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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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  #3361  
Old 02-25-2021, 2:37 PM
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Filed order (SIDNEY R. THOMAS) Virtual en banc oral argument will take place during the week of March 22, 2021. The date and time will be determined by separate order.
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  #3362  
Old 02-25-2021, 2:45 PM
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Quote:
Originally Posted by CandG View Post
A while back, I spent some time with a napkin and pencil to calculate the odds of a favorable en banc panel with the current CA9 composition, but I can't seem find it now. I think it was somewhere around 42% odds.
I just asked my Resident Expert (she prefers real paper to napkins), and she and her calculator app say ~24.9% (Sum of probabilities of getting exactly 6R, 7R, ... 10R).
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  #3363  
Old 02-25-2021, 2:50 PM
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Originally Posted by John Browning View Post
To be honest, this is the case I want the USSC to hear. The original decision is as brilliant as you will find on the topic, it was found sound by the 9th Circuit, and now we have this obvious political fackery. If the Supreme Court would ever strike down the concept of magazine capacity bans as Unconstitutional, now is the time and this is the case.
I’m thinking that old Sydney Thomas is banking on the odds that Biden will have packed the SCOTUS by then, and start to dismantle the 2A, finally getting rid of it all together.
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  #3364  
Old 02-25-2021, 3:21 PM
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Quote:
Originally Posted by Librarian View Post
I just asked my Resident Expert (she prefers real paper to napkins), and she and her calculator app say ~24.9% (Sum of probabilities of getting exactly 6R, 7R, ... 10R).
Now that I think about it, my calculation was for a favorable 3-judge panel. If I used paper instead of a napkin, then I might still have it and wouldn't have had to rely on my terrible memory

I still like my answer better. I'm not a big fan of 24.9%
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  #3365  
Old 02-25-2021, 3:25 PM
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Couple of questions:
1.) If we win, the state will appeal to the SC?
2.) If we lose, we will appeal to SC?
3.) If the SC decides not to hear the case, does the En Banc ruling stand?
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  #3366  
Old 02-25-2021, 3:32 PM
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Sydney Thomas? Shocked not shocked.

He represents everything wrong with our court system.

We all knew he would do this, with or without anyone else's support.

Look for a loss on enbanc and another cert denial.
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  #3367  
Old 02-25-2021, 3:35 PM
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Originally Posted by Librarian View Post
I just asked my Resident Expert (she prefers real paper to napkins), and she and her calculator app say ~24.9% (Sum of probabilities of getting exactly 6R, 7R, ... 10R).
What about getting that many pro-gun judges? My understanding is that the number of pro-RKBA judges is smaller than the number of Republican appointees such that depending on who exactly gets picked, a Republican majority may still result in an anti-RKBA-majority panel.
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  #3368  
Old 02-25-2021, 4:04 PM
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Quote:
Originally Posted by Go Packers! View Post
Couple of questions:
1.) If we win, the state will appeal to the SC?
2.) If we lose, we will appeal to SC?
3.) If the SC decides not to hear the case, does the En Banc ruling stand?
1. Probably not, but stranger things have happened.
2. Definitely
3. Yes
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Extremely important note: DON'T register anything acquired after 2016!!!
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  #3369  
Old 02-25-2021, 4:10 PM
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We have a non-existent chance to win en-banc. Cert by SCOTUS is more likely, since there is a big split between CAs on the issue. Or, as usual, SCOTUS may delegate it back to the locals to regulate
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  #3370  
Old 02-25-2021, 4:14 PM
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My breakdown:
20% chance of win at en banc, 30% chance of cert on loss, 50/50 at scotus on cert

so 20% chance we win now, if we lose, that's 15% chance of win at scotus.

disclaimer: I am not a lawyer nor a bookie.
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  #3371  
Old 02-25-2021, 4:18 PM
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At this point, our side should just go into the en banc hearing, make a statement that the entire hearing is a fraud and miscarriage of justice. Tell them we’ll see them in the Supreme Court and walk out.
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  #3372  
Old 02-25-2021, 4:20 PM
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Originally Posted by Bolt_Action View Post
At this point, our side should just go into the en banc hearing, make a statement that the entire hearing is a fraud and miscarriage of justice.
That gives us a 0% chance of winning now, which is worse than 20% chance of winning now, which is, in turn, better than the 15% chance of winning at scotus.

No, we have to play the game.
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  #3373  
Old 02-25-2021, 4:22 PM
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Originally Posted by curtisfong View Post
That gives us a 0% chance of winning now, which is worse than 20% chance of winning now, which is, in turn, better than the 15% chance of winning at scotus.

No, we have to play the game.
SCOTUS or bust. No interest in compromise.
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  #3374  
Old 02-25-2021, 4:32 PM
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Originally Posted by curtisfong View Post
That gives us a 0% chance of winning now, which is worse than 20% chance of winning now, which is, in turn, better than the 15% chance of winning at scotus.

No, we have to play the game.
Seems like we'll have a pretty good idea as to whether we're going to win or lose upon announcement of who's going to be on the panel.
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  #3375  
Old 02-25-2021, 4:41 PM
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Duncan has essentially served it's purpose. The 3 judge panel opinion is now officially confirmed worthless as it was never put into an order. Duncan will likely not be heard by SCOTUS because ANJRPC v Grewal is essentially the same case and is much further along in the process. ANJRPC will either be granted cert or denied cert by the time Duncan has even had oral arguments. If ANJRPC is granted cert, Duncan will be GVR'd eventually. If ANJRPC is denied cert, Duncan will also be denied cert. GG everyone, the 9th circuit wins again.
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  #3376  
Old 02-25-2021, 5:27 PM
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Our chances at SCOTUS are way higher than 15% - are you saying that the gun grabbers have 85% of winning? I'm pretty sure they are sweating and not sleeping now. This is how McDonald went.

And we have RBG-ACB exchange. Even without Roberts we have 5 votes. This is likely to be a 6-3 easy smackdown unless something happens to any of the justices. That's the about the only unknown at this time - are they going to live long enough and is Biden going to get another term.
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  #3377  
Old 02-25-2021, 5:39 PM
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Originally Posted by IVC View Post
Our chances at SCOTUS are way higher than 15%
My 15% is 30% cert * 50% win
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  #3378  
Old 02-25-2021, 5:55 PM
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Originally Posted by curtisfong View Post
My 15% is 30% cert * 50% win
Sure, but it's also prediction of 85% chance of win for the gun grabbers. Would you rather be in their shoes now and expect to win by a factor of close to 6-1? I wish you WERE a bookie...
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  #3379  
Old 02-25-2021, 5:55 PM
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So what happens to our stashes of SCM’s? Possession becomes a felony as soon as the 9th decides?
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  #3380  
Old 02-25-2021, 5:55 PM
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Originally Posted by kuug View Post
Duncan has essentially served it's purpose. The 3 judge panel opinion is now officially confirmed worthless as it was never put into an order. Duncan will likely not be heard by SCOTUS because ANJRPC v Grewal is essentially the same case and is much further along in the process. ANJRPC will either be granted cert or denied cert by the time Duncan has even had oral arguments. If ANJRPC is granted cert, Duncan will be GVR'd eventually. If ANJRPC is denied cert, Duncan will also be denied cert. GG everyone, the 9th circuit wins again.
I didn’t know about this case (ANJRPC v Grewal). Thanks for the heads up, it appears you’re right. This case has already been appealed to SCOTUS, and we should be hearing whether or not it’s granted certiorari, in what, a couple months?
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  #3381  
Old 02-25-2021, 6:28 PM
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So what happens to our stashes of SCM’s? Possession becomes a felony as soon as the 9th decides?
Possession, PC 32310(c), is not a felony.

It is, by the way, possible for the en banc panel to rule that (c) and (d) are unconstitutional for non-second-amendment reasons and (a) and (b) are fine because “something something, legitimate government interest in public safety.” Basically making the current status quo permanent if they felt that gave the best chance for cert denial. It would also allow the legislature to try again with a mandatory state buy-out of magazines along with a ban.
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  #3382  
Old 02-25-2021, 7:02 PM
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Originally Posted by bigstick61 View Post
What about getting that many pro-gun judges? My understanding is that the number of pro-RKBA judges is smaller than the number of Republican appointees such that depending on who exactly gets picked, a Republican majority may still result in an anti-RKBA-majority panel.
No idea of the number of R-appointed judges who are not proRKBA.

There might even be one or two D-appointed judges who are proRKBA.
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  #3383  
Old 02-25-2021, 7:09 PM
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(IANAL) But it would seem the 9th's predictability in second-guessing triers and retriers of fact would merit not going en banc in the first place and correction by SCOTUS in the second.
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  #3384  
Old 02-25-2021, 7:11 PM
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Originally Posted by IVC View Post
Our chances at SCOTUS are way higher than 15% - are you saying that the gun grabbers have 85% of winning? I'm pretty sure they are sweating and not sleeping now. This is how McDonald went.

And we have RBG-ACB exchange. Even without Roberts we have 5 votes. This is likely to be a 6-3 easy smackdown unless something happens to any of the justices. That's the about the only unknown at this time - are they going to live long enough and is Biden going to get another term.
No, we don't.
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  #3385  
Old 02-25-2021, 8:04 PM
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Originally Posted by Librarian View Post
No idea of the number of R-appointed judges who are not proRKBA.

There might even be one or two D-appointed judges who are proRKBA.
Trump's appointee from Hawaii has an anti-gun record, as I recall. Not sure if there are any others out there. Wouldn't surprise me.

Are there any Democrat appointees with a known pro-RKBA record?
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  #3386  
Old 02-25-2021, 9:10 PM
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Originally Posted by IVC View Post
Sure, but it's also prediction of 85% chance of win for the gun grabbers. Would you rather be in their shoes now and expect to win by a factor of close to 6-1? I wish you WERE a bookie...
I'm sure the antis feel fine or they never would have asked or en banc. Win or lose here, its going to SCOTUS. They must be pretty confident that SCOTUS won't hear it and I don't blame them. The conservative majority on the court hasn't had any impact on the 2A yet and I doubt it will be what most people are expecting.
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  #3387  
Old 02-25-2021, 9:29 PM
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Once it's heard by the judges, at 2:00 am there will be a final vote of 287,153 to 3.
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  #3388  
Old 02-25-2021, 9:45 PM
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So the mags we bought during the freedom week are gonna be illegal?
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  #3389  
Old 02-25-2021, 10:07 PM
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Originally Posted by faris1984 View Post
So the mags we bought during the freedom week are gonna be illegal?
Quote:
Originally Posted by JoyfulJoker View Post
So what happens to our stashes of SCM’s? Possession becomes a felony as soon as the 9th decides?
Magic 8-Ball says, "Ask again later".

We don't know, and can't know. We have to wait for the ruling, which unfortunately means there is a chance (small or large, I don't know) that everyone could become instant felons without any advance warning. That seems like an unlikely choice for them to make, but I've been wrong lots of times before.
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AW Reg. will likely be reopened summer '21 to those who weren't able to register by 7/18. We don't know what that means for firearms made compliant when reg. failed or if they can or must be converted to AW configuration before registering. There's a moratorium on prosecutions for possession of AWs which were eligible for registration, but AWs acquired after 2016 can still be prosecuted!
Extremely important note: DON'T register anything acquired after 2016!!!

Last edited by CandG; 02-25-2021 at 10:09 PM..
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  #3390  
Old 02-25-2021, 10:17 PM
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Originally Posted by Bhobbs View Post
I'm sure the antis feel fine or they never would have asked or en banc. Win or lose here, its going to SCOTUS. They must be pretty confident that SCOTUS won't hear it and I don't blame them. The conservative majority on the court hasn't had any impact on the 2A yet and I doubt it will be what most people are expecting.
That's what mayor of Chicago thought too when he pushed over the edge and got us McDonald.

Never forget that we wouldn't be where we are with 2A if it weren't for these hard-core antis who deeply believe they are right.
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Old 02-26-2021, 6:49 AM
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Originally Posted by JoyfulJoker View Post
So what happens to our stashes of SCM’s? Possession becomes a felony as soon as the 9th decides?
Quote:
Originally Posted by faris1984 View Post
So the mags we bought during the freedom week are gonna be illegal?
Above, Champu pointed out that 32310(c) sets the penalties for possession at infractions or misdemeanors, with fines and potential jail time. Additionally, section 32310(d) describes mandatory disposition of owned LCMs.

LCMs are currently illegal, as the language is still in the Penal Code. We are living under the District Court’s (Benitez) injunction (Page 6) against enforcement of that section.
Quote:
THEREFORE, IT IS HEREBY ORDERED that the Judgment is stayed in part
10 pending final resolution of the appeal from the Judgment. The permanent
11 injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) is
12 hereby stayed, effective 5:00 p.m., Friday, April 5, 2019.

13 IT IS HEREBY FURTHER ORDERED that the preliminary injunction issued
14 on June 29, 2017, enjoining enforcement of California Penal Code § 32310 (c) and
15 (d) shall remain in effect.
If enbanc loses, one could expect an appeal to SCOTUS, along with a continued injunction to maintain status quo until SCOTUS either denies cert or takes the case.
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  #3392  
Old 02-26-2021, 7:59 AM
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That's what mayor of Chicago thought too when he pushed over the edge and got us McDonald.
So?
What has McDonald actually done, that is measurable to the every-day lives of the California gun owner?.....Not ****. We are still subjected to an ever increasing amount of tyrannical gun laws, with no end in sight, while the players just keep extending the game. Now with the proven track of “mooting”, and a gutless SCOTUS that continually ducks 2A cases, does anyone honestly think things are going to get better?
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Old 02-26-2021, 7:59 AM
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The first priority of democrats is doing away with the 2nd Amendment. The first priority of Republicans is not supporting the 2nd Amendment. The democrats know this and that is why things are the way they are. Until republicans make supporting the 2nd A as important to them as the democrats make it to themselves, its just all a long slow slide and over time gets faster.

Trying to predict which judge(s) will vote pro-2nd Amendment is rather worthless, once a judge is appointed they have the job for life so they often change their views longer term and often vote contrary to expectations. Judges are not affected by their decisions, neither are courts. Judges all have guns, they do not care if you do and most prefer you don't.

Sit back and watch because speculation and hope doesn't matter, it only serves to create anxiety, frustration and fear. That doesn't mean not to have interest, be active or apply effort but all the what if this and that opinions don't matter, rulings, decisions and judgements matter. Anything that simply extends the process means nothing. Percentage of chance means nothing either, if there is a certain percent chance of something that doesn't happen who cares? Percentages are a figment of the imagination.

Last edited by SharedShots; 02-26-2021 at 8:14 AM..
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  #3394  
Old 02-26-2021, 8:48 AM
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Quote:
Originally Posted by IVC View Post
That's what mayor of Chicago thought too when he pushed over the edge and got us McDonald.

Never forget that we wouldn't be where we are with 2A if it weren't for these hard-core antis who deeply believe they are right.
Sure, they might lose one or two cases. The courts will never embrace the 2A like they should. Heller and McDonald have had almost no significant impact on the trajectory of 2A lawsuits.
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Old 02-26-2021, 9:15 AM
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Originally Posted by kuug View Post
Duncan has essentially served it's purpose. The 3 judge panel opinion is now officially confirmed worthless as it was never put into an order. Duncan will likely not be heard by SCOTUS because ANJRPC v Grewal is essentially the same case and is much further along in the process. ANJRPC will either be granted cert or denied cert by the time Duncan has even had oral arguments. If ANJRPC is granted cert, Duncan will be GVR'd eventually. If ANJRPC is denied cert, Duncan will also be denied cert. GG everyone, the 9th circuit wins again.
Did ANJRPC file a cert petition yet? The last I heard on the case that en banc was denied Nov 25.

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Old 02-26-2021, 9:48 AM
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Default CRPA Alert re Duncan En Banc

ICYMI

https://crpa.org/news/alert/breaking...51LOPpubHhsdL8

BREAKING NEWS: 9th Circuit to Rehear Duncan Case

The rights of California gun owners are once again under attack in the Ninth Circuit. Just today the Court issued an order that the CRPA-supported lawsuit Duncan v. Becerra be reheard by a larger 11-judge “en banc” panel. This is exactly what we have been fighting against and if this case were in any other jurisdiction, an “en banc” review would be a rare occurrence.

As reported previously, a three-judge panel of the Ninth Circuit recently held that California’s ban on standard capacity magazines is unconstitutional. That decision struck down California’s statewide prohibitions on such magazines and, in doing so, upheld a 2019 decision from the United States District Court in San Diego that resulted in hundreds of thousands—if not millions—of standard capacity magazines being lawfully purchased by California gun owners through what we have all come to know as Freedom Week.

Now that the Ninth Circuit has ordered Duncan to be reheard, the three-judge panel decision has been vacated. In other words, it is as if that decision never existed. Thankfully, however, the lower court’s order from Judge Benitez prohibiting enforcement of the State’s attempted ban on possession of such magazines remains in effect.

This means lawful owners of standard capacity magazines may continue to possess and use such magazines while the case continues to be litigated.

CRPA’s efforts in Duncan and the many other lawsuits fighting for the rights of California gun owners would not be possible without the support of our members and the public.

Please help CRPA continue the fight against California’s unconstitutional laws by donating to the CRPA Foundation.

And make sure you are subscribed to CRPA email alerts and visit the CRPA website for the latest developments in Duncan.

Read the 9th Circuit Order

You can help support litigation just like this that makes a real difference to the average gun owner.
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  #3397  
Old 02-26-2021, 10:14 AM
GI Combat GI Combat is offline
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Does this mean that the panel will retry the case de novo?
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  #3398  
Old 02-26-2021, 12:09 PM
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Quote:
Originally Posted by GI Combat View Post
Does this mean that the panel will retry the case de novo?
Essentially. The 3 judge panel decision was vacated and it's as if it never happened.

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  #3399  
Old 02-26-2021, 12:15 PM
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What are the chances that we win/lose the case?
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  #3400  
Old 02-26-2021, 12:19 PM
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hoystory hoystory is offline
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Quote:
Originally Posted by champu View Post
Possession, PC 32310(c), is not a felony.

It is, by the way, possible for the en banc panel to rule that (c) and (d) are unconstitutional for non-second-amendment reasons and (a) and (b) are fine because “something something, legitimate government interest in public safety.” Basically making the current status quo permanent if they felt that gave the best chance for cert denial. It would also allow the legislature to try again with a mandatory state buy-out of magazines along with a ban.
I think this is mostly right. Neither the district nor 3-judge panel ever even got to the point of whether the requirement to dispossess yourself of the magazines in question was an illegal 4th Amendment taking because they found the whole thing violated the 2nd.

My guess would be that the bad result for us at the en banc level would be a finding that the longstanding ban on sales, importation, etc. is legal and remanding it back down to the district court to re-do the analysis on whether the ban on possession violates the 4th.
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