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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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  #1001  
Old 09-01-2018, 12:22 PM
speedrrracer speedrrracer is offline
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Y'all are re-arranging deck chairs on the Titanic.

Look, there is no win here. CA is going to take your standard cap magazines unless SCOTUS finds they are protected under the 2A (and that's seriously unlikely, because the antis won't vote for anything that says gunz, and the originalists aren't going to get into the debate that "30 rounds is OK, but 10 rounds is not"). ETA: not familiar with the Duncan stuff, but a Commerce Clause + 2A argument is probably your only hope. I did read some of what Nelson (don't remember his last name) wrote for the state, and his Commerce Clause arguments had a huge hole in them. He said, twice, that no amount of interference in interstate commerce was too much interference because safety. He is demonstrably wrong, because Southern Pacific Co v Arizona. Whether or not that + 2A gets you cert + 5 votes from SCOTUS I dunno.

Quote:
Originally Posted by SCOTUS, Lucas v. South Carolina Coastal Council
when a regulation is designed to prevent "harmful or noxious uses" of property akin to public nuisances, no compensation is owing under the Takings Clause regardless of the regulation's effect on the property's value.
Quote:
Originally Posted by SCOTUS, Mugler v Kansas
The acknowledged police power of a State extends often to the destruction of property. A nuisance may be abated. Everything prejudicial to the health or morals of a city may be removed."
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  #1002  
Old 09-01-2018, 3:26 PM
Robotron2k84 Robotron2k84 is offline
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Except that the Second Amendment in its recognition of the right to Keep and Bear utilizes the whole of the able-bodied populace to wage a defensive campaign against an external aggressor or tyrannical government, as a backstop should the volunteer military fail.

If the originalists on the court are worth their salt at all, they should concede that 30-round, 50, 60 or 100-round magazines fulfill the obligation of a functional militia. It's bad enough that at this point in time select-fire weapons are mostly banned from common use as such. A further encroachment of capacity to wage an effective fight further renders 2A useless.
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  #1003  
Old 09-01-2018, 4:09 PM
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Quote:
Originally Posted by wolfwood View Post
If the magazine law is deemed a unlawful taking, does the legislature have to write a new law that includes compensation?

Or is the law still valid and the people affected are only entitled to compensation?
I could quibble with your phrasing of the questions but will instead answer the question I think you are asking. If it is a taking, the legislature would not have to write a new law with a built-in compensation mechanism IMO.

Quote:
How do you figure out who was impacted as a practical matter?
Assuming it's a taking, I don't see this being the state's problem (based on a cursory review of the authorities and not totally confident about it). Which is not to say that it wouldn't be a serious complication for the state.

Getting back to the point I was making: the notion that an en banc panel has an incentive to reverse because dispossession would make the takings claim go away or would weaken the takings claim is analytically ridiculous. To the extent that the PI is based on the takings claim it is already on extremely shaky ground.
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  #1004  
Old 09-01-2018, 5:45 PM
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If the state can make something illegal, then take possession of the illegal property (regardless of if it was legally obtained) , and not pay anything for it, then why is it that the state had a bill to confiscate all "assault weapons" at one time but the bill author retracted the bill because they did not have enough money to pay for the property.

It seems with these types of law I've seen the vast majority make the property illegal while also grandfathering the property obtained when it was legal.

It's only recently that I've seen this not happening. For example this law from California, and the bump stock changes. With the bump stock changes it's assumed that the property was never really legal, they considered it an illegal machine gun but the government didn't really realized it (oops!).

If it's true that they can take any property they choose, why would they grandfather anything ?
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  #1005  
Old 09-01-2018, 8:45 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Getting back to the point I was making: the notion that an en banc panel has an incentive to reverse because dispossession would make the takings claim go away or would weaken the takings claim is analytically ridiculous. To the extent that the PI is based on the takings claim it is already on extremely shaky ground.
Is it analytically ridiculous because there's no significant basis for the takings claim in the first place? It sounds that way.

If the takings claim has no legal legs, then of course it's going to make no difference to the 9th Circuit with respect to incentive to reverse.


What is the reason for believing that a takings claim is on very shaky ground? This belief isn't something I disagree with at all, but I'm interested in the legal underpinnings for it. Suggestions on what to search for (or, if you're feeling magnanimous, cases for me to read) in order to do my own homework on this would be helpful, presuming there's more needed than that which has already been cited.
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  #1006  
Old 09-01-2018, 11:08 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
I could quibble with your phrasing of the questions but will instead answer the question I think you are asking. If it is a taking, the legislature would not have to write a new law with a built-in compensation mechanism IMO.



Assuming it's a taking, I don't see this being the state's problem (based on a cursory review of the authorities and not totally confident about it). Which is not to say that it wouldn't be a serious complication for the state.

Getting back to the point I was making: the notion that an en banc panel has an incentive to reverse because dispossession would make the takings claim go away or would weaken the takings claim is analytically ridiculous. To the extent that the PI is based on the takings claim it is already on extremely shaky ground.
You answered my question. Thank you. FYI a extremely similar takings claim has been raised in Maryland as to its new ban on bumpstocks.

https://www.marylandshallissue.org/j...-lawsuit-filed
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  #1007  
Old 09-10-2018, 5:30 PM
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When is the trial supposed to take place? Rulings on motions to dismiss?
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  #1008  
Old 09-10-2018, 5:55 PM
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I think nuisance is easier on bump stocks than magazines. It's is easy to point out that law enforcement and others are able to professionally and privately own and use standard capacity magazines in ban states. It is considerably harder to point to needs and required use of bump stocks.

I'm not making a judgement on if they should be banned just pointing out without magazines the firearm is inoperable and there are legitimate needs for standard capacity magazines.
Quote:
Originally Posted by wolfwood View Post
You answered my question. Thank you. FYI a extremely similar takings claim has been raised in Maryland as to its new ban on bumpstocks.

https://www.marylandshallissue.org/j...-lawsuit-filed
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  #1009  
Old 09-12-2018, 6:35 PM
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https://www.scribd.com/document/3884...e-for-the-Sate

the state filed its en banc response
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  #1010  
Old 09-12-2018, 6:58 PM
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Quote:
Originally Posted by wolfwood View Post
https://www.scribd.com/document/3884...e-for-the-Sate

the state filed its en banc response
More like a petition for rehearing en banc. Now they need for at least one judge to request briefing from Duncan. Otherwise, it dies on the vine as it were.
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  #1011  
Old 09-12-2018, 7:00 PM
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It's actually the state requesting the court to NOT rehear the case en banc.

They cite an en banc rehearing as being a waste of everyone's time and resources.

First sensible thing I've seen DOJ do in a very long time.
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  #1012  
Old 09-12-2018, 7:07 PM
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Quote:
Originally Posted by aBrowningfan View Post
More like a petition for rehearing en banc. Now they need for at least one judge to request briefing from Duncan. Otherwise, it dies on the vine as it were.
No its a response to the Court's request to hear the parties position on the sua sponte en banc call. Duncan already filed hers I just did not pay to download it
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  #1013  
Old 09-12-2018, 8:51 PM
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Quote:
Originally Posted by cockedandglocked View Post
It's actually the state requesting the court to NOT rehear the case en banc.

They cite an en banc rehearing as being a waste of everyone's time and resources.

First sensible thing I've seen DOJ do in a very long time.
Broken clock...
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  #1014  
Old 09-12-2018, 9:48 PM
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Quote:
Originally Posted by cockedandglocked View Post
It's actually the state requesting the court to NOT rehear the case en banc.

They cite an en banc rehearing as being a waste of everyone's time and resources.

First sensible thing I've seen DOJ do in a very long time.
Quote:
Originally Posted by wolfwood View Post
No its a response to the Court's request to hear the parties position on the sua sponte en banc call. Duncan already filed hers I just did not pay to download it
All true. Safari for some reason was not loading the brief. The scribd.com framework was loading, but not the brief itself. So, I punted. After loading the site with Firefox, I could read the brief text.
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  #1015  
Old 09-12-2018, 10:14 PM
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So who wanted to en banc on the injunction.Why did this even come up (other than the 9th goes en banc on every pro gun win)?

T
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  #1016  
Old 09-12-2018, 10:22 PM
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Quote:
Originally Posted by timdps View Post
So who wanted to en banc on the injunction.Why did this even come up (other than the 9th goes en banc on every pro gun win)?
One of the judges called for briefs on their own (sua sponte). It came up because any judge on any circuit can request briefing.
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  #1017  
Old 09-13-2018, 1:29 PM
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Here is our brief opposing en banc review:

http://michellawyers.com/wp-content/...ng-En-Banc.pdf

Before paying to see any filings in this case you might want to check here first:

http://michellawyers.com/duncan-v-becerra/
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  #1018  
Old 11-01-2018, 11:06 AM
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Default Update: No en banc

Yesterday, the Ninth Circuit issued the following order, which means we are done in the Ninth for the time being and just waiting on a ruling from the district court on our already-briefed and argued summary judgment motion (upon which we will almost certainly be back up in the Ninth):

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,* District
Judge.

A judge requested a vote on whether to rehear this case en banc pursuant to
Federal Rule of Appellate Procedure 35(a). After reviewing the supplemental
briefing submitted by the parties, the request has been withdrawn. The mandate shall issue forthwith.
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  #1019  
Old 11-01-2018, 2:38 PM
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Quote:
Originally Posted by sbrady@Michel&Associates View Post
...waiting on a ruling from the district court on our already-briefed and argued summary judgment motion (upon which we will almost certainly be back up in the Ninth):
Do we infer from this statement that you expect the MSJ to be granted and immediately appealed by the state? Or that you would appeal any denial of MSJ rather than proceed immediately to a trial?
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  #1020  
Old 11-01-2018, 2:46 PM
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Quote:
Originally Posted by jwkincal View Post
Do we infer from this statement that you expect the MSJ to be granted and immediately appealed by the state? Or that you would appeal any denial of MSJ rather than proceed immediately to a trial?
My guess is that regardless of outcome of the MSJ that the losing side will immediately appeal to the 9th. The good news is that the enforcement remains enjoined until the outcome of the case is decided.
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  #1021  
Old 11-01-2018, 3:06 PM
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Quote:
Originally Posted by RoundEye View Post
My guess is that regardless of outcome of the MSJ that the losing side will immediately appeal to the 9th. The good news is that the enforcement remains enjoined until the outcome of the case is decided.
Seems like a safe bet.

Also seems likely that, unless Judge Benitez drops dead before then, that the MSJ will be in our favor.

The injunction order against the magazine ban was rather scathing, to say the least.
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  #1022  
Old 11-01-2018, 3:22 PM
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I am not making a prediction but the third possibility is both m s j s are denied and the case goes to trial
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  #1023  
Old 11-01-2018, 4:19 PM
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The State did not bring an MSJ in this case, only plaintiffs did.

Nothing to infer from my statement other than we will almost certainly be back up in the Ninth in this case at some point, whether that's after this ruling or a trial remains to be seen.
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  #1024  
Old 11-01-2018, 9:01 PM
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"A judge requested a vote on whether to rehear this case en banc pursuant to
Federal Rule of Appellate Procedure 35(a). After reviewing the supplemental
briefing submitted by the parties, the request has been withdrawn. The mandate shall issue forthwith."

My personal translation: after realizing the chances of this getting to SCOTUS just went up exponentially, the judge backed down so the case will be in play a while longer before a cert petition becomes necessary. Could be wrong, probably am, but that's my take.
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  #1025  
Old 11-02-2018, 2:03 PM
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Quote:
Originally Posted by jrr View Post
"A judge requested a vote on whether to rehear this case en banc pursuant to
Federal Rule of Appellate Procedure 35(a). After reviewing the supplemental
briefing submitted by the parties, the request has been withdrawn. The mandate shall issue forthwith."

My personal translation: after realizing the chances of this getting to SCOTUS just went up exponentially, the judge backed down so the case will be in play a while longer before a cert petition becomes necessary. Could be wrong, probably am, but that's my take.
Nah, not at this stage of the game. Issuance of a preliminary injunction rests in the sound discretion of the trial judge, whose discretion will not be disturbed absent prejudicial error. This is not an issue that would interest the SCOTUS in the slightest. More likely the one judge realized after further briefing that the appeal was correctly decided and that it was pretty much a frivolous appeal.
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  #1026  
Old 11-02-2018, 3:26 PM
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The 9th continues to be a wack job court, read about the Boise Ruling which is now being appealed. There was a dirty drunken bum passed out last weekend on the sidewalk and the City did nothing, so now the public may be exposed to HepA, Typhus and knows what else. A four year-old got stuck with a needle at a City Park several weeks before. Bum enforcement has ceased because of this court.

https://www.idahostatesman.com/news/...218624525.html

Don't expect anything rational from this court until a whole lot of judges are replaced.
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  #1027  
Old 11-10-2018, 3:03 PM
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quote from post #1 by Librarian;

Quote:
The lawsuit, titled Duncan v. Becerra, challenges California’s ban on possession of these standard capacity magazines because the law violates the Second Amendment, due process clause, and takings clause of the United States Constitution.
To paraphrase the Hildabeast during the Benghazi Hearings.

"WHAT DIFFERENCE DOES IT MAKE NOW!!!"


The Penal Code (refer to section 32390) (Section 18010) defines them as "Nuisances" (even though they're legal to possess).

PC-32390 combined with Section 18010. Also violates the Constitution, takings clause, due process clauses, and the "equal protections" clause of the 14th.

That has never stopped LE from seizing and destroying legally owned private property before. So what will actually change if Duncan prevails.

Will a win in Duncan also finally make these other previous abominations unenforceable?
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  #1028  
Old 11-10-2018, 4:05 PM
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Quote:
Originally Posted by pacrat View Post
quote from post #1 by Librarian;



To paraphrase the Hildabeast during the Benghazi Hearings.

"WHAT DIFFERENCE DOES IT MAKE NOW!!!"


The Penal Code (refer to section 32390) (Section 18010) defines them as "Nuisances" (even though they're legal to possess).

PC-32390 combined with Section 18010. Also violates the Constitution, takings clause, due process clauses, and the "equal protections" clause of the 14th.

That has never stopped LE from seizing and destroying legally owned private property before. So what will actually change if Duncan prevails.

Will a win in Duncan also finally make these other previous abominations unenforceable?
1st, it's rare for mags to get confiscated under the nuisance law. Possible, yes, but rare. It's never been a huge concern for most people. Also, you avoid criminal charges under that law, at most you just lose your magazines, but not your freedom.
2nd, yes, it might affect the nuisance law. We don't know yet how that will play out.
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  #1029  
Old 11-10-2018, 6:13 PM
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Have they set a trial date, yet?
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