9th Circuit says Mag Capacity Restrictions Unconstitutional

[jcutonilli]

That’s some ********


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They admitted that the stay is no longer valid from April 2019, because they lost the appeal.

I am guessing, they are intentionally trying to obfuscate the truth of the matter.

Sounds to me like their law was declared unconstitutional AGAIN and they need to file another stay order if they want to continue to enforce it while they file an enbanc appeal, but IANAL

That's how I understand it also.

Would you rather read it from the National Shooting Sports Foundation?
https://www.nssf.org/duncan-v-becerra-important-industry-advisory/

They say the same thing.

 

[MigraineMan]

They admitted that the stay is no longer valid from April 2019, because they lost the appeal.

I am guessing, they are intentionally trying to obfuscate the truth of the matter.

California could completely peel-off the western US as a result of the mass and momentum of the influx ...

I agree that this sounds like a backhanded admission that the original stay, which was pending appeal, is now voided because said appeal was lost. I have difficulty believing that any judge, even a prog-lib one, would issue a stay "pending all possible legal appeal avenues conceivable."

 

[Inigoes]

Would you rather read it from the National Shooting Sports Foundation?
https://www.nssf.org/duncan-v-becerra-important-industry-advisory/

They say the same thing.

What is meant by:

The appellate proceedings have not concluded or been finally resolved, so the stay remains in place.

Does it mean the original judge has to lift the appeal?
Does it mean the Appellate court did not issue a binding opinion?

Or do Californians have to wait until the Supreme Court rejects a petition for cert?

The guidance the NSSF says "should not", instead of "they can't"

members of the industry should continue to refrain from selling or shipping into California LCMs until after the appeal proceeding is concluded or the stay is modified or lifted.

I understand the cautious approach of industry, because they will be held liable. Industry is waiting for something substantial to clarify the current situation.

 

[Occam]

May that NEVER happen!!! Why turn your constituents into criminals overnight?

Your mistake is in thinking that they consider you or any of us to be constituents. Mike Bloomberg is their constituent.

 

[Mtwoodson]

From NSSF

AUGUST 18, 2020

DUNCAN V. BECERRA: IMPORTANT INDUSTRY ADVISORY
We have been asked by California retailers, distributors and ammunition magazine manufacturers across the industry whether Friday’s landmark decision by the U.S. Court of Appeals for the 9th Circuit in Duncan v. Becerra means they can now sell to California consumers, ship to California retailers or manufacture in the state for commercial sale in the state ammunition magazines capable of holding more than 10 rounds of ammunition (so-called “Large Capacity Magazines” or LCM). The short answer is “NO.”

While the holding in Duncan is a tremendous victory for the Second Amendment, members of the industry should continue to refrain from selling or shipping into California LCMs until after the appeal proceeding is concluded or the stay is modified or lifted. This is because the U.S. District Court’s Order Staying In Part Judgment Pending Appeal, dated April 4, 2019, remains in effect “pending final resolution of the appeal from the Judgment.” The appellate proceedings have not concluded or been finally resolved, so the stay remains in place.

Stay tuned. NSSF will update you on developments, including when the appeal is over and you can sell standard-sized magazines in California.

 

[Crusty ol' sarge]

The Constitution is clear and unambiguous: citizens have the right to arm themselves with weapons suitable for militia duty.

 

[jcutonilli]

What is meant by:



Does it mean the original judge has to lift the appeal?
Does it mean the Appellate court did not issue a binding opinion?

Or do Californians have to wait until the Supreme Court rejects a petition for cert?

The guidance the NSSF says "should not", instead of "they can't"



I understand the cautious approach of industry, because they will be held liable. Industry is waiting for something substantial to clarify the current situation.

You can read the original stay here
https://michellawyers.com/wp-conten...r-Staying-in-Part-Judgment-Pending-Appeal.pdf

Opinions are not binding when issued. You need to wait for the court to issue a formal mandate. The rules are governed by FRAP 41
https://www.law.cornell.edu/rules/frap/rule_41
It essentially does not happen until any appeals have been exhausted such as en banc. This includes any cert petition.

I believe NSSF says should because they can't prevent you from do anything illegal.

 

[Malthus]

And yet we still have never-Trumpers out there that are so incensed at, say, his limited public speaking vocabulary or willingness to fire/hire for key positions any time and any way he sees fit ... that they'd rather give the 9th back to the far left out of spite. Little victories like this - which may have very far-reaching consequences, ultimately even here in MD - are the payoff for the investment in voting for Trump and tolerating his personality.

There's quite a bit more than his personality/vocabulary at issue. Honor, integrity, and honesty mean something. At least I hope everyone on this forum brings up their children to believe so.

Could take up the next 20 pages posting videos of him saying/doing things. But as he said himself "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters".
https://www.snopes.com/fact-check/donald-trump-fifth-avenue-comment/

 

[tailgunner]

It'll never happen here in communist md.

 

[Occam]

There's quite a bit more than his personality/vocabulary at issue. Honor, integrity, and honesty mean something. At least I hope everyone on this forum brings up their children to believe so.

Could take up the next 20 pages posting videos of him saying/doing things. But as he said himself "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters".

And then you go right ahead and DO show that it’s speaking style you can’t stand, not his policy positions (compared to the alternatives). You and everyone else know that his “5th Avenue” remark was rhetorical, pointing out how dreadful his supporters considered the possibility of giving the White House back to the totally corrupt Clinton machine. You know, everybody knows it. Would a professional speaker have made the exact same joke using a different imaginary example? Sure. But luckily his predecessor - the professional speaker and wretched example of the “honor” and “integrity” you’re concerned about - didn’t get to pass the baton back to the Clintons.

 

[JB01]

Whatever I think of Mr. Trump's "speaking style" is put aside when considering the possibility of Mr. Biden and Ms. Harris choosing justices.
JB

 

[adit]

Whatever I think of Mr. Trump's "speaking style" is put aside when considering the possibility of Mr. Biden and Ms. Harris choosing justices.
JB

Possibly 3-5 of them in the next 4 years.

RBG - Knocking on Hell's door
Breyer - Getting old
Sotomayer - Health issues - Diabeetus
Thomas - May choose to bail during T45 second term

Longshot:
Roberts - If he keeps falling down he may have to throw in the towel

 

[lemmdus]

Don't forget the more likely scenario: the General Assembly demands beer holding and passes an actual possession ban so you can't bring 10+ in from out of state. You know it's on their short list.

Which we will promptly ignore!

 

[SFbrah]

Thank you Trump for flipping the 9th circuit.

 

[pcfixer]

“The Second Amendment isn’t absolute. It has its limits.” This is not an excuse, it is essentially what Heller stated. More specifically Heller stated "Like most rights, the Second Amendment right is not unlimited."

While you will not find an asterisk, you will find a number of historic case that have historical prohibitions such as concealed carry. To ignore these issues and insist that it is an absolute right is a position that is demonstrably false. You will continue to loose because you don't have a base to stand on.

There are ways to address these issues, just don't claim it is an absolute right.

So... scope and limitations..... From Rogers v Grewal.

To determine that scope, we analyzed the original meaning of the Second Amendment’s text as well as the historical understanding of the right. We noted that “limitation” on the right may be supported by “historical tradition,” but we declined to “undertake an exhaustive historical analysis

Yes, Text, History and Tradition.....

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

Wrenn...The court vacated the district courts' orders and remanded with instructions to enter permanent injunctions against enforcement of the good-reason law.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
https://www.law.cornell.edu/supct/html/07-290.ZS.html

So from this text of DC v Heller is quite clear. Exception for most is what is the text, history and Tradtion of "dangerous and unusual weapons"?

Heller correctly observed that the Second Amendment protects an entirely fundamental, individual right “to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms,” and concluded, therefore, that the District’s ban on the possession of handguns was unconstitutional.
That the right to arms is limited to those that are “in common use” and, therefore, the federal law that prohibits the private possession of a fully-automatic firearm
manufactured after May 19, 1986—an arguably uncommon type of firearm, in part because of that law—is not unconstitutional.

However, as America’s leading Second Amendment historian, attorney Stephen Halbrook, explained in “Going Armed With Dangerous And Unusual Weapons To The Terror Of The People: How The Common Law Distinguished The Peaceable Keeping And Bearing Of Arms,” weapons have not generally been considered “dangerous and unusual” in and of themselves, nor if they have been carried in a peaceable manner, but rather if they have been carried in a manner apt to terrify people. As an early example, Halbrook noted, “it was an offense under the (English) Statute of Northampton (1328) to go or ride armed in a manner that creates an affray or terror to the (King’s) subjects. It was not an offense simply to carry arms in a peaceable manner.”

So, We as a Nation of gun owners still to this day do not have any clearer understanding of Second Amendment is not unlimited. Maybe a few steps closer. For sure there is no judge or court that has adopted confiscation other than ERPO's but not wholesale in 50 states.

Is the Brady law and NICS check considered a limitation or scope of 2A right? Edit.... Bans on magazine size are neither a scope or limitation.

 

[shadow116]

"Judge Kenneth K. Lee wrote the majority opinion"

"Judge Lee is the nation's first Article III judge who was born in the Republic of Korea and the second Korean American to serve on the Ninth Circuit."

"Judge Lee grew up in the Koreatown neighborhood of Los Angeles."

I would venture to guess that Judge Lee's experiences during the LA riots in his neighborhood had an influence on this decision.

 

[pcfixer]

https://michellawyers.com/wp-content/uploads/2020/08/2020-08-14-Opinion.pdf

From Opinion..

The Second Amendment “guarantees the right to carry
weapons ‘typically possessed by law-abiding citizens for
lawful purposes.’” Caetano v. Massachusetts, 136 S. Ct.
1027, 1030 (2016) (Alito, J., concurring) (per curiam)
(quoting Heller, 554 U.S. at 625).

“A weapon may not be banned unless it is both dangerous and unusual.” Id. at 1031.
In addressing “unusualness,” the Supreme Court held 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.”
Id. at 1030
(quoting Heller, 554 U.S. at 582). In other words, just because a weapon was not in existence during the founding
era does not mean it is “unusual.” And, where a “weapon belongs to a class of arms commonly used for lawful
purposes,” “the relative dangerousness of a weapon

 

[jcutonilli]

So... scope and limitations..... From Rogers v Grewal.
Yes, Text, History and Tradition.....



So from this text of DC v Heller is quite clear. Exception for most is what is the text, history and Tradtion of "dangerous and unusual weapons"?

Heller correctly observed that the Second Amendment protects an entirely fundamental, individual right “to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms,” and concluded, therefore, that the District’s ban on the possession of handguns was unconstitutional.
That the right to arms is limited to those that are “in common use” and, therefore, the federal law that prohibits the private possession of a fully-automatic firearm
manufactured after May 19, 1986—an arguably uncommon type of firearm, in part because of that law—is not unconstitutional.

However, as America’s leading Second Amendment historian, attorney Stephen Halbrook, explained in “Going Armed With Dangerous And Unusual Weapons To The Terror Of The People: How The Common Law Distinguished The Peaceable Keeping And Bearing Of Arms,” weapons have not generally been considered “dangerous and unusual” in and of themselves, nor if they have been carried in a peaceable manner, but rather if they have been carried in a manner apt to terrify people. As an early example, Halbrook noted, “it was an offense under the (English) Statute of Northampton (1328) to go or ride armed in a manner that creates an affray or terror to the (King’s) subjects. It was not an offense simply to carry arms in a peaceable manner.”

So, We as a Nation of gun owners still to this day do not have any clearer understanding of Second Amendment is not unlimited. Maybe a few steps closer. For sure there is no judge or court that has adopted confiscation other than ERPO's but not wholesale in 50 states.

Is the Brady law and NICS check considered a limitation or scope of 2A right? Edit.... Bans on magazine size are neither a scope or limitation.

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.

 

[Bob A]

I'm having difficulty wrapping my head around the concept of a weapon that is not dangerous. It somehow misses the point, conceptually.

 

[teratos]

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.