Here we are with stay expiring and I am interested in how the 9th Circuit's "not typical" taking over the case by panel of judges will proceed since the Supreme Court already remanded the case back down saying the 9th Circuit got it wrong post Bruen ruling.
And interestingly, while CA argued that magazine is not an "arm" and not "essential" to firearm, judge Benitez pointed out CA's Unsafe Handgun Act requirement of magazine disconnect mechanism makes magazine essential to handgun operation (Can't even fire a chambered round without inserting the magazine).
I am making more popcorn as I think things will and can get very interesting and perhaps entertaining ... Let the hand waving begin.
Excerpts from judge Benitez ruling proving magazines are indeed "arms" and "essential" component of firearm for the 9th Circuit judges to ponder/contemplate -
https://michellawyers.com/wp-conten...ision-Signed-by-Judge-R.-Benitez2263869.1.pdf
... according to Heller. And it is now clear that “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.” (Page 10)
A. Magazines Are Protected “Arms”
The State argues that larger capacity magazines are not “arms.” First, the State argues that magazines are not essential to the use of firearms and consequently would have been thought of as accessories. But magazines are “integral components to vast categories of guns.” Fyock v. City of Sunnyvale ... “Most pistols are manufactured with magazines holding ten to seventeen rounds, and many popular rifles are manufactured with magazines holding twenty or thirty rounds.” Kolbe v.Hogan (Page 15)
... “without bullets, the right to bear arms would be meaningless.” This is because the right to keep firearms for protection implies a corresponding right to obtain the bullets necessary to use them.“ The possession of arms also implied the possession of ammunition.” ... "necessary to render those firearms operable.” ... in self-defense ... to effectively load ammunition into the firearm.” ... inserted magazine, or as a separate ammunition feeding component, magazines are usable “arms” within the meaning of the Second Amendment.
As the Third Circuit Court of Appeals found, “[w]e therefore must first determine whether the regulated item is an arm under the Second Amendment. The law challenged here regulates magazines, and so the question is whether a magazine is an arm under the Second Amendment. The answer is yes.” (Page 16)
... State says: (1) a magazine of some size may be necessary, but a magazine larger than 10 rounds is not necessary to operate a firearm and thus a larger magazine is not a protected “arm”; and (2) statistically people rarely fire more than 10 rounds in self-defense so it can be said that a magazine larger than 10 rounds is rarely used for self-defense, and if a larger magazine is not commonly used for self-defense then it is not a protected “arm.”
... Court disagrees. The Supreme Court has not described protected arms in subdivided categories. When Heller found handguns were protected, it did not distinguish between semiautomatic pistols and revolvers. Heller did not classify protected handguns according to the number of rounds one could hold or the caliber of the ammunition that could be fired ... both firearms and their magazines (of all typical sizes) are “arms” covered by the text of the Second Amendment. (Page 17)
As this Court has said before, “[n]either magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment . . . But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.” Using reasoning that is still persuasive, the Ninth Circuit agreed, explaining “[p]ut simply, a regulation cannot permissibly ban a protected firearm’s components critical to its operation.” (Page 18)
... another state law known as the
Unsafe Handgun Act requires new semiautomatic pistols to have an integrated magazine-disconnect mechanism in order to be sold to the public. A
magazine-disconnect mechanism prevents a pistol from firing at all, even if one round is left loaded in the chamber,
if the magazine is not inserted into the pistol. The
state-mandated magazine-disconnect mechanism thus prevents the operation of the firearm without its magazine.
While rifles are not required to have a magazine disconnect mechanism, the
State must concede that at least for semiautomatic handguns the State deems “not unsafe,” firearms for self-defense will not function without a magazine.
Modern magazines, submits the State, are more like founding-era cartridge boxes or “ancillary equipment associated with soldiering” that were not strictly necessary to fire a gun. Today, however,
as pointed out above, some semiautomatic firearms will not function at all without a magazine, while others can fire no more than one round. (Page 19)
... As such, a magazine is an essential component without which a semiautomatic firearm is useless for self-defense. Therefore, a magazine falls within the meaning of “arms.” (Page 20)
... Applying the same measure to magazines, because it is the case that magazines holding more than 10 rounds are owned and possessed by millions of Americans to meet a subjective need for self-defense, this fact alone entitles such magazines to Second Amendment protection. When a magazine is commonly owned by Americans with the subjective intention of using it for self-defense, it is enough to say that it is in common use (or typically used) for self-defense, as the Supreme Court employs the phrase in its opinions. (Page 25)
III. BRUEN AND THE MAGAZINE CAPACITY LIMIT
... This Court concludes, once again, that manufacturing, importing, selling, giving, loaning, buying, receiving, acquiring, possessing, storing, or using commonly-owned magazines capable of holding more than 10 rounds for self-defense at home or in public is protected by the Second Amendment. (Page 36)
A. Remand for Bruen Review
This case was remanded from the United States Court of Appeals for the Ninth Circuit in order to consider the challenged laws under the recent Supreme Court decision in Bruen. Under Bruen, the government must affirmatively prove that its firearm regulation is part of a constitutional historical tradition. It is the same text, history, and tradition standard the Court used in Heller and McDonald. What is different is that the old means-end, interest balancing, tiers-of-scrutiny test is no longer viable. The State now has a second chance to defend its large capacity magazine ban and must do so applying the Bruen test.
Bruen says,
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
i. Already Determined: No Historical Pedigree
This Court previously determined that a ban on magazines able to hold more than 10 rounds has no historical pedigree. (Page 37)
Before Bruen, the State unpersuasively argued that its magazine capacity restriction was analogous to a handful of state machinegun firing-capacity regulations from the 1920’s and 1930’s and one District of Columbia law from 1932—a law the Supreme Court ignored while dismantling the District of Columbia’s handgun ban in Heller. That argument remains unpersuasive today. That was pre-Bruen. Bruen invites a look farther back into the Nation’s history. (Page 38)
V. ANALOGUES
... compared to muskets of the colonial era, a Glock 17 with its 17-round magazine clearly represents a dramatic technological advancement. On the other hand, the lever-action repeating Henry and Winchester rifles popular at the time of the Fourteenth Amendment were already dramatic technological advancements in firearms. These popular lever-action rifles had large tubular magazines that held a lot of ammunition and could be fired multiple times in succession, accurately and quickly. Yet, there are no state prohibitions on possession or manufacture of these lever-action rifles in the State’s law list. (Page 58)
... Government remains fixed on the notion that it alone can decide that anything larger than a 10-round magazine is not “suitable” for a citizen to have. But, there are no analogous cases in our history. There are no cases where American government dictated that lever-action rifles were unsuitable because single shot rifles were good enough, or revolvers were unsuitable because derringers were good enough. These choices have always belonged to the People to decide for themselves how much firepower they need. (Page 68)
... Because the State did not succeed in justifying its sweeping ban and dispossession mandate with a relevantly similar historical analogue, California Penal Code § 32310, as amended by Proposition 63, is hereby declared to be unconstitutional in its entirety and shall be enjoined. (Page 70)