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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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  #2121  
Old 04-02-2020, 7:57 PM
Bhart356 Bhart356 is offline
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Some have stated that the Duncan attorney should not have given ground on the 100 round magazine question. I understand that one theory is to never concede anything. However I thought her response was astute.

Earlier the State of California attorney had allowed himself to get baited into a discussion about whether California could reduce magazine size to two-round or even zero-round mags. He was forced to concede that such small mags were likely not Constitutional. He then had to defend the (ridiculous) argument that the State could arbitrarily decide that 10-round mags are all that are “needed” for self defense.

The Duncan attorney did not allow herself to get baited into a similar defense of 100-round mags. Instead she reverted to Heller and “common use”, stating there was probably a point at which common use no longer applies. Effectively she was echoing similar comments made by Judge Benitez in his District Court opinion. Benitez never says that 100 round mags ought to be legal or illegal. He just says that there is presumably some boundary where Heller’s “common use” no longer applies.

It would be satisfying to stand on principle try to argue for supersized mags. I for one will be far more satisfied if playing it smart wins this case. The Duncan attorney did not allow herself to be drawn into a straw man argument. Instead she made a wise tactical decision to redirect the discussion back to Heller’s “common use” doctrine.
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  #2122  
Old 04-02-2020, 8:01 PM
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Quote:
Originally Posted by Dvrjon View Post
The state argues that the "pause to reload" mitigates mass shootings and allows time to respond and escape.

I believe the District Court commented on the exact counter for self-defense...the defender may have to pause to reload, allowing time for the assailant to press the attack.
This is what irritated me. The counsel for the state actually argued that LCM's give mass shooters and criminals an advantage in not having to reload. Then when questioned about citizens living in rural areas with law enforcement a long ways away he said having a 10 round limit was not a disadvantage to the citizen because they can carry more magazines. Argh! I wanted to reach through the screen and shake some sense into the little pencil neck.
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  #2123  
Old 04-02-2020, 8:04 PM
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Originally Posted by Bhart356 View Post
Some have stated that the Duncan attorney should not have given ground on the 100 round magazine question. I understand that one theory is to never concede anything. However I thought her response was astute.

Earlier the State of California attorney had allowed himself to get baited into a discussion about whether California could reduce magazine size to two-round or even zero-round mags. He was forced to concede that such small mags were likely not Constitutional. He then had to defend the (ridiculous) argument that the State could arbitrarily decide that 10-round mags are all that are “needed” for self defense.

The Duncan attorney did not allow herself to get baited into a similar defense of 100-round mags. Instead she reverted to Heller and “common use”, stating there was probably a point at which common use no longer applies. Effectively she was echoing similar comments made by Judge Benitez in his District Court opinion. Benitez never says that 100 round mags ought to be legal or illegal. He just says that there is presumably some boundary where Heller’s “common use” no longer applies.

It would be satisfying to stand on principle try to argue for supersized mags. I for one will be far more satisfied if playing it smart wins this case. The Duncan attorney did not allow herself to be drawn into a straw man argument. Instead she made a wise tactical decision to redirect the discussion back to Heller’s “common use” doctrine.
Yes, she made a good call. If she said there should be no limit it would allow the whole thing to veer off into, "Well what about..." She knew her place was not to try and set an upper limit but to argue that the arbitrary 10 round maximum failed the common use test. She didn't give anything up, she gave exactly the answer that she should have.
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  #2124  
Old 04-02-2020, 8:35 PM
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Quote:
Originally Posted by dsp View Post
The DOJ roster is very specific about what handguns are legal. If say somebody wanted to buy a 20-30 round mag for a Glock or similar gun during the potential freedom period, would that put them in an unlawful position in regard to the DOJ roster?
Without a law against them, they are legal. The roster doesn't play a role. Read it, it lists guns.
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  #2125  
Old 04-02-2020, 8:52 PM
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Originally Posted by BryMan92 View Post
Can someone answer why CA keeps saying they should review de novo and why they don't seem to care about the D.C.'s opinion?

In my eyes, it looks like this is the process from CA:
1) Say the DC erred in weighing evidence and that Fyock established how/what evidence is appropriate. Remand or reverse on legal/procedural grounds?
2) Say the standard of review is intermediate and the D.C. didn't apply it correctly to the 2A. Remand or reverse?
3) Say a taking claim is only relevant if the 2A claims fail to protect these mags, then we can talk some more about police powers, compensation, etc. Remand for fact-finding?

Fyock, Fyock, Fyock?! Why not Heller, Heller, Heller?!
Because the SCOTUS only has power over the US, California is a different jurisdiction.
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  #2126  
Old 04-02-2020, 8:59 PM
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Right in the beginning when he starts off at 6:00mm he implies there are no guns in CA that require a high-capacity magazine, and then at 19:00m when he says there are "alternative channels" of 10 round magazines (almost making it sound as if any guns can take any other gun's magazines, proving he knows nothing about firearms) - both are lies.

He says California can acquire any number of magazines holding 10 or fewer rounds for their firearms...

There simply are just no 10-round magazines available for my set of Steyr GBs, Steyr SPPs, MAB P-15, HK VP-70s, Grendel P-30s, my Browning Hi-Powers chambered in .30 Luger, nor my Walther P88s.

No original magazines and no aftermarket magazines in 10 rounds. Nor should I be expected or even forced to mechanically alter those magazines or manipulate magazines from another model of firearm which may or may not work in my gun merely because it's 10 rounds (say, from a regular hi-power in 9mm where I would be expected to bend in the feed lips) having that chance or malfunction, which may have an adverse influence on their ability to operate safely.

Someone needs to point this out when he uses that argument.

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Originally Posted by Librarian View Post
What compelling interest has any level of government in knowing what guns are owned by civilians? (Those owned by government should be inventoried and tracked, for exactly the same reasons computers and desks and chairs are tracked: responsible care of public property.)

If some level of government had that information, what would they do with it? How would having that info benefit public safety? How would it benefit law enforcement?
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  #2127  
Old 04-02-2020, 9:18 PM
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Also would like to point out that many mass shootings only used 10-round magazines; Seung-Hui Cho at Virginia tech for example, Eliot Rodger in Isla Vista, CA who also happened to kill 3 people with a KNIFE that day - killed 3 people with a firearm.

He's talking about being forced to modify large-capacity magazines that were once legally owned under prior laws, grandfathered, etc., however doing so on some guns could seriously cause mechanical issues with certain magazines.

Little dude knows nothing about firearms, keeps spitting out factual errors.
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Originally Posted by Librarian View Post
What compelling interest has any level of government in knowing what guns are owned by civilians? (Those owned by government should be inventoried and tracked, for exactly the same reasons computers and desks and chairs are tracked: responsible care of public property.)

If some level of government had that information, what would they do with it? How would having that info benefit public safety? How would it benefit law enforcement?
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  #2128  
Old 04-02-2020, 9:27 PM
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Quote:
Originally Posted by The Gleam View Post
Also would like to point out that many mass shootings only used 10-round magazines; Seung-Hui Cho at Virginia tech for example, Eliot Rodger in Isla Vista, CA who also happened to kill 3 people with a KNIFE that day - killed 3 people with a firearm.

He's talking about being forced to modify large-capacity magazines that were once legally owned under prior laws, grandfathered, etc., however doing so on some guns could seriously cause mechanical issues with certain magazines.

Little dude knows nothing about firearms, keeps spitting out factual errors.
The Virginia Tech shooter used full size mags in the Glock 19.
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  #2129  
Old 04-02-2020, 9:31 PM
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Originally Posted by GiveMeMo2A View Post
Without a law against them, they are legal. The roster doesn't play a role. Read it, it lists guns.
An example of what I'm pointing out:

On the DoJ roster there is the Beretta Px4 storm. Here's the exact gun from the DoJ roster: PX4 Storm Type F JXF9F20

This specific model is a gun with 10 rounds.

The normal 17 round capacity Beretta ends with 'JXF9F21'. I'm just wondering if 17 round mags in a CA legal 'JXF9F20' could potentially put a legal owner in a bad spot. Given how insistent CA seems to be on coming after legal owners, I want to be cautious.
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  #2130  
Old 04-02-2020, 9:48 PM
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Quote:
Originally Posted by dsp View Post
An example of what I'm pointing out:

On the DoJ roster there is the Beretta Px4 storm. Here's the exact gun from the DoJ roster: PX4 Storm Type F JXF9F20

This specific model is a gun with 10 rounds.

The normal 17 round capacity Beretta ends with 'JXF9F21'. I'm just wondering if 17 round mags in a CA legal 'JXF9F20' could potentially put a legal owner in a bad spot. Given how insistent CA seems to be on coming after legal owners, I want to be cautious.
There is nothing that would provide for prosecution for putting a 17 round magazine in a Beretta which was sold for CA with 10 round mags, as long as the magazine is legally owned, etc. In other words whether the gun is on the roster by model number, etc makes no difference in what magazines are used in it, just as to how it is sold.
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  #2131  
Old 04-02-2020, 9:48 PM
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Quote:
Originally Posted by dsp View Post
An example of what I'm pointing out:

On the DoJ roster there is the Beretta Px4 storm. Here's the exact gun from the DoJ roster: PX4 Storm Type F JXF9F20

This specific model is a gun with 10 rounds.

The normal 17 round capacity Beretta ends with 'JXF9F21'. I'm just wondering if 17 round mags in a CA legal 'JXF9F20' could potentially put a legal owner in a bad spot. Given how insistent CA seems to be on coming after legal owners, I want to be cautious.
If I am going to read the law as it is written, till the roster is exempt you are correct that the roster specific model will probably be sold with a 10 round magazine. However replacing that magazine does not fundamentally change the firearm. The Magazine is an accessory just like a surefire light, crimson trace grip, or night sights.

the only potential problem I can see down the road is Sheriffs playing hardball with CCW's.
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  #2132  
Old 04-02-2020, 9:51 PM
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Quote:
Originally Posted by dsp View Post
An example of what I'm pointing out:

On the DoJ roster there is the Beretta Px4 storm. Here's the exact gun from the DoJ roster: PX4 Storm Type F JXF9F20

This specific model is a gun with 10 rounds.

The normal 17 round capacity Beretta ends with 'JXF9F21'. I'm just wondering if 17 round mags in a CA legal 'JXF9F20' could potentially put a legal owner in a bad spot. Given how insistent CA seems to be on coming after legal owners, I want to be cautious.
If you throw a pair of suppressor sights on your PX4, does your PX4 suddenly become “illegal”? Of course not.

The same line of thinking would apply to mags.

They are strictly accessories. Regulated accessories (for the time being), but accessories nonetheless.
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  #2133  
Old 04-02-2020, 9:56 PM
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Thanks for the replies, guys. I'm relatively new to navigating the tightrope of CA gun laws so I appreciate the info.
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  #2134  
Old 04-02-2020, 9:57 PM
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One argument defense attorney pointed out was the “pause” when reloading could potentially save lives in a mass shooting. Well let’s put the shoe on the other foot, what then, could that “pause” serve as an advantage in a self defense situation? Who would be benefiting in that instance? The victim or aggressor?
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  #2135  
Old 04-02-2020, 10:21 PM
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Quote:
Originally Posted by enegue View Post
The Virginia Tech shooter used full size mags in the Glock 19.
Correct; I typed that too quickly while listening to the video.

I should have elaborated, to point out that it would not have made a difference as the panel came to the same conclusion - because he had more 10 round magazines than 15 round magazines that he used, that were found empty at the scene, the majority of the rest of the empties were only 10-rounders; 2 loaded and unused 15-round magazines for the Glock 19 were found that he never used.

All of the rest of the magazines that he used were 10-round magazines he bought on Ebay or retail.

See link - the full report:

https://www.google.com/url?sa=t&rct=...rHjeoOLjU87D-0

Quote:
The unexpended ammunition included two loaded 9mm magazines with 15 cartridges each and many loose bullets.
Quote:
March 22 Cho purchases two 10-round magazines for the Walther P22 on eBay.
Quote:
March 23 Cho purchases three additional 10-round magazines from another eBay seller.
Quote:
March 31 Cho purchases additional ammunition magazines, ammunition, and a hunting knife from Wal-Mart and Dick’s Sporting Goods.
Regardless, the following was determined:

Quote:
The panel also considered whether the previous federal Assault Weapons Act of 1994 that banned 15-round magazines would have made a difference in the April 16 incidents. The law lapsed after 10 years, in October 2004, and had banned clips or magazines with over 10 rounds.

The panel concluded that 10-round magazines that were legal would have not made much difference in the incident. Even pistols with rapid loaders could have been about as deadly in this situation.
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Originally Posted by Librarian View Post
What compelling interest has any level of government in knowing what guns are owned by civilians? (Those owned by government should be inventoried and tracked, for exactly the same reasons computers and desks and chairs are tracked: responsible care of public property.)

If some level of government had that information, what would they do with it? How would having that info benefit public safety? How would it benefit law enforcement?

Last edited by The Gleam; 04-02-2020 at 11:09 PM..
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  #2136  
Old 04-02-2020, 11:30 PM
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Originally Posted by JCHavasu View Post
There is nothing that would provide for prosecution for putting a 17 round magazine in a Beretta which was sold for CA with 10 round mags, as long as the magazine is legally owned, etc. In other words whether the gun is on the roster by model number, etc makes no difference in what magazines are used in it, just as to how it is sold.
I might also add the roster is only a restriction on sale by an FFL, not posession.

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  #2137  
Old 04-02-2020, 11:38 PM
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Originally Posted by TacoJockey View Post
I might also add the roster is only a restriction on sale by an FFL, not posession.

Sent from my SM-N975U using Tapatalk
Good point!
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  #2138  
Old 04-03-2020, 12:03 AM
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So what's the current status of repealing the 10 round limit? I did not see the results today.
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  #2139  
Old 04-03-2020, 12:05 AM
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So what's the current status of repealing the 10 round limit? I did not see the results today.
Same as yesterday.
Gotta wait for the court to issue it's findings.
Maybe this fall.
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  #2140  
Old 04-03-2020, 12:16 AM
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Same as yesterday.
Gotta wait for the court to issue it's findings.
Maybe this fall.
Randall,

The Ninth Circuit has been pretty consistent in publishing the decisions of their three judge panels. Most come down somewhere between three and five weeks after argument. But there are no fixed limits and very few cases have been handed down much longer after argument.

We gotta wait, but fortunately, the history here suggests that it won't be until the fall.
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  #2141  
Old 04-03-2020, 12:48 AM
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Randall,

The Ninth Circuit has been pretty consistent in publishing the decisions of their three judge panels. Most come down somewhere between three and five weeks after argument. But there are no fixed limits and very few cases have been handed down much longer after argument.

We gotta wait, but fortunately, the history here suggests that it won't be until the fall.
I've be extremely surprised if we get a opinion in 5 weeks. These big public policy cases often take 6 months to decide. Although you are right the average time from argument to decision is 1.2. months in the Ninth Circuit for a civil appeal according to the federal reports.


https://www.uscourts.gov/sites/defau..._0930.2017.pdf
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  #2142  
Old 04-03-2020, 5:30 AM
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Like hell there is. You haven't read a single thing I've said. If this goes to the Supreme Court the odds of mag bans being struck down on a national level is incredibly high. What do you not understand about that? These anti-gun states do not make these appeals in a vacuum. They absolutely do coordinate their anti-gun hysteria.
A loss anywhere in the 9th goes to SCOTUS. En Banc or not, I'm not sure why you think En Banc is special.
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Old 04-03-2020, 5:42 AM
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Originally Posted by wolfwood View Post
I've be extremely surprised if we get a opinion in 5 weeks. These big public policy cases often take 6 months to decide. Although you are right the average time from argument to decision is 1.2. months in the Ninth Circuit for a civil appeal according to the federal reports.


https://www.uscourts.gov/sites/defau..._0930.2017.pdf
Especially since it involves gun rights, it's probably going to take a very extended time compared to 5-6 weeks. Unless Lynn is in complete agreement with Callahan and Lee and we have a unanimous decision.
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Old 04-03-2020, 5:49 AM
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A loss anywhere in the 9th goes to SCOTUS. En Banc or not, I'm not sure why you think En Banc is special.
I don't think you have the attention span for this. I already stated that was the case for the plaintiffs here

https://www.calguns.net/calgunforum/...postcount=2112

When the state loses this 3 judge panel, they have the option to appeal straight to USSC. Unlikely, since it is less friendly right now and NYSRPA is right around the corner. Important note for you since you don't seem to understand this, CA is not required to appeal to the supreme court. Requesting certiorari is not an automatic function of the appeals process. What they will do is consider whether or not to ask for en banc from an expanded 9th circuit panel. If at any point the plaintiffs lose they can appeal to the supreme court and introduce massive risk for CA and other anti-gun states. That is really as simple as I can make this for you.
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Old 04-03-2020, 6:23 AM
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I don't think you have the attention span for this. I already stated that was the case for the plaintiffs here
Pejoratives , lovely..

Quote:
Originally Posted by kuug View Post
https://www.calguns.net/calgunforum/...postcount=2112

When the state loses this 3 judge panel, they have the option to appeal straight to USSC.
I agree. they can do that, or request En Banc.

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Originally Posted by kuug View Post
Unlikely, since it is less friendly right now and NYSRPA is right around the corner.
True, it's not friendly. En Banc is more friendly.

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Originally Posted by kuug View Post
Important note for you since you don't seem to understand this, CA is not required to appeal to the supreme court.
I never said they were required.

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Originally Posted by kuug View Post
Requesting certiorari is not an automatic function of the appeals process.
I never said it was, and I've never had that thought in my head my entire life.

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Originally Posted by kuug View Post
What they will do is consider whether or not to ask for en banc from an expanded 9th circuit panel.
Uhhu .. Stating the obvious.

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Originally Posted by kuug View Post
If at any point the plaintiffs lose they can appeal to the supreme court and introduce massive risk for CA and other anti-gun states.
Risk which currently exists in the 3 judge panel, and doesn't change En Banc. I think this is your sticking point.

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That is really as simple as I can make this for you.
Gee thanks.
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  #2146  
Old 04-03-2020, 6:38 AM
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Originally Posted by abinsinia View Post
Risk which currently exists in the 3 judge panel, and doesn't change En Banc. I think this is your sticking point.
The fact you can't seem to differentiate the risk for CA vs risk for every other anti-gun jurisdiction is what is laughable here. You say it doesn't change en banc, but that is false. Because going en banc after what appears incredibly likely to be a loss means the plaintiffs will have the opportunity to appeal to the supreme court. If the plaintiffs win at the 3 judge panel and CA doesn't ask for en banc then that is the end of it and there is no Duncan v. Becerra at the Supreme Court.
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Old 04-03-2020, 6:45 AM
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Quote:
Originally Posted by kuug View Post
The fact you can't seem to differentiate the risk for CA vs risk for every other anti-gun jurisdiction is what is laughable here. You say it doesn't change en banc, but that is false. Because going en banc after what appears incredibly likely to be a loss means the plaintiffs will have the opportunity to appeal to the supreme court. If the plaintiffs win at the 3 judge panel and CA doesn't ask for en banc then that is the end of it and there is no Duncan v. Becerra at the Supreme Court.
Your lack of knowledge about the 9th circuit is showing. En Banc outcomes today are not a sure thing to predict any longer.
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Old 04-03-2020, 6:56 AM
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Your lack of knowledge about the 9th circuit is showing. En Banc outcomes today are not a sure thing to predict any longer.
A fact I have already made very clear in my previous posts. En banc does not mean we get to the supreme court, it introduces the risk at the national level that magazine bans are struck down forever. What people replying to me don't seem to realize is that CA absolutely may not be willing to take that risk and just eat the loss at the 3 judge panel. We may get this 3 judge panel decision and that is the end of it. That is as likely an outcome as CA going en banc at this point.
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  #2149  
Old 04-03-2020, 6:56 AM
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don’t forget the very real possibility of a sua sponte request for en banc review by a judge, the very different composition of the current 9th circuit, and the effect an intervening decision from the U.S. Supreme Court in the NY case will have.

A lot of moving pieces and pretty hard to determine strategies at the current moment in time.
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Old 04-03-2020, 6:59 AM
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The fact you can't seem to differentiate the risk for CA vs risk for every other anti-gun jurisdiction is what is laughable here. You say it doesn't change en banc, but that is false. Because going en banc after what appears incredibly likely to be a loss means the plaintiffs will have the opportunity to appeal to the supreme court. If the plaintiffs win at the 3 judge panel and CA doesn't ask for en banc then that is the end of it and there is no Duncan v. Becerra at the Supreme Court.
You've state already, and you seem to know that En Banc is not required to go to SCOTUS. The scheme of going En Banc to over turn 3 judge panel decision has happened many times in California, Peruta, Teixera, and Young to name a few. What I'm suggesting is not new.

I think your wishful thinking. California will go all the way. California exerts heavy national pressure on other jurisdiction, but those other jurisdiction don't pressure California.
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Old 04-03-2020, 7:03 AM
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A fact I have already made very clear in my previous posts. En banc does not mean we get to the supreme court, it introduces the risk at the national level that magazine bans are struck down forever. What people replying to me don't seem to realize is that CA absolutely may not be willing to take that risk and just eat the loss at the 3 judge panel. We may get this 3 judge panel decision and that is the end of it. That is as likely an outcome as CA going en banc at this point.
Your opinions are all over the chart here. You have a whole lot of things mixed up and confused.
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Old 04-03-2020, 7:05 AM
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My point of logic has always been "Why does a trained police officer or LEO need a 17-round magazine to deal with a bad guy yet I'm supposed to deal with the same bad guy with on 10-rounds?"

Officer has, most likely, body armor, backup.. maybe a partner.. Why is it assumed that "Joe Citizen" can protect himself with 10 rounds when trained and better equipped officers are given 17+?

There's really no persuasive argument you can make
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Old 04-03-2020, 7:49 AM
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Quote:
Originally Posted by kuug View Post
A fact I have already made very clear in my previous posts. En banc does not mean we get to the supreme court, it introduces the risk at the national level that magazine bans are struck down forever. What people replying to me don't seem to realize is that CA absolutely may not be willing to take that risk and just eat the loss at the 3 judge panel. We may get this 3 judge panel decision and that is the end of it. That is as likely an outcome as CA going en banc at this point.
It will be interesting to see which way California goes in the case of a loss; will they "suck it up", so to speak, as did Washington D.C. with the CCW issue in order to prevent SCOTUS from hearing that case, or will California pound its chest like King Kong and go all-out?......
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Old 04-03-2020, 7:56 AM
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man I wish there was a live chat during the live streams.
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Old 04-03-2020, 8:07 AM
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Quote:
Originally Posted by Steve1968LS2 View Post
My point of logic has always been "Why does a trained police officer or LEO need a 17-round magazine to deal with a bad guy yet I'm supposed to deal with the same bad guy with on 10-rounds?"

Officer has, most likely, body armor, backup.. maybe a partner.. Why is it assumed that "Joe Citizen" can protect himself with 10 rounds when trained and better equipped officers are given 17+?

There's really no persuasive argument you can make
https://www.policeone.com/officer-sh...BbLYpnqqHxwMq/

The way I put it is you don't plan for the average or minimum, you plan for the worst case and hope for the best.

Your car has a 12-24 gallon gas tank / 300-500 mile range even if the average daily commute is < 20 miles.
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Old 04-03-2020, 8:16 AM
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The judges may or may not have already made up their minds regarding the decision.

However I would think it would be EXTREMELY unlikely for that decision to be written until after NYSRPA.

If there is clear, easy language in NYSRPA to support their decision, they will quote it. If there is wiggle room in NYSRPA they may try to exploit it if that suits their decision.

It would not surprise much of anyone if they appealed the decision en banc - that's happened with almost every favorable 2A 3-judge decision in the 9th Circuit going back what, 10 years or so?

The exception would be if NYSRPA is SO clear and SO strong that even the 9th Circuit can read it and know that they'll look like complete morons or worse, openly in judicial rebellion to go against it.
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