California mag ban reversal 14 Aug 2020

Discussion in 'Legal' started by Conelrad, Aug 14, 2020.

  1. Dudedog
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    Dudedog Contributing Member

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    This is good news so far, maybe with some luck the 9th won't hear it en blanc, but not likely. Rest assured CA will waste taxpayer money fighting for it as long as they can.
    Having said that if we win it would not surprise me if CA came up with some new law saying anything that can use a mag of more than 10 rounds is an "Assault weapon" and try to regulate things that way,
    so I am afraid until we get some kind of a clear ruling from SCOTUS that they can't do that kind of thing we will be back in the courts.
    The antigun libs in the CA Legislature get paid to make laws so it costs them nothing to pass this sort of stuff, it costs someone - NRA, CRPA, whoever, money to fight them, so IMO until we can stop such laws from being passed it will be an ongoing battle.

    Thanks to the CRPA for all their efforts.
    (CRPA is an Amazon Smile charity so if you shop at Amazon and want to help them out you can)
     
  2. LiveLife

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    Just like the First Amendment protects modern types of communication, I am hoping for the courts to rule on the Second Amendment protecting modern types of firearm, which apparently includes modern ammunition storage devices, magazines that are in "common use".

    And as Spats McGee posted, now's the right time with national unrest and rioting as reasons for "self defense" and apply more than ever having to defend against multiple threats necessitating larger than "arbitrary" 10 round capacity magazines which was already ruled unconstitutional by judge Benitez in Duncan v Becerra causing "lethal pause" for the citizens when having to change magazines.

    Thankfully, it's possible that this case could result in 9th Circuit win and likely if this case goes to the SCOTUS, a Supreme Court win for the country.
     
    Last edited: Aug 15, 2020
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  3. ilbob

    ilbob Member

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    My guess would be CA does not fight it past en banc review if they lose there.

    I would also guess that after we lose the en banc review scotus declines to take a look. Politically it is a hot potato and scotus just does not want to deal with it plus it is not like they don't have other matters of equal or higher importance to look at.

    OTOH, scotus might decide this is a time to spank the lower courts for more or less ignoring their recent two rulings on the second amendment.

    Basically, I don't think anybody knows what's going to happen. If Trump wins, probably we will get at least two new justices who are more Clarence Thomas then RGB. That has the potential to change the dynamic we have seen the last few years.
     
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  4. Dudedog
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    Dudedog Contributing Member

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    And of course en blanc in the 9th is different because we don't get everybody we get 11 of the 46 (I believe it's 46) Judges one of which I believe would be the Chief which is Thomas who is most likely against us....
    There have been arguments to break the 9th in smaller pieces because of this but it hasn't happened.
    It will be interesting to see if it is reviewed if it splits by Party line as far as who appointed the judges.
    So if the 9th does it again it's luck of the draw, with one against at the start.
    (mods please delete if this is to far out of the guidelines for legal)
     
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  5. CapnMac

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    Given the potential national ramifications of this, it looks like the sort of "toothy" decision Roberts has previously stated he wanted to be involved in. (The previous cases were more about details that were less than national, if important to those involved.)

    Now, just what gets brought before SCOTUS will matter.

    When SCOTUS ruled on the pretrial motion in the Connecticut vs Bushmaster case last year, that was over the process of pre-trial motions, and was a non-event for RKBA.
     
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  6. AlexanderA
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    AlexanderA Member

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    We need to be thinking about the implications of this decision on the rest of the country.

    If we get a final decision from the 9th Circuit (after presumably an en banc review), and assuming it remains favorable to the gun-rights side, there will be a conflict between circuits. This makes it more likely that the Supreme Court will hear the case, if the state of California chooses to appeal. That's why California might not appeal, if it listens to the antigunners in other states that don't want an adverse SC ruling. The legal strategy becomes complicated, for both sides.
     
  7. Sebastian the Ibis

    Sebastian the Ibis Member

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    There are already circuit conflicts regarding carry. SCOTUS didn't it.

    Roberts is a squish that doesn't want to "rock-the-boat," -- whatever that means in his own head. Some of the most far reaching an momentous decision he has made, were to punt on the main issue in that specific case. Unfortunately, he has succumbed to the D.C. cocktail crowd and cares about "his legacy" and what the newspapers write about him.

    We probably need to wait for Amy Barrett to replace RBG to really get traction on 2A cases. Of course we need to have a President that will appoint her, and Senate that will confirm her. GET OUT AND VOTE in 2020 !!!
     
  8. 22250Rem

    22250Rem Member

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    Didn't take targetsportsUSA.com ( located in Connecticut IIRC ), to respond............ IMG_9597.JPG .
     
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  9. BCR#1

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    I know enough to proclaim that wayne with a small w is a thief and the same goes for other leaders of the org as well.

    Bill
     
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  10. LiveLife

    LiveLife Member

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    With all due respect.

    This is the "legal" subcategory discussing CA/9th Circuit magazine ban case Duncan v Becerra and affect Friday's ruling has on CA gun owners.

    Let's keep NRA/Wayne discussion out of this thread so we can stay on topic.

    Thanks
     
  11. bullzeye8

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    So my question with people saying this stay is still in effect is how constitutionally is it still in effect? The constitution lists the powers we the people grant to the gov't so when now there have been 2 rulings saying it is unconstitutional wouldn't that mean the gov't never had the power nor does it now to enact and enforce this legislation? If they don't have that power then a judge would not have the power to say yes this is unconstitutional but we'll keep it in place longer. It might make sense if a lower judge ruled unconstitutional and a higher court questioned it and placed a stay till they ruled but for the same judge to do it and for it to still be in effect even after another higher court ruled it unconstitutional makes no constitutional sense at all to me. Is there a constitutional explanation here or just legal precedent that has no founding in the constitution and is likely itself unconstitutional?
     
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  12. bbqreloader

    bbqreloader Member

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    DB is correct. To further add insult to injury, RMGO (Rocky Mountain Gun owners) hosed us when they filed lawsuit in state court, then appealed in state and then went to Colorado Supreme Court which upheld Fields stripping of 2a rights. So it will now take someone to file some sort of action on the federal level to rid us of the travesty of mag limits.
     
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  13. AlexanderA
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    AlexanderA Member

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    All appeals have not yet been exhausted.
     
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  14. LiveLife

    LiveLife Member

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    The Mag Life Podcast host Daniel Shaw and Firearms Policy Coalition legal strategist Adam Kraut discuss the legalities and immediate ramifications of Friday's ruling whether Californians should start buying now - or wait.

    GunMagWarehouse: The Mag Life Podcast Episode 167 - CA Magazine Ban Lifted? | What the 9th Circuit Affirmation Really Means, with Adam Kraut, Firearms Policy Coalition legal strategist

    (⚠️ Apologies in advance! In places, the sound quality is less than perfect because of our connection. Because of the urgent nature of this episode's contents, we decided to push through and publish anyway.)

    On Friday, August 14th, the Ninth Circuit Court of Appeals ruled in the case of Duncan v Becerra (q.v.) that the California Magazine Ban (California Government Code § 31310) violates the constitution. This means what is often referred to as the "California high capacity magazine" (which really means standard capacity magazine) prohibition should be gone. But it's not.

    Unfortunately, the judges' ruling does not immediately make it legal to buy what are referred to as Large Capacity Magazines (LCM). The Court has not yet issued a mandate, the stay has not yet been lifted, and the State of California has options left to continue to make such purchases unlawful.

    According to our legal counsel and numerous other sources, including Adam Kraut of the Firearms Policy Coalition, the stay currently (as of this writing) remains in place, but as soon as that lifts - which could be as soon as [Friday] afternoon or as late as...whenever - Californians should be able to start buying "large-capacity" mags again.​

     
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  15. RickD427

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    It's still in effect because the appeal process is not yet complete.

    Consider an analogy to Football. If one team is ahead by 10 points after the third quarter, they don't walk off the field and go to their victory party. You gotta wait for the end of the game.

    In the Appellate world, the game ends when the Supreme Court reaches a decision on a matter, or when the parties accept the decision of a lower court. If the California Attorney General allows the filing deadlines to continue his appeal to expire, then the Ninth Circuit decision becomes final and Marbury v Madison would have the effect of invalidating the law.

    But if the Attorney General elects to continue the appeal, either through an "en banc" rehearing, or through a certiorari request to the Supreme Court, the ball will remain in play.
     
  16. Hooda Thunkit

    Hooda Thunkit Member

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    Can you tell us the date/time of the filing deadline ?
     
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  17. Carl N. Brown

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    A lot of modern firearms suitable for self defence were designed to use magazines over 10 rounds and there are no 10 round magazines commercially available for them.

    California's ban would have the effect rendering millions of firearms useless for any traditional lawful purpose, especially those guns that have a magazine safety.
     
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  18. Craig_VA
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    Craig_VA Contributing Member

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    All of the major 2A groups tend to claim THEY won a court case or got a law passed when they participated in some way, without mentioning the others who may have had more to do with the outcome. I have seen this action by NRA, SAF, and GOA, all three. The most annoying has been the NRA claims about actions in Virginia when VCDL was the primary actor and NRA just sort of showed up.
     
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  19. AlexanderA
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    AlexanderA Member

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    The obvious end run would be for California to amend the ban to apply to over-20-round magazines. This would remove most handguns from the equation, and focus the ban narrowly on "assault weapons." The reason California finds itself in this adverse position is that it overreached.

    I wouldn't be at all surprised if that's exactly what happens, depending on how the appeals process goes. Remember that New York did something similar regarding carrying outside the home, which made that case moot and gave the Supreme Court an excuse to avoid the issue.
     
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  20. Carl N. Brown

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    I have read parts of the 9th Circuit ruling at Reason.com and Volokh Conspiracy.

    The majority of the 3 judges of the 9th Circuit who heard the case upheld the district court ruling that the magazine ban violated the 2nd Amendment.

    The 9th Circuit judge majority also stated that Strict Scrutiny ought to apply to laws regulating the right to bear arms, rather than Intermediate Scrutiny (that basicly allows government restrictions based on government intent to do good without consideration of the impact on lawabiding citizens).

    The two judges also recognized that the ban would adversely affect traditional and lawful uses of commonly owned firearms (including self-defense, hunting, target shooting, and civilian marksmanship practice).

    That puts some teeth back into the holding in the Heller decision:
    "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

    My observation is that anti-gunners pretend Heller only defends the right to have "a reasonable handgun in the home for self-defense only". The specific D.C. handgun and self-defense bans knocked down by DC v Heller 2008 outlawed handguns and criminalized having any operational gun in the home for self-defense. But SCOTUS held RKBA not only protected military preparedness training and home defense but all traditionally lawful purposes, beyond militia, beyond self-defense in the home.

    Besides, most restrictive state and local gun laws are built on Cruikshank 1873 overturning the Civil Rights Act of 1870 (Cruikshank is the worst supreme court ruling since Dred Scott) which was repudiated in the Guest and Price decisions upholding the Civil Rights Act of 1964. The whole edifice of gun control is built on mistaken premises.
     
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  21. RickD427

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    Not with any certainty, because the courts have the ability to extend the deadlines.

    The rules provide 15 days from the entry of judgment for a party to file for an "en banc" rehearing (and longer than that if one of the parties meets specific criteria in the FRAP).

    The ordinary deadline for filing a Certiorari request is 90 days from the entry of judgment.

    Note that both clocks begin to run when the judgement is entered, not when the decision is published. Normally there's not much of a difference, but it depends how quick the clerk is.

    In the grand scheme of things, both are relatively short periods of time compared to what we've been waiting through already.
     
  22. Hooda Thunkit

    Hooda Thunkit Member

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    @RickD427
    Thank you.
     
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  23. AlexanderA
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    AlexanderA Member

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    Even under that interpretation of Heller, "a reasonable handgun" would include a modern pistol having a standard magazine capacity of 15-18 rounds. A legislated magazine limit of 10 rounds would violate that, and make untold numbers of commonly-owned handguns useless. This is where the antigunners outfoxed themselves. If they had settled for, say, a 20-round limit, handguns generally would not have been affected. (Nor would the widely-owned AR-15, the original magazine for which was 20 rounds.) I can see a 20-round limit easily passing constitutional muster, whereas a 10-round limit clearly wouldn't. This is not to say that any limit is desirable. I'm just trying to put myself into the minds of the judges.
     
    Last edited: Aug 16, 2020
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  24. CapnMac

    CapnMac Member

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    An important point to remember here is that the 9th Circuit has not ruled the law, entire, "unconstitutional."

    What the 9thcircus has upheld is that a motion contending that a specific ruling made by a lower court was not made per the understood rules for such things. One of the possible outcomes of such an appellate ruling can be the nullification of a law. Or, perhaps, the nullification of its enforcement.

    These things can be hugely subtle and turn on extremely fine distinctions in the language used--a topic better explained by our resident lawyers.
     
  25. D.B. Cooper

    D.B. Cooper Member

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    "Useless" is a strong word; perhaps less effective is a better adjective. For more than a century, people defended themselves with 5 and 6-shot revolvers, and still do today. American soldiers went to war for most of the 20th century armed with a 7-shot pistol. Thus, it's difficult to argue that a 10-shot pistol is useless. Indeed, many current gun owners choose sub 10-round, single-stack sub compact or micro pistol for self defense.
     
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