CA Mag Ban Unconstituional

Discussion in 'Legal' started by Corpral_Agarn, Mar 29, 2019.

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  1. RickD427

    RickD427 Member

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    PDSmith,

    Judge Benitez authored an outstanding opinion. He went to great lengths to document his reasoning for his holding, and to best ensure that the decision holds up to the inevitable appeal. California law is kinda unique in that it authorizes the civil seizure of large-capacity magazines with no corresponding charges bought against the possessor of the magazines (CPC 32390). California Penal Code section 32310 contains the criminal statute for the possession, manufacture and importation of large-capacity magazines.

    The judge appears to have dealt with CPC 32390 in the dicta of the decision because it helped to "bulletproof" the decision against appeal. But the holding of the decision only held that CPC 32310 was constitutionally infirm. He failure to similarly hold CGC 32390 to be infirm is notable, particularly given his treatment of that section in the dicta.

    But it's also a pretty well ingrained principle in the law that the court doesn't award a plaintiff more relief than was requested. Ms. Duncan was represented by Chuck Michel of Michel and Associates. They're probably the leading practitioner in California firearms law. My layman's view is that either the case was not fully pled, or that Michel had a strategic purpose for not pleading for relief from CPC 32390.
     
  2. Zoogster

    Zoogster Member

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    There is going to be a lot of hand wringing going on as various parts of the justice system try to reduce the scope of this ruling.
    That doesn't mean the arguments they come up with to confuse or reduce the impact are valid though.

    It means what we expected, they want to confuse and reduce the immediate impact until they can get into gear to undo or reduce the long term impact.
     
  3. carpboy

    carpboy Member

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  4. danez71

    danez71 Member

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    I think 32390 falls like a domino if and when ever challenged.

    Argued as 10+ are constitutionally protected and therfore can't be a nuisance and confiscated.
     
    Last edited: Mar 31, 2019
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  5. Corpral_Agarn

    Corpral_Agarn Member

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    Thanks for replies, all.

    Looks like outfits are shipping to CA.

    The joy and surprise around here his palatable.

    This case gives CA give owners hope.

    Our first big win in some time.

    I will be donating to the outfits that made this possible and i want to encourage you all to consider doing the same.
     
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  6. alsaqr

    alsaqr Member

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    Slim to none.
     
  7. Corpral_Agarn

    Corpral_Agarn Member

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    We will see. But for now, the fact that shipping mags is a thing, we will smile
     
  8. MagnumWill

    MagnumWill Member

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    Yes, but I bet they're frantically weighing their options right now. If they invalidate it, it's a VERY well worded argument that could prove fateful in the Supreme Court.

    I bet they're currently weighing if saving CA is worth it versus losing their entire effort. Either way, I think their argument is in peril, and that's a very good thing for citizens not just in CA.
     
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  9. kscharlie

    kscharlie Member

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    I don't see why there would be any confusion on the matter, at CalGuns or anywhere else.

    "IT IS HEREBY ORDERED that:
    1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants,
    employees, and attorneys, and those persons in active concert or participation with him,
    and those duly sworn state peace officers and federal law enforcement officers who gain
    knowledge of this injunction order, or know of the existence of this injunction order, are
    enjoined from enforcing California Penal Code section 32310.
    2. Defendant Becerra shall provide, by personal service or otherwise, actual notice
    of this order to all law enforcement personnel who are responsible for implementing or
    enforcing the enjoined statute. The government shall file a declaration establishing proof
    of such notice.
    DATED: March 29, 2019"

    Judge Benitez has ordered a PERMANENT injunction against any further enforcement of the magazine ban. So the injunction stands unless/until overturned. As thorough as his arguments are, I don't see how even the 9th Circuit could overturn it. However, when it comes to the 9th, there is no logic. We shall see...

    Read the full opinion here: https://d3uwh8jpzww49g.cloudfront.net/sharedmedia/1510684/2064261_2019-03-29-order-granting-plaintiffs_-msj.pdf It is a long but fascinating read. And I love the way Judge Benitez rips the California AG a significant number of "new ones".
     
  10. LiveLife

    LiveLife Member

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    "Slim to none"? How can you say that if you read judge Benitez order?

    Judge Benitez explained in the 86 page order why ban on higher capacity than 10 round magazines is unconstitutional and fails the criteria 9th Circuit would use and wrote,

    "... the Ninth Circuit uses a sliding scale. [O]ur test for the appropriate level of scrutiny amounts to ‘a sliding scale.' ... A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny ... law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny ... Strict scrutiny requires the Government to prove that the restriction on a constitutional right furthers a compelling interest and is narrowly tailored to achieve that interest ... This is the case here ... California’s ban on magazines able to hold more than 10 rounds fails strict scrutiny."

    "First, a court must evaluate the burden and then apply the correct scrutiny.

    a. burden & scrutiny - First, a court must evaluate the burden and then apply the correct scrutiny ... This two-step inquiry: '(1) asks whether the challenged law burdens conduct protected by the Second Amendment; and (2) if so, directs courts to apply an appropriate level of scrutiny.'

    b. presumptively lawful or historical regulation
    - In determining whether a given regulation falls within the scope of the Second Amendment under the first step of this inquiry, another two-step test is used ... Section 32310 fails both parts of the test. A complete ban on ammunition magazines of any size is not one of the presumptively lawful regulatory measures identified in Heller. As discussed, neither is there any evidence that magazine capacity restrictions have a historical pedigree.

    c. closeness to the core and severity of the burden
    - If the constitutional inquiry may continue, then the correct level of scrutiny must be selected ... Heller says the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of their home. Guided by this understanding, for selecting the appropriate level of judicial scrutiny, the Ninth Circuit uses a sliding scale. [O]ur test for the appropriate level of scrutiny amounts to 'a sliding scale.' ... A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny. ... This is the case here

    d. the sliding scale of scrutiny – strict scrutiny
    - Further down the scale, a law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny ... Strict scrutiny requires the Government to prove that the restriction on a constitutional right furthers a compelling interest and is narrowly tailored to achieve that interest ... California’s ban on magazines able to hold more than 10 rounds fails strict scrutiny.

    e. intermediate scrutiny - Even under the lowest formulation of heightened scrutiny, intermediate scrutiny, Section § 32310 fails because it is not a reasonable fit ... Section 32310 is not narrowly tailored; it is not tailored at all. It fits like a burlap bag. It is a single-dimensional, prophylactic, blanket thrown across the population of the state. As such, § 32310 fails strict scrutiny and violates the Second Amendment."

    And concluded,

    "Magazines holding more than 10 rounds are 'arms.' ... Accordingly, based upon the law and the evidence, upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."

    And enjoined is "prohibit someone from performing (a particular action) by issuing an injunction (order)".
     
    Last edited: Mar 31, 2019
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  11. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Yes, Benitez wrote a great opinion. But the Circuit Court doesn’t have to accept a word of it.
     
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  12. LiveLife

    LiveLife Member

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    Then we are headed to the Supreme Court.

    To me, it's a win-win situation for 2A. :thumbup::thumbup::thumbup:
     
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  13. LiveLife

    LiveLife Member

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    As the 9th had already upheld the previous injunction by this same judge in 2018 - https://www.courthousenews.com/ninth-circuit-upholds-block-of-california-gun-magazine-ban/

    "But in an 8-page unpublished memorandum issued Tuesday, U.S. Circuit Judge Norman Smith and U.S. District Judge Deborah Batts of the Southern District of New York ruled Benitez used the correct level of scrutiny to decide the preliminary injunction.

    'The district court did not abuse its discretion by concluding that magazines for a weapon likely fall within the scope of the Second Amendment,' the judges said, adding that Becerra hadn’t pointed to any errors made by Benitez."
     
    Last edited: Mar 31, 2019
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  14. LiveLife

    LiveLife Member

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    As to CA AG pushing for an appeal, Judge Benitez shot down all arguments CA AG made including expert witnesses' in the 86 pages ordered on Friday, I wonder what argument CA AG will NOW make to compel the 9th Circuit to change their mind?

    CA AG/DOJ will likely have to do research (possibly with other states' AG/DOJ) to come up with a compelling argument and I do not anticipate a quick response.
     
  15. LiveLife

    LiveLife Member

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    Another significant thing is Friday's ruling going beyond those who already purchased larger than 10 round magazines before 2000 to those who purchase magazines now (Before CA AG responds) and media is starting to cover that aspect of the ruling - https://www.nbcnews.com/news/us-news/judge-blocks-california-s-ban-high-capacity-magazines-over-2nd-n989136

    "Chuck Michel, an attorney for the NRA and the California Rifle & Pistol Association, said the judge's latest ruling may go much farther by striking down the entire ban, allowing individuals to legally acquire high-capacity magazines for the first time in nearly two decades.

    'We're still digesting the opinion but it appears to us that he stuck down both the latest ban on possessing by those who are grandfathered in, but also said that everyone has a right to acquire one,'"

    Perhaps Judge Benitez intentionally picked Friday before a state holiday (Cesar Chavez's day on Sunday, observed on Monday) to allow additional day for gun owners to purchase magazines as Tuesday would be the first day CA AG/DOJ could officially respond. ;)

    Until CA AG/DOJ responds, I have a feeling many CA gun owners will be buying.
     
    Last edited: Apr 1, 2019
  16. pdsmith505

    pdsmith505 Member

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    Because...

    Looking to the history of the 9th Circuit and 2A cases, they find a way to find firearms laws to be constitutional.

    I'd bet dollars to doughnuts that the 9th reverses the ruling on the grounds that "Intermediate scrutiny is appropriate since it does not eliminate the core right of self defense in the home, and the law reasonably fits the government's interest in reducing the number of deaths in mass shootings."
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    No! That was a preliminary injunction — which was a different matter entirely.

    As much as we all love the district court opinion, the fat lady hasn’t yet sung. We still have long and uncertain road.
     
  18. LiveLife

    LiveLife Member

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    List of vendors selling larger than 10 round capacity magazines to CA - https://docs.google.com/spreadsheets/d/1LP1NCp0MjBoeDp6tc6ddb2dKKIAdqxU0qubnEANW4dc/edit#gid=0

    People are placing orders from cities that have city-level 10 round ban like Los Angeles, San Francisco, etc. Time will tell whether they must comply with judge's order and sell larger than 10 round capacity magazines.

    Frank/pdsmith, I understand but as a California resident of 40 years, I am staying optimistic for a change. I am sure you can understand that sentiment.
     
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  19. crestoncowboy

    crestoncowboy Member

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    But mags are shipping (regardless of anyone's interpretation) so there is that. Plus I read that people are buying in brick and mortar stores already at well.

    Furthermore, would it be better If it stands or if its appealed and goes to supreme court after the bickering and hopefully gets these restrictions kicked out of other over reaching states. And what time frame would that be? Not arguing, I'm actually curious.
     
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  20. LiveLife

    LiveLife Member

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    But since the number of deaths from home invasions/personal attacks is larger than number of deaths from mass shootings, if the government was trying to reduce the total number of deaths, allowing citizens to have larger than 10 round capacity magazines would prevail (And judge Benitez used lady with larger capacity magazine example to support self defense, which would apply to self defense).

    Similarly, citizens present at mass shootings armed with larger than 10 round capacity magazines would have greater ability to counter.
     
    Last edited: Mar 31, 2019
  21. Dudedog
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    Dudedog Contributing Member

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    Let us hope it stands.
    I believe the ruling addressed the fact that it would fail the test (at least in that court) under Intermediate scrutiny as well.

    I would be interested on what Frank and Spats think about the ruling as I am years of education and a few billion brain cells sort of being a lawyer and staying at a Holiday Inn last night wouldn't help.

    Opps Frank mentioned earlier:oops:
     

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  22. LiveLife

    LiveLife Member

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    Dudedog, in post #35, I posted ban on higher capacity than 10 round magazines failed strict scrutiny and Section § 32310 of penal code failed intermediate and strict scrutiny
     
  23. Dudedog
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    Dudedog Contributing Member

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    I read all 86 pages earlier!
    Not to say I understand it all but in the ruling looks like it fails muster (at least in that court) for a simple "Heller" test, Intermediate or Strict Scrunity so on any and all levels regardless of the level used.

    Also that it can be considered a Taking.
    Good news for the time being at least.

    I wonder if it stands if then same logic could be used to go after "Approved Handgun list".

    If it Stands there are implications for other states as well.
     
  24. Jeff H

    Jeff H Member

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    I’m sure It could, but you will need standing to file the suit. The correct circumstances to get standing to file this suit only took 20 years, so it may be a while.
     
  25. alsaqr

    alsaqr Member

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    Since their decisions in Heller SCOTUS has allowed so called "assault weapons" bans and their associated bans on "large capacity magazines" to stand. Not one SCOTUS judge signed on to hear the appeal of the MD "assault weapons" ban. On appeal SCOTUS also allowed the NY SAFE Act, the Highland Park, IL "assault weapons" ban, and the CT "assault weapons" bans to stand.

    Somehow it boggles my mind that SCOTUS would allow citizens of CA to own "high capacity magazines" after allowing those magazines to be banned in other states.
     
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