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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, 11:22 AM
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, 2:26 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, 3:09 PM
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FABIO GETS GOOSED!!! FABIO GETS GOOSED!!! is offline
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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, 4:45 PM
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abinsinia abinsinia is offline
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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, 7:45 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, 10:08 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, 4:30 PM
bigstick61 bigstick61 is offline
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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, 4:55 PM
Uncivil Engineer Uncivil Engineer is offline
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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, 5:35 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, 5:58 PM
aBrowningfan aBrowningfan is offline
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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, 6:00 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, 6:07 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, 7:51 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, 8:48 PM
aBrowningfan aBrowningfan is offline
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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, 9:14 PM
timdps timdps is offline
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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, 9:22 PM
aBrowningfan aBrowningfan is offline
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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, 12:29 PM
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sbrady@Michel&Associates sbrady@Michel&Associates is offline
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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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