A California Law Doesn't Stand!

Discussion in 'Legal' started by Jim Watson, Jun 4, 2021.

  1. DoubleMag

    DoubleMag Member

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    Yes. Both generically and succinctly, it's what they want in every other state.
     
  2. Speedo66

    Speedo66 Member

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    The Times article mentions that under Fed. judiciary rules, a judge who has tried a similar legal issue, in this case the magazine capacity case, will get all similar cases because it is assumed they now have expertise in that area.

    Judge Benitez is an outlier in CA in the 9th circuit, I don’t expect his ruling to be confirmed by his appeals court. If by chance they do, this will also affect HI, which is also in the 9th.
     
  3. BryanDavis
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    BryanDavis Contributing Member

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    Huge victory. All the anti-gun people on Twitter are super pissed about it. :rofl:

    A lot for our side to be happy about here.
     
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  4. Dudedog
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    Dudedog Contributing Member

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    Odds are it will be like the mag ban, if we win in the 9th the the State will request a rehearing en blanc in the 9th, if we lose the en blanc it will go to SCOTUS who may or may not take it.
    If we win en blanc then it will be interesting to see if the state tries to take it to SCOTUS. (who again may or may not take it).
    Still a long road ahead but at least a step in the right direction.

    At least Judge Benitez believes the 2nd Amendment means something.
     
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  5. dougader

    dougader Member

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    I hope this is the start of good things in California. It'd be a wonderful miracle, but I'd love to see Cali conservative again.
     
  6. CapnMac

    CapnMac Member

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    Will be interesting to see if there is a 'window' that pops open, between this stay and the acceptance of the filing of the Appeal. That's what created the 8-9 day "window" for ordinary-capacity magazines, before.

    The CA AG may feel the need to act faster than last time, but that may not be possible.
     
  7. wbm

    wbm Member

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    Hope there are more.
     
    Last edited: Jun 7, 2021
  8. RickD427

    RickD427 Member

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    There's not going to be a window of opportunity similar to what has become known as "Freedom Week" in the large-capacity magazine case that was before the same judge a couple of years ago.

    In this case the judge issued a very well-crafted decision, then issued a 30 day stay to allow the state to appeal. He did not do the same in the large-capacity magazine case and the short period of time between the decision and the state seeking a stay pending appeal created the "Freedom Week."
     
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  9. TTv2

    TTv2 Member

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    In the unlikely event of an en blanc decision that finds the AWB is unconstitutional, I don't see the states appealing to SCOTUS, not when they think it's a 6-3 conservative majority. They would only do it if they know the appeal would give them what they want.

    That will be the anti gun states gameplan with judicial review. They know SCOTUS has national implications and the DNC will tell the state AG's to limit the losses. Of course, that would just be delaying the inevitable as other circuits may have AWB cases come up and they'll uphold AWB's and cause a split that sends it straight to SCOTUS.

    I think it's unlikely the 9th will overturn Cali's AWB. Gotta figure that by the time that case gets decided there will be some new Biden appointees on the bench.
     
  10. Carl N. Brown

    Carl N. Brown Member

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    The California AG cites the 19th Century SCOTUS Cruikshank decision as supporting California's Assault Weapon Ban.
    United States v. Cruikshank (1876)
    According to Leonard Levy in Encyclopedia of the US Constitution:

    Cruikshank paralyzed the federal government's attempt to
    protect black citizens by punishing violators of their civil
    rights and, in effect, shaped the Constitution to the
    advantage of the Ku Klux Klan. The case arose out of a federal
    prosecution of nightriders responsible for the Colfax Massacre
    of 1873 in Grant Parish, Louisiana. Several hundred armed
    whites besieged a courthouse where hundreds of blacks were
    holding a public assembly; the attackers burned down the
    building and murdered about 100 people. The United States tried
    Cruikshank and others involved in the massacre and convicted
    three for violating section six of the Force Act of 1870.

    That act, which survives as section 241 of Title 18 of the
    United States Code, is a general conspiracy statute making it a
    federal crime, then punishable by a $$5,000 fine and up to ten
    years in prison, for two or more persons to conspire to injure
    or intimidate any citizen with the intent of hindering his free
    exercise of any right or privilege guaranteed him by the
    Constitution or laws of the United States.

    In a unanimous opinion by Chief Justice Morrison R. Waite,
    the Court ignored the statute and focused on the
    indictment to ascertain whether the rights Cruikshank and
    others interfered with were granted or secured by the United
    States. Reasserting the theory of dual citizenship
    advanced in the Slaughterhouse Cases (1873), Waite
    concluded that the United States cannot grant or secure rights
    not under its jurisdiction. Examining in turn each right
    named in the indictment as having been deprived, Waite found
    that they were all "left under the protection of the States."
    None was a federal right. The right to peaceably assemble
    predated the Constitution and remained "subject to state
    jurisdiction." The United States could neither infringe it nor
    protect it, for it was not an attribute of United States
    citizenship. So too the right to bear arms. The right to be
    secure in one's person, life, and liberty was protected by the
    Fourteenth Amendment against state deprivation, but for
    protection of that right, sovereignty "rests alone with the
    States." The amendment, said Waite, "adds nothing to the
    rights of one citizen as against another." Thus the violence
    here conducted by private persons could not be reached by
    Congress, which was limited to assuring that the states do not
    violate the amendment's prohibitions. As for the right to vote,
    the Fifteenth Amendment merely protected against
    discrimination based on race. The Constitution did not confer
    the right to vote on anyone; that right was not, Waite said, an
    attribute of national citizenship.

    By such reasoning the Court held that the indictment did not
    show that the conspirators had hindered or prevented the
    enjoyment of any right granted or secured by the Constitution.
    Accordingly, no conviction based on the indictment could be
    sustained, and the Court ordered the defendants discharged. The
    conspiracy statute remained impotent until revived in recent
    times by the Department of Justice, but the Court did not
    sustain a conviction under the statute until 1966 (United
    States v. Price; United States v. Guest), when the Court
    vitiated Cruikshank.
    -------------------------------------------------------------------------------

    It is very true that the restrictive gun laws supported by California, New York, Illinois, and a few other states claim to be justified by the Cruikshank decision which essentially gutted the various civil rights acts passed after the end of the Civil War. Cruikshank enabled Jim Crow.

    The 1964 Civil Rights Act was better crafted with wider support. When challenged in the cases of US v Guest and US v Price, the Supreme Court in 1966 supported prosecution for violations of the 1964 Civil Rights Act..

    Cruikshank has been vitiated and laws based on the "reasoning" of Cruikshank should not be allowed to stand.

    vi·ti·ate
    verb
    1. spoil or impair the quality or efficiency of.
    2. destroy or impair the legal validity of.
     
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  11. KyJim

    KyJim Member

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    I haven't read California's brief, but McDonald v. Chicago put a stake in the heart of any argument that the right to keep and bear arms is not applicable to the states.

    "In the unlikely event of an en blanc decision that finds the AWB is unconstitutional, I don't see the states appealing to SCOTUS, not when they think it's a 6-3 conservative majority. They would only do it if they know the appeal would give them what they want...."

    The "states" are not a party. It is only California and I cannot imagine California not asking for Supreme Court review if they loose at the circuit level. They would have to tolerate "assault weapons" for years, perhaps decades, if they don't challenge it.
     
  12. Corpral_Agarn

    Corpral_Agarn Member

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    You love to see it
     
  13. GEM

    GEM Moderator Staff Member

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    I've read a great deal of pro and con legal experts on what the 2nd Amendment means and how a judge or justice must or must not find based on this or that set of decisions, documents, etc.

    From that, my take away (which annoys lawyers who believe in the abstract and supposed unemotional application of the 'law') is that the lawyer, layperson, justice, judge, etc. has a basic attitude on firearms. They believe in self-defense and the defense against tyranny or they don't. The latter may grudgingly or enthusiastically allow classic sports usage (duck, deer, skeet and bullseye). That attitude then determines the decision of the judge or justice who then plumbs the depth of the large body of text, law, blather, etc. to justify their decision based on their emotional world view.

    There is no other reason to explain the diametrically opposed, deeply reference arguments. The extensive research on decision making in all domains indicates that emotion and fast processing on that basis is the major force in such. An example of such is the moral panic after Las Vegas that almost banned all semis (according to some NRA sources - with enough of the GOP and Trump going along).
     
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  14. danez71

    danez71 Member

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    California appealed to the 9th.
     
  15. AlexanderA
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    AlexanderA Member

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    Judge Benitez is in "senior status," which means that he's essentially retired. The reason he got the case is that there's a scarcity of judges (5 vacancies) in that District.

    Also, Judge Benitez was rated as "unqualified" by the ABA when he was first nominated.

    It's almost certain that the decision will be reversed by the 9th Circuit.
     
  16. F-111 John

    F-111 John Member

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    Judge Benitez ruled in 2017 on a summary judgement overturning the California Magazine ban, and here it is 2021 and we're still waiting for the 9th Circuit's en banc review. The only surprise so far was the 3 judge panel upholding Benitez' ruling 2-1.

    This ruling will also take years to work its way through the 9th Circuit, so don't go shopping for a new AR just yet.
     
  17. CapnMac

    CapnMac Member

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    Or pulling them out of attics and crawlspaces, either . . .
     
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