California Appeals Court Ratifies Assault Weapons Ban

[MagnumDweeb]

Got this off of democraticunderground (spying on the enemy so to speak), links are:

http://thinkprogress.org/justice/20...rnia-appeals-court-upholds-assault-rifle-ban/

http://www.thetruthaboutguns.com/20...t-appeals-2a-doesnt-apply-ak-platform-rifles/

http://www.courts.ca.gov/opinions/documents/D062900.PDF

I was surprised that democratic underground was first to break this. It's about how the California state appeal's court found that semi-automatic rifles are as dangerous as short-barreled shotguns and thus not protected. Though you can still buy short-barreled shotguns with a tax stamp. As bad as California is, I'm sure lots of folks would pay an additional $200 burden to own any semi-auto only rifle with detachable magazines that use standard capacity service magazines. It's bull hockey but it would be less infringing than an outright ban. I've read the opinion and i have done appeals at the state level in Florida and California's appeal opinion is the laziest I have ever seen. It is an outright travesty of a mockery. I'd add more but I'm still recovering from a ear and bronchial infection (whole week working from home while trying to recover).

The last link is an actual copy of the opinion. Read it and you will be surely ticked off if you know anything about constitutional law and interpretation. Where is Alan Gura when you need him?

 

[DanTheFarmer]

I gave this stuff a quick read and my head is still spinning.

I'll read more but won't this be easy to appeal/overturn? The "unusual" nature of the AK (and by extension, AR) style rifles are central to the court's decision.

Won't the simple facts that there are about a BAZILLION AK/AR vs. only a few short barreled shotguns rebut the courts decision?

Altering a shotgun (or making an unusually short one from scratch) reduces its effectiveness for its normal (waterfowling, trap, etc.) purposes thus making a short barreled shotgun "unusual" and subject to banning/regulation. The AK/AR series are not typically altered and hence, given their huge production numbers, aren't "unusual" in this regard either.

My $0.02.

Dan

 

[MagnumDweeb]

They are basing their opinion on a previous case that says assault weapons can be banned. All their case law comes out of California which has never been tested at the SCOTUS, but at the federal. I'm curious if this can be taken before the SCOTUS. If the SCOTUS doesn't take this one up California will have carte blanch to just nix any rifle that can take a magazine.

What is strange is they don't set out any kind of metric on how a rifle is usual and normal to ownership. Instead they just flatly say that AK and AR patterned rifles are unusually dangerous. If this goes before the SCOTUS we might finally get a direct and clean understanding of Miller. The problem is if the Defendant can put together the funds to take it before the SCOTUS. Here is the firm http://www.elliottnkanter.com/tag/california-gun-laws-2013/ doing the representation.

I don't see this firm being an advocate type. I could be wrong but in my opinion and only in my opinion this was a last shot appeal for the Defendant who is now broke. I don't think we will see this before the SCOTUS unless Alan Gura takes the case, or rather the SAF. The problem I think is the case was not setup well to be fought before SCOTUS based on the opinion I am reading. Although I think it could be done.

 

[usmarine0352_2005]

.

What's the chance of over-turning this?
.

 

[Kiln]

How is this surprising to anyone? The liberal dirt bags in control of places like IL, NY, and CA have been wanting this for years. Doesn't surprise me in the least that all these moves have been made recently.

 

[ATLDave]

NOT LEGAL ADVICE:

It looks as though they totally (and perhaps deliberately?) mis-read Heller's "common use" test. They read it as being common use at the time when all military-age men were the militia, and were expected to bring their own guns. But that reading conflicts with Heller's finding that modern handguns (not common for military/militia use in 1790) are protected. The CA court seems to adopt (at least at that juncture) the reading, advocated by many in the gun control crowd, that black powder muzzleloaders are protected, but nothing modern.

Here's the passage to which I refer:

Heller
concluded the Second Amendment protected the right to possess a handgun in one's
home, because handguns are a "class of 'arms' " overwhelmingly chosen by American
society for the lawful purpose of self-defense (Heller, at pp. 528-530) and were the type
of small arms " 'in common use at the time' " (id. at p. 627) that citizens, when called to
militia service, were expected to bring with them when called to serve.

 

[ChaoSS]

the 1934 NFA was constitutional because SBS, SBR, and machine guns weren't used by the military. The CA assault weapons law is constitutional because some of the most common guns in use by all Americans are "unusual".

What a world we live in.

 

[Zoogster]

ATLDave:

Heller
concluded the Second Amendment protected the right to possess a handgun in one's
home, because handguns are a "class of 'arms' " overwhelmingly chosen by American
society for the lawful purpose of self-defense (Heller, at pp. 528-530) and were the type
of small arms " 'in common use at the time' " (id. at p. 627) that citizens, when called to
militia service, were expected to bring with them when called to serve.

Complete nonsense. They don't even make sense with thier own logic on that one. Handguns were primarily used on ships and by some cavarly and officers. They were less common than long guns.
Most militia would be expected to bring long guns, and it was preferred they bring modern military long guns if available ( can recall complaints by individuals such as George Washington when too many brought what was felt inadequate weapons for use in modern conflict and they were encouraged to bring more capable ones if possible.)
The most obvious parralel firearm today would be the AR currently fielded in military service. That is not to say it would limit people to AR firearms, but it would be the most protected of all current use firearms under the militia purpose logic. The basic firearm used by both front and rear echelon troops. The firearm even the least likely soldier to see combat is expected to have basic familiarity if not proficiency in using.
The real conclusion of the logic the California court is choosing to use there would be that if the Supreme Court upheld handguns as protected militia weapons even though they are rather uncommon and see minimal actual use, then far more common firearms widely used by most soldiers would undoubtedly be protected. However the California logic was not what the Supreme Court was saying in regards to handguns anyways.

It certainly is strange ChaoSS. The Miller logic that let the NFA stand and become established law based on nobody providing evidence that short barreled shotguns had been used in the military (and widely in WW1 trench warfare, with trench warfare being the predominant type of fighting.)
Now the most common type of long gun in the US, widely popular for a number of reasons including its modularity that allows anyone to tailor the basic firearm to thier needs, is too uncommon or unusual.

 

[patmccoy]

"the 1934 NFA was constitutional because SBS, SBR, and machine guns weren't used by the military."

No, it was Constitutional because no evidence was submitted to show that SBS were used in the military.

 

[Jim K]

We can't win as long as the antis can walk into the office of a judge or a governor or a senator and drop a million bucks on the table. That kind of money talks and they have that kind of money. In many states, elections don't matter any more, since there is in reality only one political party and that party is thoroughly corrupt, with offices and legislation for sale to the highest bidder.

Jim

 

[smalls]

I've noticed a trend in courts of anti states upholding these types of bans, in direct conflict of Heller's "common use" deal. (Like Connecticut's AR ban).

It's almost as if they looked at Heller, said "meh, that doesn't apply to this state", and ruled however they wanted to. Last I checked, that's not how this country ran. But I'm just a lowly peon, er... citizen.

We really need to get "common use" back into view of the Supreme Court. Sometimes I wish we had a seperate 2A court.

 

[sawdeanz]

Wow there seems to be a lot of circular reasoning in that piece.

One thing that I keep getting stuck on is when they quote Heller's passage that starts with "It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause...."

I was reading the Heller text and still couldn't decipher the passage. If I am reading this correctly, it seems to say as a whole that dangerous and unusual weapons can be banned, even if they are in common use with the military and would be useful in a militia setting. My confusion is how its mention of the m16 relates to this, and whether the Cali courts interpretation of Heller is in any way correct?

Which then brings me to how the Cali court could possibly m16's let alone ar-15's, where the difference is the fully automatic nature that the court itself acknowledges.