California mag ban reversal 14 Aug 2020

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

  1. AlexanderA
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    AlexanderA Member

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    My point was that there is a large existing inventory of 15-18 shot pistols (certainly in common use) that would be effectively banned by a 10-round magazine ban. (Yes, I know that 10-round magazines are available, or might become available, for most of them. That's not relevant to the point being made.) This argument appears to be persuasive, at least to the judges of the 9th Circuit.
     
  2. D.B. Cooper

    D.B. Cooper Member

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    Given that I've seen LCMs (full size, 30 rd magazines) for AR15s that only hold 5 rounds (for hunting purposes), I don't think a magazine ban effectively bans a 15-shot pistol. It does, however, make it far less effective and far less desirable.
     
  3. Carl N. Brown

    Carl N. Brown Member

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    If you own a handgun originally made for an over 10 round magazine, banning and ordering you to turn in your over ten round magazine(s) effectively renders your handgun a single shot.*

    I am sure there is a history of people successfully defending themselves with single shot handguns.

    I have been OK with relying on a two shot derringer, five shot .38, six shot .357, seven shot .46, eight shot 7.62, ten shot .40.

    I am not OK with telling people who may be stuck in high crime neighborhoods & made to turn in their magazines that I'm ok but it sucks to be them.

    A lot of handguns made with over 10 round magazines do not have 10 or less round magazines as a factory option. Some are so obscure that it would not be economical for an aftermarket manufacturer to make compliant magazines.

    Hunting rules allow a temporary block in capacity for magazines while in use for hunting and restoration to full capacity for other uses. Magazine blocks are not sufficient for AWB compliance.


    ___________________
    * Then there's the problem of magazine safeties. No magazine, the gun won't fire a round loaded in the chamber. Does California allow disabling a magazine safety to use a pistol without a magazine as a single shot?
     
    Last edited: Aug 17, 2020
  4. GEM

    GEM Moderator Emeritus

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    Some info on the ban and whether it's open season on the mags for a bit. NSSF seems not to think so:

    https://www.thetruthaboutguns.com/caution-nssf-issues-industry-advisory-on-california-magazine-ban-ruling/

     
  5. danez71

    danez71 Member

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    I believe that in CA they are. They even have regs that say what's considered an acceptable permanent modification for a mag block.
     
  6. RickD427

    RickD427 Member

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    No regs (yet) on what constitutes a "Permanent" alteration of a magazine to accept 10 or fewer rounds. The common understanding seems to be that riveting and/or epoxy is an acceptable method. I haven't seen any case law on the point.
     
  7. danez71

    danez71 Member

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    Could you explain the context of this please?

    5491 b

    https://www.google.com/url?sa=t&source=web&rct=j&url=https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/regs/lcmp-text-of-regs.pdf&ved=2ahUKEwi6ndKA46LrAhUPna0KHVymCEUQFjAAegQICBAB&usg=AOvVaw30WS5Fz95t8fymH-QOJdwa
     
  8. RickD427

    RickD427 Member

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    Here's my shot at it, but I shoulda known better than to summarize California law and regs in just a few words.

    Your citation is to the California Code of Regulations (CCR). The CCR consists of regulations that were adopted under the authority of controlling statutes and that (with a couple of notable exceptions) that the regulations go through a vetting process (California's "Administrative Procedures Act") to ensure that the regs are properly based in statute.

    Title 11, section 5491 addresses large-capacity magazines, and large-capacity magazine conversion kits. These regs were adopted following the passage of California's Senate Bill 1446 which generally made the possession of large-capacity magazines illegal. The regs laid out two different avenues by which large-capacity magazines could be made legal under SB 1446.

    Subparagraph (a) imposes a regulation that holders of Large-Capacity Magazine permits may accept large-capacity magazines from California residents for permanent conversion to a lawful capacity. Subpara (a) made no provision for the manner of conversion.

    Subparagraph (b) defined several methods by which an individual resident could bring their magazines into compliance. It's interesting to note that the specific methods listed in subpara (b) were not imposed on permitees under subpara (a).

    But you gotta remember that the regs are subordinate to the statute. If the authorizing statute becomes toast, then the corresponding regs also become toast.

    And that is what occurred here.

    Prior to SB 1446 taking effect, most of it's enforcement provisions were enjoined by a federal District Court and that same court found the entirety of the California statute to be unconstitutional. Last Friday, the Ninth Circuit issued a decision upholding the District Court decision.

    So even though California adopted the text of the regulations that you cited, they have not existed in an authoritative form.

    I probably would have done better to have qualified my statement. It's also worth noting that there is significance to the term "Large-Capacity Magazine" within California's Assault Weapon statute and that the Assault Weapon provisions were not affected by the recent federal court actions.
     
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  9. danez71

    danez71 Member

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    Ahhh. I see now. I wasnt really thinking going forward and I should of.

    Thank you
     
  10. LiveLife

    LiveLife Member

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    And since CA is not enforcing possession of "Large Capacity Magazines", it's moot discussing how to permanently limit magazine capacity. ;)

    Stay for Duncan v Becerra affects purchase, sale, manufacture or importation of larger than 10 round capacity magazines, not magazines in possession. And stay could be lifted.

    I guess we will find out something by August 28th ...
     
    Last edited: Aug 17, 2020
  11. danez71

    danez71 Member

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    I don't think I would state it so firmly.

    California arrested a guy earlier this year for standard cap mags after he replied to their question that he got them during Freedom Week 1.0

    They ended up dismissing the charge.

    The gentlemans name is Pheng Yang
     
  12. RickD427

    RickD427 Member

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    You've got a really good point about Mr. Yang's arrest. He was never prosecuted, and I've been told that the Sheriff apologized for the arrest having been made.

    Judge Benitez made a point about California's laws being a quagmire and having great potential to entrap innocent persons. The point applies equally well to LEO's. Most of us enter the profession with a least a GED and most have some college. But the way the laws are structured, they're quite difficult to decipher and understand. In the recent Duncan decision, three very highly educated judges looked at the facts and came to two very different decisions about what the law said. If they can't get it universally right, how do expect all of the LEO's in the state to get it universally right?
     
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  13. Swing

    Swing Member

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    Well ringadingding. Surprising out of the Ninth Circuit.

    SCOTUS seems to have been reticent to take 2A cases lately. I wonder if they will this one?
     
  14. LiveLife

    LiveLife Member

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    Nice.

    Just goes to show things can change, even for the 9th Circuit. ;)

    We will first have to wait to see if CA requests an en banc ... I believe they have until August 28th.
     
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  15. danez71

    danez71 Member

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    Agreed.


    Just for reference, this link has the letter of not pursuing. Personally, I think he shouldn't have elaborated past Freedom Week.

    https://amp.reddit.com/r/CAguns/comments/h9qfit/people_v_pheng_yang_will_be_dismissed/




    Back to mag ban case. Didn't mean to change topic.
     
  16. bummer7

    bummer7 Member

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  17. LiveLife

    LiveLife Member

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    (bummer7 posted while I was posting)

    CRPA updated their website with FAQ pdf regarding Friday's ruling - https://crpa.org/wp-content/uploads/FAQ-and-Analysis-Re-Ninth-Circuit-Panel-Decision-08162020-1.pdf

    Here's a brief summary of FAQ:

    1. What did the Ninth Circuit three-judge panel hold? The Ninth Circuit held that the entirety of California Penal Code section 32310 is unconstitutional under the Second Amendment. The ruling affirms the 2019 order of the Honorable Judge Roger Benitez of the United States District Court for the Southern District of California.

    2. What does it mean that the Ninth Circuit applied strict scrutiny in this case? When courts review constitutional challenges to government action, they can apply one of various levels of review. Three of the most commonly levels of review, called levels of “scrutiny,” are rational basis, intermediate scrutiny, and strict scrutiny. Whether a law will be upheld as constitutional can depend heavily on which level of scrutiny is applied to evaluate the constitutionality of a law ... What makes the Duncan ruling so important is that it marks one of the few times strict scrutiny has been explicitly applied in a Second Amendment case. While CRPA is thrilled that this decision struck the ban on magazines over 10 rounds, the court’s application of strict scrutiny is also great news for current and future Second Amendment cases in California. This precedent will no doubt help CRPA in its challenges to numerous other infringements the state has imposed on the right to bear arms.

    3. What did the Ninth Circuit say about the use of intermediate scrutiny? Since the Heller and McDonald decisions, CRPA has been disappointed to see courts apply intermediate scrutiny in name only ... the Ninth Circuit finally gave us the fair analysis we’ve been waiting for. While the panel found that strict scrutiny applies, it also conducted a review of California’s magazine ban under intermediate scrutiny and found that it would not survive that more permissive standard either. According to the court, the statute was simply not a reasonable fit to the important public safety interests that it was enacted to serve. As the court writes, “[w]hile the precise contours of intermediate scrutiny may vary, this much is certain: It has bite. It is a demanding test.” And, in what appears to be a clear criticism of the bad-faith review of other circuits, the court states that “intermediate scrutiny cannot approximate the deference of rational basis review.”

    4. Does this mean that it is now lawful to own or possess magazines over 10 rounds in California? YES!

    5. Can I start buying or selling magazines over 10 rounds in California today? NO!

    6. Can I use magazines over 10 rounds that I lawfully acquired at a shooting range? YES!

    7. Can I carry the magazines I lawfully acquired with a firearm pursuant to a carry license? YES!

    8. I own magazines over 10 rounds that are currently out of state, can I bring them back to California now? NO!

    9. Can I travel outside of California with magazines over 10 rounds that I lawfully acquired and then bring them back into California? NO!

    10. What are the penalties for violating California’s magazine restrictions? Anyone who “manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazines” can be charged with either a misdemeanor punishable by up to a year imprisonment or felony punishable by up to 3 years imprisonment (known as a “wobbler”). Until it is clear that Judge Benitez’s 2019 stay order is lifted, law enforcement might seek to enforce these provisions, exposing you to criminal liability.

    11. How does the court’s ruling affect California’s “nuisance” provision? While law enforcement might in fact seize so-called “large capacity” magazines as a “nuisance” under Penal Code section 32390, it is our attorneys’ view that there is no legal authority for it to do so—at least not for those who lawfully acquired their magazines. In fact, our attorneys believe section 32390 is unenforceable against at least lawfully acquired “large capacity” magazines, regardless of this ruling, as it was never intended to apply to them ... In any event, even if our attorneys’ analysis of section 32390 is wrong, the Duncan decision makes clear that it is unconstitutional and thus unenforceable. The notion that an item whose possession is protected by the Second Amendment can be seized by government provided there is no criminal penalty is absurd.

    12. What’s next for the Duncan appeal? At this point, that is largely up to Attorney General Becerra and the judges of the Ninth Circuit. The State might choose to accept the panel’s decision, or it could petition the three-judge panel to reconsider its ruling and/or petition the entire Ninth Circuit to rehear the case en banc. And even if the State chooses not to seek rehearing, a judge of the Ninth Circuit might call for a vote to take the case en banc anyway. If rehearing is ordered, additional briefing may be requested, another date for oral argument will be set, and another decision from the Ninth will issue. At that point, the losing party will decide whether to ask the Supreme Court to weigh in by filing a petition for writ of certiorari ... Alternatively, the State could seek direct review by the United States Supreme Court. That avenue will require briefing by the parties on whether the Court should review the Ninth Circuit’s decision and, if the Court chooses to do so, additional briefing and oral argument ... Either way, this process can take months or years.

    13. Where can I view the filings in the Duncan v. Becerra lawsuit? All case filings can be viewed online for free at http://michellawyers.com/duncan-v-becerra/.

    14. Who is responsible for litigating Duncan v. Becerra? The California Rifle & Pistol Association (CRPA), with financial support from the National Rifle Association and The CRPA Foundation (CRPAF) filed this lawsuit after hearing the concerns, outrage, and fear from members who were being forced by the passage of Prop 63 and Senate Bill
     
    Last edited: Aug 17, 2020
  18. JTHunter

    JTHunter Member

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    Isn't there an aftermarket magazine for ARs that has spiral holders on both sides of the mag well and hold about 250 rounds of 5.56? What about the 40 round banana magazines and the 75 round drum magazines for the AK?
    Where will you "draw the line" as for what is "standard"? :confused:
     
  19. Mk-211

    Mk-211 Member

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    CRPA posted on their site that the state has requested an en banc hearing!

    So let's all hope that this blows up in their faces! That and that it will help other states that have bans also.
     
  20. danez71

    danez71 Member

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    If En Banc upholds it, it weakens a SCOTUS appeal. If they dont up hold it, it doest really make their case stronger for a SCOTUS appeal.

    But this is just a way for CA to keep the stay in place for a yr or 2 and hope something changes in thier favor over time.
     
  21. Jim Watson

    Jim Watson Member

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    Yup, drag things out, undoubtedly hoping for a Biden administration that will re-AWB the whole country.
     
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  22. natman

    natman Member

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    Considering how closely the decision follows precedent from the Supreme Court (Heller), it's going to be interesting to see what semantic gymnastics the en banc panel uses trying to rationalize turning it down.
     
  23. Jim Watson

    Jim Watson Member

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    You seem to assume that the en banc bunch will not back up the 2x3 decision.
    Well, so do I.
     
  24. LiveLife

    LiveLife Member

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    Disclaimer: I am not a lawyer, just a layperson.
    Interesting thing to note is how the courts have "viewed" and "ruled" in recent years how the Constitution is applied to expanded definition of "arms" as DC v Heller, Caetano v Massachusetts, Fyock v Sunnyvale and now Duncan v Becerra have stated and affirmed just like how First Amendment protects "modern" types of communication (Email, text, etc.), Second Amendment also protects "modern" types of arms (That did not exist at the time of founders like AR15s, AK47s, etc.) and called ammunition storage devices we call "magazines" as "arms" protected under the Second Amendment - https://www.thehighroad.org/index.php?threads/california-mag-ban-reversal-14-aug-2020.873302/#post-11604024

    So it may not be the case where we just happened to get lucky and got two out of three judges who were pro gun rights (Although one of two judges was appointed by Trump so I believe that really helped as 2/3 decision could have gone the other way).

    So with CA now requesting 11 judge en banc panel, it will be interesting to see whether we see 6 out of 11 judges who also view magazines as "modern" arms and putting restriction on capacity to be unconstitutional. Thanks to recent Trump appointments to the 9th Circuit, we may actually have more of a 50/50 chance of getting 6 out 11 judges who may rule magazine capacity ban unconstitutional. So yes, elections definitely have consequences.

    Regardless how 11 judge panel rules, I see Duncan v Becerra likely being appealed to the US Supereme Court:
    • If en banc rules magazine capacity ban unconstitutional, CA will likely appeal to the SCOTUS but there is growing pressure from other states' AGs to not do so (So CA may accept unconstitutional ruling but having lived in CA all of my life, I don't see that change in behavior)
    • If en banc rules magazine capacity ban constitutional, CRPA (CA arm of NRA) will automatically appeal to the US Supreme Court as they have already clearly stated multiple times.
    So if/when Duncan v Becerra goes to the SCOTUS, question is whether the justices will accept the case and how they will rule. Since we already seen how justice Roberts has ruled in recent cases, I believe a lot will depend on who wins the November election as there may be one to two justice replacement(s) before Duncan v Becerra is appealed to the SCOTUS.
     
    Last edited: Aug 29, 2020
  25. Dudedog
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    Dudedog Contributing Member

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    I am not a lawyer, and have no legal training and did not stay at a Holiday Inn last night (so forgive me if I am mistaken here)

    I believe 1 of the 11 will be the the Chief Judge (Clinton appointee) so guessing one against us at the start.
    Out of the other 47 on the 9th 24 are Republican Appointees so about 50/50
    Sad to say I am afraid it will come down to the luck of the draw.

    Would it be better if we could get a full en blanc review, maybe maybe not, by part lines it seems it would.
    Curious what those circumstances would be as opposed to 11.

    1 SIddney R. Thomas Chief Judge Billings 1/4/1996 Clinton
    2 Alfred T. Goodwin Senior Circuit Judge Pasadena 11/30/1971 Nixon
    3 J. Clifford Wallace Senior Circuit Judge San Diego 6/28/1972 Nixon
    4 Mary M. Schroeder Senior Circuit Judge Phoenix 9/26/1979 Carter
    5 Jerome Farris Senior Circuit Judge Seattle 9/27/1979 Carter
    6 Dorothy W. Nelson Senior Circuit Judge Pasadena 12/20/1979 Carter
    7 William C. Canby, Jr. Senior Circuit Judge Phoenix 5/23/1980 Carter
    8 Diarmuid F. O'Scannlain Senior Circuit Judge Portland 9/26/1986 Reagan
    9 Edward Leavy Senior Circuit Judge Portland 3/23/1987 Reagan
    10 Stephen S. Trott Senior Circuit Judge Boise 3/25/1988 Reagan
    11 Ferdinand F. Fernandez Senior Circuit Judge Pasadena 5/22/1989 Bush
    12 Andrew J. Kleinfeld Senior Circuit Judge Fairbanks 9/16/1991 Bush
    13 Michael Daly Hawkins Senior Circuit Judge Phoenix 9/15/1994 Clinton
    14 A. Wallace Tashima Senior Circuit Judge Pasadena 1/4/1996 Clinton
    15 Barry G. Silverman Senior Circuit Judge Phoenix 2/4/1998 Clinton
    16 Susan P. Graber Circuit Judge Portland 3/19/1998 Clinton
    17 M. Margaret McKeown Circuit Judge San Diego 4/8/1998 Clinton
    18 Kim McLane Wardlaw Circuit Judge Pasadena 8/3/1998 Clinton
    19 William A. Fletcher Circuit Judge San Francisco 10/9/1998 Clinton
    20 Ronald M. Gould Circuit Judge Seattle 11/22/1999 Clinton
    21 Richard A. Paez Circuit Judge Pasadena 3/14/2000 Clinton
    22 Marsha S. Berzon Circuit Judge San Francisco 3/16/2000 Clinton
    23 Richard C. Tallman Senior Circuit Judge Seattle 5/25/2000 Clinton
    24 Johnnie B. Rawlinson Circuit Judge Las Vegas 7/26/2000 Clinton
    25 Richard R. Clifton Senior Circuit Judge Honolulu 7/30/2002 Bush
    26 Jay S. Bybee Senior Circuit Judge Las Vegas 3/21/2003 Bush
    27 Consuelo M. Callahan Circuit Judge Sacramento 5/28/2003 Bush
    28 Carlos T. Bea Senior Circuit Judge San Francisco 10/1/2003 Bush
    29 Milan D. Smith, Jr. Circuit Judge El Segundo 5/18/2006 Bush
    30 Sandra S. Ikuta Circuit Judge Pasadena 6/23/2006 Bush
    31 N. Randy Smith Senior Circuit Judge Pocatello 3/19/2007 Bush
    32 Mary H. Murguia Circuit Judge Phoenix 1/4/2011 Obama
    33 Morgan Christen Circuit Judge Anchorage 1/11/2012 Obama
    34 Jacqueline H. Nguyen Circuit Judge Pasadena 5/14/2012 Obama
    35 Paul J. Watford Circuit Judge Pasadena 5/22/2012 Obama
    36 Andrew D. Hurwitz Circuit Judge Phoenix 6/27/2012 Obama
    37 John B. Owens Circuit Judge San Diego 4/2/2014 Obama
    38 Michelle T. Friedland Circuit Judge San Jose 4/29/2014 Obama
    39 Mark J. Bennett Circuit Judge Honolulu 7/13/2018 Trump
    40 Ryan D. Nelson Circuit Judge Idaho Falls 10/18/2018 Trump
    41 Eric D. Miller Circuit Judge Seattle 3/4/2019 Trump
    42 Bridget S. Bade Circuit Judge Phoenix 4/1/2019 Trump
    43 Daniel P. Collins Circuit Judge Pasadena 5/22/2019 Trump
    44 Kenneth Kiyul Lee Circuit Judge San Diego 6/12/2019 Trump
    45 Daniel A. Bress Circuit Judge San Francisco 7/26/2019 Trump
    46 Danielle J. Hunsaker Circuit Judge Portland 11/12/19 Trump
    47 Patrick J. Bumatay Circuit Judge San Diego 12/12/19 Trump
    48 Lawrence VanDyke Circuit Judge Reno 1/2/2020 Trump

    :eek: 48....

    Some say the 9th should be split up but that is off thread
    I may be wrong but I don't see it ending in the 9th, whether SCOTUS decides to hear it or not we will find out.
    If CA losses in the 9th they might not pursue it but I don't see that happening.
    If we lose in the 9th CRPA has said they will appeal

    For those of you in CA CRPA is an Amazon smile charity and could use your $ if you use Amazon and don't have a smile charity already.
    Every little bit helps.
     
    Last edited: Aug 30, 2020
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