Discussion in 'Legal' started by Jim Watson, Jun 4, 2021.
Yes. Both generically and succinctly, it's what they want in every other state.
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.
A lot for our side to be happy about here.
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.
The CA AG may feel the need to act faster than last time, but that may not be possible.
Hope there are more.
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."
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.
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
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.
1. spoil or impair the quality or efficiency of.
2. destroy or impair the legal validity of.
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.
You love to see it
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).
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.
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.
Or pulling them out of attics and crawlspaces, either . . .
The 9th's make up is considerably different now as compared to just 5 yrs ago. It used to be about 85/15 and now its about 60/40.
And the 3 judge panel upheld his std-cap mag ruling a few yrs ago before it went to the 9th.
I don't know that I'd call it an analysis as much as just standard fare LAT op-ed material. He's just saying that the reasoning at the core of the decision --the commonality (i.e. "common use") point-- might be on solid ground. The author (who is unabashedly anti-gun) then proceeds immediately to cut the legs out from under that statement by quoting Scalia saying the 2A isn't unlimited.
All that aside, I can see a future where "common use" bites us in the behind. In fact, if the original Roberti Roos iteration of the state ban had never been expanded, with some exceptions, would the sentiment even hold true? ...that all these firearms are common and ordinary? A lot of the by-name weapons in the original law are indeed *not*, to the point of being pretty rare in fact. The same maybe holds true for being just unusual; things like the Calico come to mind. What I'm saying is, this is a potentially slippery slope if the whole argument hangs on or turns into defining too narrowly the meaning of common. You see this happening in that LAT piece when it comes to the Chemerinsky quotes.
Our best bet isn't to rely on the judicial branch to settle all these trivial details. Our best approach is to copy successful movements which have reshaped public opinion so as it no longer really matters what is legislated and litigated, and/or stops the allure of legislating an unpopular policy in the first place. As evidenced by Heller a decade ago, it's unlikely we're going to get overly broad pro-gun mandates from the Supreme Court.
From the LA Times article:
UC Berkeley law school dean Erwin Chemerinsky, a widely respected constitutional scholar, believes that the Supreme Court has only protected firearms that were common when the 2nd Amendment was adopted in 1791.
“No one can argue that AR-15-style weapons existed, let alone were in common use, in 1791,” Chemerinsky wrote.
This argument was completely dismissed in Heller:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. DC v Heller, page 8
There's no way that "constitutional scholar" Chemerinsky is unaware of this quote. Nor would he apply it to any other amendment, unless he thinks the First Amendment only applies to documents written with a quill pen.
The rhetorical elephant question in the room is..... Chemerinsky is widely respected by who?
People who respect him because he tells them what they want to hear.
Lawyers. He has long been known as one of the country's top constitutional scholars.
ETA: I was shocked to see just how wrong he was in the recent LA Times article, but lots of lawyers will buy into what he says, because he's Erwin Chemerinsky.
And those would be bad lawyers.
That someone has gotten it right before... even many times before.... doesn't grant them a free pass to be blindly followed as to be right everytime.
Those lawyers that do blindly folllow exhibit a trait that that could be very detrimental to thier clients.
All my opinion, of course.
Separate names with a comma.