9th Circuit says Mag Capacity Restrictions Unconstitutional

Well crap

jcutonilli said:

Text history and tradition are not always the easiest things to find and interpret. Just look at Peruta. The actual text of past cases suggest that concealed carry can be prohibited. Yet when you look at why they prohibited concealed carry you come to a different conclusion. The plaintiffs in the case never argued this and instead tried to get around the issue by arguing that they banned open carry so you need to allow concealed carry.

Dangerous and unusual is equally difficult for the same reason. The text is not always clear and understanding the intent may not be exactly clear. Nobody is around that could clear this up.

From what I have read "in common use" is the opposite of dangerous and unusual. Typically common use gets into numerical arguments, which leads to circular arguments over whether new things can be banned because they are not really used much. I would argue common use includes all government uses. If the police are allowed to use something, so can everyone else. If the police should be prohibited from using something, than everyone can be prohibited.

We don't have a clearer understanding because we continue to want to look at the 2A as more unlimited than it really is. The arguments that we make need to address the historical limitations that have occurred.

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Thank God we beat the british with bows and arrows along with spears. Funny how people will claim unlimited for the other rights but not the second. Also regardless of if I have a machine gun or tank, really isnt it about the gov not having any right to impede/ limit? So the mother may i should be null and void as well as if i carry on a tuesday on a red moon if not raining bullcrap. Like we say to the other side. Not agree but their right. Now when their freedom to be them impedes my freedom to be me then on like donkey kong. Should not be rights of feel good

Tired of hearing about this crap. You know if you read any of the 2A drafts they all state the obvious. They only edited to not sound verbose. Now when people start arguing over a gd comma and whatever it becomes a joke like that bug eyed donk that is the poster child of the 2000 election hanging clandestine fame. Rabbit hole city

teratos said:

I mean....like, most weapons are just “usually dangerous”. It’s the “UNusually dangerous” ones that we can’t have.

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Probably falls in that category.

babalou said:

Thank God we beat the british with bows and arrows along with spears. Funny how people will claim unlimited for the other rights but not the second. Also regardless of if I have a machine gun or tank, really isnt it about the gov not having any right to impede/ limit? So the mother may i should be null and void as well as if i carry on a tuesday on a red moon if not raining bullcrap. Like we say to the other side. Not agree but their right. Now when their freedom to be them impedes my freedom to be me then on like donkey kong. Should not be rights of feel good

Tired of hearing about this crap. You know if you read any of the 2A drafts they all state the obvious. They only edited to not sound verbose. Now when people start arguing over a gd comma and whatever it becomes a joke like that bug eyed donk that is the poster child of the 2000 election hanging clandestine fame. Rabbit hole city

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What are you talking about?

Who said anything about the limit being bows and arrows?

The text of the 2A certainly states that the the government cannot infringe on the right, but it never states the extent of that right.

I am tired of all the losses in court and the infringements that they cause because of improperly/poorly argued cases. The right is smaller today because everyone wants to argue the case as if there really are not any limitations that can be imposed.

Because

jcutonilli said:

What are you talking about?

Who said anything about the limit being bows and arrows?

The text of the 2A certainly states that the the government cannot infringe on the right, but it never states the extent of that right.

I am tired of all the losses in court and the infringements that they cause because of improperly/poorly argued cases. The right is smaller today because everyone wants to argue the case as if there really are not any limitations that can be imposed.

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So sounding like a gd fortune cookie or horoscope. Either is or is not tired of the fifty shaded of gray. There should not be limitations whatsoever. I said bows and arrows to makeva point that the colonists who raised arms against the British used the same or better weapons than the British. It even made you look at my statement as if i was stupid. Well this is how i feel the gov is treating us. You dont need that. This post enlightened bullshiite is crap. M


Again it either is is not. Tired of the cuck shiite to them.

Sorry i am pissed. There is no extent. False premise. Needs to be full extent. If there was an extent, it would have been in courses. Thanks to some ahole gangsters during a couple weeks in shitcago, we got machine guns banned. Typical gov needing the poweR and scared of the populous and takes away rights to make sure. Wow sounds like pre 1773 all over again.

jcutonilli said:

Text history and tradition are not always the easiest things to find and interpret. Just look at Peruta. The actual text of past cases suggest that concealed carry can be prohibited. Yet when you look at why they prohibited concealed carry you come to a different conclusion. The plaintiffs in the case never argued this and instead tried to get around the issue by arguing that they banned open carry so you need to allow concealed carry.

Dangerous and unusual is equally difficult for the same reason. The text is not always clear and understanding the intent may not be exactly clear. Nobody is around that could clear this up.

From what I have read "in common use" is the opposite of dangerous and unusual. Typically common use gets into numerical arguments, which leads to circular arguments over whether new things can be banned because they are not really used much. I would argue common use includes all government uses. If the police are allowed to use something, so can everyone else. If the police should be prohibited from using something, than everyone can be prohibited.

We don't have a clearer understanding because we continue to want to look at the 2A as more unlimited than it really is. The arguments that we make need to address the historical limitations that have occurred.

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What they argued is that the state chose CC over OC by allowing it statewide (with the license caveat). The historic CCW restrictions were total bans, so obviously CA did not see things the same way or else it would have been banned too. So plaintiffs decided this would be the easiest route to simply "accept" the state's preference on public carry.
But it's clear the state wants to have their cake and eat it too.

jcutonilli said:

What are you talking about?

Who said anything about the limit being bows and arrows?

The text of the 2A certainly states that the the government cannot infringe on the right, but it never states the extent of that right.

I am tired of all the losses in court and the infringements that they cause because of improperly/poorly argued cases. The right is smaller today because everyone wants to argue the case as if there really are not any limitations that can be imposed.

Click to expand...

But if you read the amendment at face value (which I believe it should be), it says the right SHALL NOT BE INFRINGED, therefore in my opinion any law that limits whatever weapon I want to poses is an infringement. There simply should not be any limitations to what you should be allowed to own or poses to defend ones life, liberty, and pursuit of happiness.


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bigmancrisler said:

But if you read the amendment at face value (which I believe it should be), it says the right SHALL NOT BE INFRINGED, therefore in my opinion any law that limits whatever weapon I want to poses is an infringement. There simply should not be any limitations to what you should be allowed to own or poses to defend ones life, liberty, and pursuit of happiness.


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Agreed. Yet there is the statement in Heller...".Like most rights, the Second Amendment right is not unlimited." Mostly erroneous when taken out of contest with the whole paragraph.

teratos
Quote:
Originally Posted by Bob A View Post
I'm having difficulty wrapping my head around the concept of a weapon that is not dangerous. It somehow misses the point, conceptually.
I mean....like, most weapons are just “usually dangerous”. It’s the “UNusually dangerous” ones that we can’t have.

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A man with a gun in his hand isn’t necessarily as dangerous as the gun, in his hand.

Quote: jcutonilli
Text history and tradition are not always the easiest things to find and interpret. Just look at Peruta. The actual text of past cases suggest that concealed carry can be prohibited. Yet when you look at why they prohibited concealed carry you come to a different conclusion. The plaintiffs in the case never argued this and instead tried to get around the issue by arguing that they banned open carry so you need to allow concealed carry.

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Yes, I agree, mostly. Both lawyers and judges in Peruta fail.

https://www.law.cornell.edu/supremecourt/text/18-824

This ^^^^ all great guideance for lawyer, judge and We The People.
I can live with some restriction but not whole sale prohibition. Good and Substantial is prohibition of 2A right to Keep and BEAR arms.

pcfixer said:

Agreed. Yet there is the statement in Heller...".Like most rights, the Second Amendment right is not unlimited." Mostly erroneous when taken out of contest with the whole paragraph.



A man with a gun in his hand isn’t necessarily as dangerous as the gun, in his hand.



Yes, I agree, mostly. Both lawyers and judges in Peruta fail.

https://www.law.cornell.edu/supremecourt/text/18-824

This ^^^^ all great guideance for lawyer, judge and We The People.
I can live with some restriction but not whole sale prohibition. Good and Substantial is prohibition of 2A right to Keep and BEAR arms.

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That one is causing a bit of pondering.

The gun is not dangerous. A tool... it will exist for hundreds of years and harm no one.

The person who uses the gun to cause injury to another for the purpose of greed, avarice, or other evil... is the danger.

The gun in the man’s hand is not the danger... the evil thoughts and intentions of the man holding the gun is the true danger. For if a gun is not available to that man... he will find any other weapon with which he can facilitate his intentions.

Which is but one of the reasons that the 2A must remain unrestricted... uninfringable... so that those of good moral character may be empowered to present a viable defense from/against the evil intentions of those who would be the danger. Whether that be a personal danger or one of tyranny.

RoadDawg said:

That one is causing a bit of pondering.

The gun is not dangerous. A tool... it will exist for hundreds of years and harm no one.

The person who uses the gun to cause injury to another for the purpose of greed, avarice, or other evil... is the danger.

The gun in the man’s hand is not the danger... the evil thoughts and intentions of the man holding the gun is the true danger. For if a gun is not available to that man... he will find any other weapon with which he can facilitate his intentions.

Which is but one of the reasons that the 2A must remain unrestricted... uninfringable... so that those of good moral character may be empowered to present a viable defense from/against the evil intentions of those who would be the danger. Whether that be a personal danger or one of tyranny.

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THIS


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Thank you

RoadDawg said:

That one is causing a bit of pondering.

The gun is not dangerous. A tool... it will exist for hundreds of years and harm no one.

The person who uses the gun to cause injury to another for the purpose of greed, avarice, or other evil... is the danger.

The gun in the man’s hand is not the danger... the evil thoughts and intentions of the man holding the gun is the true danger. For if a gun is not available to that man... he will find any other weapon with which he can facilitate his intentions.

Which is but one of the reasons that the 2A must remain unrestricted... uninfringable... so that those of good moral character may be empowered to present a viable defense from/against the evil intentions of those who would be the danger. Whether that be a personal danger or one of tyranny.

Click to expand...

you explained it better than I.

bigmancrisler said:

But if you read the amendment at face value (which I believe it should be), it says the right SHALL NOT BE INFRINGED, therefore in my opinion any law that limits whatever weapon I want to poses is an infringement. There simply should not be any limitations to what you should be allowed to own or poses to defend ones life, liberty, and pursuit of happiness.


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Lawyers and judges like court games. It keeps them paid and in power. Why would they change that?

The second they use their higher education to read something and take it at face value is the second they loose the ability to make money off of us and continue the infringements.

Someday they are going to make us like canada and austrailia.

RoadDawg said:

That one is causing a bit of pondering.

The gun is not dangerous. A tool... it will exist for hundreds of years and harm no one.

The person who uses the gun to cause injury to another for the purpose of greed, avarice, or other evil... is the danger.

The gun in the man’s hand is not the danger... the evil thoughts and intentions of the man holding the gun is the true danger. For if a gun is not available to that man... he will find any other weapon with which he can facilitate his intentions.

Which is but one of the reasons that the 2A must remain unrestricted... uninfringable... so that those of good moral character may be empowered to present a viable defense from/against the evil intentions of those who would be the danger. Whether that be a personal danger or one of tyranny.

Click to expand...

I agree.

press1280 said:

What they argued is that the state chose CC over OC by allowing it statewide (with the license caveat). The historic CCW restrictions were total bans, so obviously CA did not see things the same way or else it would have been banned too. So plaintiffs decided this would be the easiest route to simply "accept" the state's preference on public carry.
But it's clear the state wants to have their cake and eat it too.

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The 2A addresses issues with respect to infringements of the right. The state is free to allow things that fall outside the right. It can allow limited CCW even if CCW is not part of the right.

The court's jurisdiction is limited to the right. All it can do is strike down laws that infringe on the right. If CCW is outside the right, it has no power to strike down that law. If CCW is outside the right the only option for the court would be to strike down the laws banning OC, because that is the only laws infringing on the right. Peruta never asked for the OC to be overturned.

If Peruta wanted the CCW provisions to be overturned you need to make an argument why CCW is now part of the right. Given my understanding as to why CCW was historically prohibited, I don't think it would be difficult to make that case, but you do need to make the case given the historical precedents.

Duncan and the 2A

Judge Lee (Trump appointee) following 9th Circuit precedent used an interest- balancing test, i.e., strict scrutiny for the win. He then proceeded to reach the same result using balancing by means of an intermediate scrutiny analysis . . . probably as a pre-emptive strike at an en banc reversal. At any rate, any en banc panel is likely to be made up of mostly Liberals, who probably will use interest-balancing via intermediate scrutiny as outlined in Judge Lynn’s (Clinton appointee) dissent to reverse the three Judge panel’s ruling.

Balancing the govt.’s interest in safety v. the 2A was not endorsed in Heller. (1) During the past decade Liberal political philosophy and personal opinions (dressed up in interest - balancing terminology) have dominated 2A litigation outcomes. Duncan now faces post Heller reality. Safety v. 2A balancing occurs mostly in the eye of the beholder, e.g., many are completely convinced the evidence shows public safety can be enhanced by more gun restrictions, while others are entirely certain the evidence proves public safety would be improved by an additional right to carry. When confronted with a challenge to a “gun control” law, it matters little to Liberals whether supporting evidence for the law is conflicted, or weak, or not credible, or completely absent . . . a Liberal Court will automatically tip the balance in favor of Liberal legislative “fact” finding. (2)

Judge Easterbrook (a “conservative”) went so far as to say in Friedman v. Highland Park, “If a ban on . . . large capacity magazines makes the public feel safer . . . that is a substantial benefit.”(3) Curtailment of the 2A (with safety the ostensible reason) is an option baked into the intermediate scrutiny cake, and likely was one reason for the rejection of balancing (mooting the safety debate) when Heller was decided in 2008. Liberal lower court Judges immediately countered by confining Heller to “the home,” and defying Heller’s rejection of balancing. (4) The text, history, and tradition 2A assessment (sanctioned by Heller) is a fact based inquiry, not entailing the subjective, easy to manipulate process of balancing. (5) It is apparent that in case after case, year after year judicial balancing outcomes (many reached by deference to Liberal legislators) have been driven by a deep Liberal distrust of “the right of the people . . . . ” Those who think the 2A (assuming an interest – balancing environment) has a better chance in a Liberal Court (e.g., the probable Duncan en banc panel) than a snowball in hell ought to take a complete look at Breyer’s dissent in Heller, which for practical purposes puts the 2A at the mercy of legislators, and is controlling (not cited) law in many, maybe most, jurisdictions. (6)

In short (excepting Caetano (7)) Kennedy and/or Roberts (by blocking cert in numerous cases during the past decade) effectively granted 2A veto power to liberal Judges resulting in Breyer’s “balancing inquiry” being used (in many jurisdictions) to essentially neuter Heller. (8).

Given political trends and the probable legislative / judicial consequences, more Trump appointees, and the Heller text, history, and tradition test may be the last, best hope for Duncan, and for the 2A. (9)

Regards
Jack


1.“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach.” https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority (62- 63)
2. The Second Amendment as a Normal Right http://cdn.harvardlawreview.org/wp-content/uploads/2014/04/Gura-Final.pdf pages 225, and 226.
3. https://www.scotusblog.com/wp-content/uploads/2015/10/Highland-park-op-below.pdf page 11.
4. “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Judge (now Justice) Kavanagh dissenting in Heller 11. 670 F 3d 1211 at 1271, or see
https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf at pages 5, 24, 25 of the Kavanagh dissent.
5. “A subjective test with which a court weighs competing interests . . .” https://www.law.cornell.edu/wex/balancing_test
6. “I would simply adopt such an interest-balancing inquiry explicitly.” https://www.law.cornell.edu/supct/html/07-290.ZD1.html Sec. III para. 5
7. "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 … .” Caetano v. Mass https://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf
8. “Justices Breyer’s Triumph . . . .” https://www.gwlr.org/wp-content/uploads/2018/04/80-Geo.-Wash.-L.-Rev.-703.pdf
9. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ (62 - 63)

bigmancrisler said:

But if you read the amendment at face value (which I believe it should be), it says the right SHALL NOT BE INFRINGED, therefore in my opinion any law that limits whatever weapon I want to poses is an infringement. There simply should not be any limitations to what you should be allowed to own or poses to defend ones life, liberty, and pursuit of happiness.


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You are not reading it correctly. As stated previously, the 2A states that the RIGHT shall not be infringed. The problem with your interpretation is that you have not actually defined what the right is. The statement itself does not address what falls within the right and what falls outside the right.

The problem is that Heller never really addressed the scope of the right. SCOTUS certainly has said enough to demonstrate that it is not an unlimited right, which seems to contradict your interpretation.

jcutonilli said:

You are not reading it correctly. As stated previously, the 2A states that the RIGHT shall not be infringed. The problem with your interpretation is that you have not actually defined what the right is. The statement itself does not address what falls within the right and what falls outside the right.

The problem is that Heller never really addressed the scope of the right. SCOTUS certainly has said enough to demonstrate that it is not an unlimited right, which seems to contradict your interpretation.

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okay. You have been repetative with the statement.
The Supreme Court has protected many rights not listed explicitly in the Bill of Rights, although it has not used the Ninth Amendment, which protects, “other rights not listed”, very often.

Sir, would you like to expound on a 2A that falls within the right and one that does not? Sir, Please at least one in each that does and one that does not?

Would this be a right under 2A not listed?

18 U.S. Code §§ 926B & 926C allows qualified Law Enforcement officers (LEOs) and qualified retired LEOs (RLEOs) or those separated from service in good standing to carry a concealed firearm in any jurisdiction in the United States, regardless of state or local laws, with some exceptions

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Bingo

randomuser said:

Lawyers and judges like court games. It keeps them paid and in power. Why would they change that?

The second they use their higher education to read something and take it at face value is the second they loose the ability to make money off of us and continue the infringements.

Someday they are going to make us like canada and austrailia.

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^^^^^
This!

pcfixer said:

Would this be a right under 2A not listed?

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Technically, LEOSA would be a privilege under law, not a right. The fact LEOSA exists at all is a problem because it presumes carry is a privilege that Congress needs to grant, otherwise the law would not need to exist.

RoadDawg said:

That one is causing a bit of pondering.

The gun is not dangerous. A tool... it will exist for hundreds of years and harm no one.

The person who uses the gun to cause injury to another for the purpose of greed, avarice, or other evil... is the danger.

The gun in the man’s hand is not the danger... the evil thoughts and intentions of the man holding the gun is the true danger. For if a gun is not available to that man... he will find any other weapon with which he can facilitate his intentions.

Which is but one of the reasons that the 2A must remain unrestricted... uninfringable... so that those of good moral character may be empowered to present a viable defense from/against the evil intentions of those who would be the danger. Whether that be a personal danger or one of tyranny.

Click to expand...

I understand what you are saying, but the term dangerous can be interpreted to include possible injuries. I would not argue that it is not dangerous.

I would certainly agree that it is a tool. What I would add is that it is a tool that can be used for good as well as evil. You sort of say it but not explicitly.

The problem is not the gun itself, but how it is used. It certainly seems that the government can impose certain restrictions that address these negative aspects, without impacting the positive uses.

I think we do a poor job of presenting the positive uses. Simply saying it is my right seems like a poor reason. Saying that we play a vital role in public safety seems like a much better reason.

Ok

Can someone explain to a non lawyer

Are standard mags ok now or what

If not, what needs to happen for them to be do?

And if they are legal nationally because it’s unconstitutional for them not to be infringed upon how long before frp she’s head explodes and can we watch that on PPV?