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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #721  
Old 05-14-2018, 12:55 PM
BryMan92 BryMan92 is offline
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Considering this was not with regards to a Second Amendment claim, and apparently largely on property rights, I think legal counsel did very well.

The reason the State does not want the PI, in my eyes, is because it means all these magazines will have to go away so none will remain (or else are you really law-abiding?).
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  #722  
Old 05-14-2018, 3:34 PM
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Wow council for Duncan was soooo much better than opposition.
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  #723  
Old 05-14-2018, 4:01 PM
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Originally Posted by cockedandglocked View Post
It would be very delightful if the State's and Newsom's attempt to ban possession of the LCMs that have been illegal to acquire for almost 2 decades inadvertently caused the whole law to to get tossed That would be quite the embarrassing backfire, and perhaps a lesson to leave "good enough" alone.
This is what we need to push for. Each new ban is another chance to set what the laws should be not out rights up to a popular vote. I don't think Newsome will ever get over his grandfather complex. He will only stand down it he thinks he has something to lose.
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  #724  
Old 05-14-2018, 4:49 PM
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Thanks for the link, guys. Hoping it goes our way. We need good news on the legal front.
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  #725  
Old 05-14-2018, 6:04 PM
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2:07:30

Judge touches on an important issue that I was wondering about.
Very interesting to see him bring it up.
One taking leads to another.
If they take the mags, then they can take the guns.
If they can't take the mags, they can't take the guns either.
While a gun taking is not the issue in the case, I was wondering what protection for gun possession might be if mags are protected.
Both guns and mags are property.
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  #726  
Old 05-14-2018, 7:19 PM
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Its good that a judge is seeing the progressive incrementalism at work as well.
That's how we could lose it all...one little bite at a time until there's nothing left of the right except some words on paper that everyone ignores.
At least we're not the only ones noticing it happening.
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  #727  
Old 05-14-2018, 8:16 PM
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Quote:
Originally Posted by ojisan View Post
2:07:30

Judge touches on an important issue that I was wondering about.
Very interesting to see him bring it up.
One taking leads to another.
If they take the mags, then they can take the guns.
If they can't take the mags, they can't take the guns either.
While a gun taking is not the issue in the case, I was wondering what protection for gun possession might be if mags are protected.
Both guns and mags are property.
I think one complication is that the state is suggesting a permanent change to the property (magazine) then it isn't a taking. If a forced modification isn't a taking them how do they force a semiautomatic to be modified?
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  #728  
Old 05-14-2018, 9:27 PM
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Quote:
Originally Posted by ojisan View Post
2:07:30

Judge touches on an important issue that I was wondering about.
Very interesting to see him bring it up.
One taking leads to another.
If they take the mags, then they can take the guns.
If they can't take the mags, they can't take the guns either.
While a gun taking is not the issue in the case, I was wondering what protection for gun possession might be if mags are protected.
Both guns and mags are property.
The state wants the injunction gone. They want the precedence to ban the possession so they can ban the possession of our RAW's. Then ban possession of all semi automatic weapons in the state. Doesn't matter if it's Constitutional or not they want to do it and will if this injunction fails.
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  #729  
Old 05-15-2018, 7:51 PM
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Court video here: https://www.ca9.uscourts.gov/media/v...vid=0000013644

My observations from watching it:

- 1 judge did not ask one question or make one statement
- other two judges fully engaged
- No iPads in front of judges!
- State's argument to reverse the injunction is that the court abused it's discretion...I think this argument is annoying the 9th circuit...
- Judges were pushing back saying this case is on a faster track...so why not just wait for it to play out
- Judges were trying to avoid getting into the merits of the original case (with respect to 2A and Takings)
- Both attorneys were prepared and well spoken

I was shocked by a couple of lines from the state attorney:

1. They called the grandfathering idea a "possession loophole" and referenced something Sunnyvale did long before the fed ban of 94
2. The state is taking anything from you since you can modify your magazine and keep it

I think you'll see these arguments become more mainstream if they work ultimately in this case.

BTW: State keeps refering to an exhibit called Mayors Against Illegal Guns Survey as their main comprehensive analysis (that's how I understood it). Never heard of it before. I think some digging is needed.

Update, with respect to the "mayors" org, the injunction footnote says the following:

Mayors Against Illegal Guns is apparently not a pro-gun rights organization. According
to Wikipedia, it was formed by Mayor Michael Bloomberg. Mayor John Tkazik of
Poughkeepsie, New York, resigned along with fifty others in 2014, explaining that the
organization: “under the guise of helping mayors facing a crime and drug epidemic,
MAIG intended to promote confiscation of guns from law-abiding citizens.” Later in
2014, it merged with another group and became “Everytown For Gun Safety.”

I would read this to say that the judge discounted their work. Also, in the injunction there is a section with the title of this organization.

Last edited by nikonmike5; 05-15-2018 at 8:19 PM..
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  #730  
Old 05-15-2018, 8:53 PM
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At about 15:10 the State explains that the reason we need a new law preventing anyone from having these magazines is because the state was incapable of enforcing the law they wrote the last time around.

Also at one point he makes the argument that all the grandfathered mags have to go because even if the owner does not use them for a crime they might be stolen. Well, THAT argument applies equally to the standard capacity mags owned by LEO and former LEO and yet I believe they will still get to keep theirs, or am I wrong on that?
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  #731  
Old 05-15-2018, 9:05 PM
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Originally Posted by MajorCaliber View Post
Also at one point he makes the argument that all the grandfathered mags have to go because even if the owner does not use them for a crime they might be stolen.
It also would apply to guns, and cars, and knives, and baseball bats, and.....
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  #732  
Old 05-15-2018, 11:24 PM
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My Magic 8-Ball says the DoJ loses on the appeal of the PI.
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  #733  
Old 05-16-2018, 8:17 AM
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Yes, those were the two things that stuck out for me as well. Both are piss poor excuses.

Quote:
Originally Posted by MajorCaliber View Post
At about 15:10 the State explains that the reason we need a new law preventing anyone from having these magazines is because the state was incapable of enforcing the law they wrote the last time around.

Also at one point he makes the argument that all the grandfathered mags have to go because even if the owner does not use them for a crime they might be stolen. Well, THAT argument applies equally to the standard capacity mags owned by LEO and former LEO and yet I believe they will still get to keep theirs, or am I wrong on that?
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  #734  
Old 05-16-2018, 10:19 AM
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Originally Posted by mit31 View Post
Yes, those were the two things that stuck out for me as well. Both are piss poor excuses.
Yep.

"It's too hard to enforce the first version of the law." - Well, you should've thought about that when you passed the law. You made your bed, now lay in it.

"People shouldn't own things that could cause harm if someone were to steal them." - It's complete insanity to start banning things simply because of what might happen if an unauthorized person stole it.

I have an idea. How about a mandatory 20 year prison sentence for people who steal "large capacity" magazines. Life sentence for a second conviction. I wonder how many stolen magazines there would be after that.

They give all these criminals a light slap on the wrist and set them free and then they wonder why guns still get stolen and crime doesn't go down. Then, instead of being harder on crime, they try to solve it by making everyone get rid of everything that might be tempting for criminals to steal.

It's apparently our fault, for having stuff. It's not the criminals' faults that they stole it. Just ask their parents and the progressive liberals that stand behind them - they'll universally tell you that they're "good boys that took a wrong turn and just need a little guidance."

No, they don't need guidance, they need a justice system that doesn't let them get away with it the first few times they get caught.

Last edited by cockedandglocked; 05-16-2018 at 10:21 AM..
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  #735  
Old 05-16-2018, 3:52 PM
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Quote:
Originally Posted by cockedandglocked View Post
Yep.

"It's too hard to enforce the first version of the law." - Well, you should've thought about that when you passed the law. You made your bed, now lay in it.

"People shouldn't own things that could cause harm if someone were to steal them." - It's complete insanity to start banning things simply because of what might happen if an unauthorized person stole it.

I have an idea. How about a mandatory 20 year prison sentence for people who steal "large capacity" magazines. Life sentence for a second conviction. I wonder how many stolen magazines there would be after that.

They give all these criminals a light slap on the wrist and set them free and then they wonder why guns still get stolen and crime doesn't go down. Then, instead of being harder on crime, they try to solve it by making everyone get rid of everything that might be tempting for criminals to steal.

It's apparently our fault, for having stuff. It's not the criminals' faults that they stole it. Just ask their parents and the progressive liberals that stand behind them - they'll universally tell you that they're "good boys that took a wrong turn and just need a little guidance."

No, they don't need guidance, they need a justice system that doesn't let them get away with it the first few times they get caught.
The 20 year sentence thing would be just as unenforceable as the original law unless they required us to put identifiable markings on each mag which is a road I do not want to go down.

As far as the things that bad guys could steal and do bad things with argument... that is a dangerous slippery slope... just items on my property alone that come to mind as I type... guns, ammo, standard cap mags, fertilizer (could be used as an oxidizer), a tank of diesel (ironically right next to the fertilizer storage right now), Phos-Toxin (poison gas tablets for killing squirrels), knives (stabbings are on the rise), two diesel trucks (a lot of vehicle attacks going on in Europe), hammers (bludgeoning), pipe tobacco (someone could give it to kids )... the list goes on
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  #736  
Old 05-16-2018, 7:46 PM
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I was thinking how they asked repeatedly about why California is even trying to appeal the PI, since the district judge was pushing the the case thru rather quickly. They said something like a couple months there would be a final decision.

I suspect it's because there's a big election coming up, and one of the people who got the law on the 2016 ballot is running. Gavin wants to claim victory, and start saying that his laws are reducing crime or some other lies.

Otherwise, the oral arguments seemed like a slam dunk. The state seemed the have little to stand on. The three judge panel has their hands tied because they have to find "abuse of power" which seems to be a high bar.
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  #737  
Old 05-16-2018, 8:36 PM
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Any guesses as to when they will give their decision. I know 2 weeks. Bla Bla, Bla
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  #738  
Old 05-17-2018, 7:36 AM
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Any guesses as to when they will give their decision. I know 2 weeks. Bla Bla, Bla
In this case that's probably a pretty accurate guess actually. Maybe a month. This is a case the 9th didn't even want to hear, and has a really low priority/relevence, they probably just want to get it off their desk.

On the plus side, for once, the 9th dragging their feet actually doesn't hurt us at all, they can take as long as they want for all I care.
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  #739  
Old 05-17-2018, 8:39 AM
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Returning to the State's silly argument that all the grandfathered mags owned by mere citizens have to go because of the hazard of them being stolen, yet LEO and former LEO get to keep theirs, I'd love to know just what percentage that is.

Given that in the last 18+ years, the only legal 10+mags have been brought into the state by LEO and former LEO, while at the same time the pool owned by non-LEO has been deprecated by people dying, moving, or modifying their mags in anticipation of the law, I would not be surprised if the majority of the 10+ mags in people's homes are not even touched by this law.

Does anybody have any info or even an educated guess on this?
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  #740  
Old 05-17-2018, 1:55 PM
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Originally Posted by MajorCaliber View Post
Returning to the State's silly argument that all the grandfathered mags owned by mere citizens have to go because of the hazard of them being stolen, yet LEO and former LEO get to keep theirs, I'd love to know just what percentage that is.

Given that in the last 18+ years, the only legal 10+mags have been brought into the state by LEO and former LEO, while at the same time the pool owned by non-LEO has been deprecated by people dying, moving, or modifying their mags in anticipation of the law, I would not be surprised if the majority of the 10+ mags in people's homes are not even touched by this law.

Does anybody have any info or even an educated guess on this?
That is impossible to ascertain. I own none, but just think about it, how hard is it to throw a couple (dozen) in your trunk when passing through Nevada or Arizona? It isn't as if the DA can tell the difference between one made in 1999 and one or more recent vintage (absent obvious markers such as that style of mag wasn't produced back then). Do you really think that when a legal owner dies those mags actually make it to the police for destruction? Or how about people who took those pinned mags and unpinned them?
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  #741  
Old 05-17-2018, 3:20 PM
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That is impossible to ascertain. I own none, but just think about it, how hard is it to throw a couple (dozen) in your trunk when passing through Nevada or Arizona? It isn't as if the DA can tell the difference between one made in 1999 and one or more recent vintage (absent obvious markers such as that style of mag wasn't produced back then). Do you really think that when a legal owner dies those mags actually make it to the police for destruction? Or how about people who took those pinned mags and unpinned them?
The rebuild issue also complicates things, and IIRC, up until a few years ago, wasn't it in theory legal to retain magazines that you found abandoned and also not technically illegal to receive or purchase, but only to manufacture, import, sell, offer for sale, lend, give, or cause these things to happen? That would further muddy the waters if that was indeed the case.
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  #742  
Old 05-17-2018, 3:23 PM
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not technically illegal to receive or purchase, but only to manufacture, import, sell, offer for sale, lend, give, or cause these things to happen? That would further muddy the waters if that was indeed the case.
The law specifically says it is illegal to receive them (which, by definition, includes buying, finding on the ground and keeping, and whatever other creative ways you can invent to find yourself in possession of magazines that you did not previously have. Even if they hypothetically materialized in your gun safe out of thin air, you still "received" them because "you did not have them before, but now you do."

If there were sneaky ways to legally get LCMs that you didn't own before 2000, it would be pretty well known by now.

Last edited by cockedandglocked; 05-17-2018 at 3:39 PM..
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  #743  
Old 05-17-2018, 4:16 PM
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Originally Posted by cockedandglocked View Post
The law specifically says it is illegal to receive them (which, by definition, includes buying, finding on the ground and keeping, and whatever other creative ways you can invent to find yourself in possession of magazines that you did not previously have. Even if they hypothetically materialized in your gun safe out of thin air, you still "received" them because "you did not have them before, but now you do."

If there were sneaky ways to legally get LCMs that you didn't own before 2000, it would be pretty well known by now.
I could've sworn that up until a few years ago that language was absent from the law. I could've swornt hat I read that here, actually.
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  #744  
Old 05-17-2018, 4:17 PM
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I could've sworn that up until a few years ago that language was absent from the law. I could've swornt hat I read that here, actually.
Ah, you may be correct, I only know how it's written currently
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Old 05-17-2018, 4:57 PM
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Ah, you may be correct, I only know how it's written currently
My recollection could be totally incorrect. I keep thinking that 2014 is when the language was updated, but I could be confusing that with other bad legislation we got that year.
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  #746  
Old 05-17-2018, 5:43 PM
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Ah, you may be correct, I only know how it's written currently
Yes, 'receive' was added to the law: 2013's AB 48, effective for 2014.
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  #747  
Old 05-18-2018, 4:16 AM
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Yes, 'receive' was added to the law: 2013's AB 48, effective for 2014.
Does there need to be an intent element ? I would think that you couldn't be guilty of that law if you did not intend to violate it. So for example if the magazine broke in some way and suddenly accepted 11 rounds.

I was thinking about it in relation to Hillary's "gross negligence" regarding classified documents and top secret documents. Comey cleared her because she had no intent to break the law. In that case tho the "gross negligence" doesn't require intent.
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Old 05-18-2018, 8:59 AM
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Does there need to be an intent element ? I would think that you couldn't be guilty of that law if you did not intend to violate it. So for example if the magazine broke in some way and suddenly accepted 11 rounds.

I was thinking about it in relation to Hillary's "gross negligence" regarding classified documents and top secret documents. Comey cleared her because she had no intent to break the law. In that case tho the "gross negligence" doesn't require intent.
Librarian will probably clarify, but there was also a three year statute of limitation to part of the law. So you would have to prove any of the above occurred within the last 36 months.
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  #749  
Old 05-18-2018, 9:13 AM
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It all depends if they make it a general intent vs. specific intent provision.

General intent requires no specific actions in order to be a violation - mere possession would be enough.
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  #750  
Old 05-18-2018, 9:25 AM
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Librarian will probably clarify, but there was also a three year statute of limitation to part of the law. So you would have to prove any of the above occurred within the last 36 months.
Gross negligence without intent is crap. It would require Hillary to prove that instead of just doing nothing that she did something to uphold what was required of her. So did she have backups of her email server? Did she have a security audit? What steps did she take to insure a high level of security? Oh none, ya there is your intent.
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  #751  
Old 05-19-2018, 12:03 PM
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My take on why the state wants to eliminate the PI -- it wants to take advantage of Heller's statement that you can ban "dangerous and unusual" weapons.

Specifically, if the PI is lifted then the magazines become instantly "unusual" in CA because they're illegal (just as machine guns weren't "unusual" before the NFA (sold in Sears catalogs to the public) and FOPA's ban on new automatics in '86, but are considered "unusual" now).
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  #752  
Old 05-19-2018, 12:31 PM
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My take on why the state wants to eliminate the PI -- it wants to take advantage of Heller's statement that you can ban "dangerous and unusual" weapons.

Specifically, if the PI is lifted then the magazines become instantly "unusual" in CA because they're illegal (just as machine guns weren't "unusual" before the NFA (sold in Sears catalogs to the public) and FOPA's ban on new automatics in '86, but are considered "unusual" now).
I think dangerous and unusual would have to apply across the U.S. not just inside California. Magazines would never be considered this since the vast majority of guns use 10+ round magazines.
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  #753  
Old 05-19-2018, 3:04 PM
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I think dangerous and unusual would have to apply across the U.S. not just inside California. Magazines would never be considered this since the vast majority of guns use 10+ round magazines.
While that would be my argument and I think Heller is in accord, this state's Legislature and Judges (and the 9th's judges) don't seem to care about the actual meaning of Scalia's opinion in Heller, they just pick and choose what fits their end-goal, context and meaning be damned.

My observation is kind of the inverse of what Justice Stevens wrote about the "dangerous and unusual" verbiage -- his dissent in Heller objected to the "dangerous and unusual" verbiage used because he thought it was a step too far to keep legislatures from banning new guns or gun tech just because they became popular or common because that would lead to a result where a company would push hard to get people to adopt its tech widely before legislatures could act. I'd lay odds that he'd look at bump stocks as a prime example -- when there was talk about making them illegal, people started buying them up like crazy. My take is that this is the opposite situation, the legislature pushing for quickly outlawing something and get the court to refuse a PI so that later in the litigation they could take the position that the banned gun or tech was "unusual" by virtue of its very illegality.
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Old 05-19-2018, 4:21 PM
Uncivil Engineer Uncivil Engineer is offline
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If the PI goes away doesn't that end the case? All the magazines will need to be out of the state, destroyed or permanently shortened. Then suppose we go ahead and win the case and the limit is thrown out. What magazines exist to continue to hold the grandfather exemption? Ones that were out of state? You think they won't block the return of those? The ones that have their less than permanent change? that law rights itself.
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Originally Posted by disintelligentsia View Post
My take on why the state wants to eliminate the PI -- it wants to take advantage of Heller's statement that you can ban "dangerous and unusual" weapons.

Specifically, if the PI is lifted then the magazines become instantly "unusual" in CA because they're illegal (just as machine guns weren't "unusual" before the NFA (sold in Sears catalogs to the public) and FOPA's ban on new automatics in '86, but are considered "unusual" now).
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Old 05-19-2018, 4:39 PM
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cockedandglocked cockedandglocked is offline
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Originally Posted by Uncivil Engineer View Post
If the PI goes away doesn't that end the case? All the magazines will need to be out of the state, destroyed or permanently shortened. Then suppose we go ahead and win the case and the limit is thrown out. What magazines exist to continue to hold the grandfather exemption? Ones that were out of state? You think they won't block the return of those? The ones that have their less than permanent change? that law rights itself.
Doesn't matter, the PI isn't going to get tossed
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