1776, the majority mob rule of larger city states wanted to impose on the minority rights of smaller rural states, and after much debate and deliberation, "We the People" chose Constitutional Republic over pure Democracy.

Besides, the founders divided the legislative (law making) branch into House, which is based on population and Senate, which is equally represented regardless of population numbers to find a compromise between larger population states and representation of smaller states.

But the focus of this thread discussion is not about whether the founders should have chosen pure Democracy instead of Constitutional Republic, but the focus is on the Bill of Rights added to the Constitution to ensure the majority mob rule could not be imposed on the rights of the minority, which has been allowed by law makers and executives in recent decades only to be ruled unconstitutional by the courts and the Supreme Court.

To "modernize" the Constitution, "We the People" added amendments so slaves and women can now enjoy the same equal rights of voting and gun ownership. I am quite certain most "We the People" of all 50 states can agree with these amendments to the Bill of Rights and would support protection of these rights whether they are from more populous coastal states or rural midwest states.

So as well stated by judge Benitez in Duncan v Becerra ruling, there's more to CA ban on magazine - https://www.thehighroad.org/index.p...r-aw-magazine-ban.905531/page-8#post-12381111






BTW, "We the People" got judge Benitez appointed to the district court and "Originalist" justices to the Supreme Court.

What we are seeing is "We the People" govern ourselves as framed by the founders back in 1776 "modernized" with amendments to the Constitution. As stated by justice Gorsuch, yes "We the People" can govern ourselves.

Hooda Thunkit said:

remember the person arrested not too long ago outside a Justice's house. Armed, with an admitted agenda to murder 3 Justices ... These people will stop at nothing.

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And "These people" were also present back in 1776 when the founders framed this nation.

Keep in mind that not all colonists were supportive of rogue treachery of going against the absolute British royal rule and these "sympathizers" probably did things to sabotage the revolutionary war efforts of colonists and who knows what else.

And having just fought off the biggest tyrant on the planet, I am sure the founders who became judges and Supreme Court justices KNEW the potential for future tyranny on "We the People" by governmental powers foreign AND domestic; as there were already people of larger city states who wanted to impose on the rights of smaller rural states. And this was the very reason why the founders separated our governmental powers into three branches, so if one or two branches started to become tyrannical, the other one or two branches would check and balance to prevent tyranny on "We the People".

After watching the interview with justice Thomas, Supreme Court's role in being the final "backstop" (As stated by justice Gorsuch) for "We the People" is well expressed and every justice who is appointed to the Supreme Court, I am certain, is well aware of their job.

When justices Gorsuch and Kavanaugh were appointed to the Supreme Court, even justice Ginsberg defended them saying, "I can say that my two newest colleagues are very decent and very smart individuals" - https://www.cnn.com/2019/07/26/politics/ruth-bader-ginsburg-kavanaugh-gorsuch/index.html

And she didn't mince words when it came to clarifying what the Second Amendment meant - https://fedsoc.org/commentary/publications/concealed-carry-and-the-right-to-bear-arms


When I read her comments, I got the impression that she certainly KNEW what the Second Amendement meant and implied for "We the People".

So when judges are appointed to the Supreme Court, I believe they understand not only their role/job for "We the People" but the full intent of the founders in being the most important and ULTIMATE third part of "separation of powers" in respect to tyranny of governmental powers ... foreign AND domestic.

And potential threats to their lives? It's just a part of the "job" of being Supreme Court justices.

Ric said:

https://dailycaller.com/2022/10/03/...-owners-america-challenge-atf-bump-stock-ban/

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Bump stock discussion (Regarding whether it is a machine gun or not) is not really the focus of this thread as this thread is more about "modern" semi-auto firearms and "magazines" as "arms" as defined by the Supreme Court related to the Second Amendment.

Let's stay focused on OP of AW/magazine ban.

Thank you.