Duncan V Becerra - 3-29-19 large cap mags Judge rules 10-round limit unconstitutional

[Dvrjon]

Originally Posted by OleCuss

Actually, they can make the argument that since you cannot sell the magazine to someone else under the statute, the magazine has no monetary value. However stupid that may be, a motivated judge may buy into that argument.

The key is not whether anyone believes, the key is whether they can get a judge to rule their way.

Originally Posted by OleCuss

I'm not arguing that it makes sense, just that you may be able to get the judge to buy the argument.

That line of reasoning appears to have been quashed by precedent.

Judge Benitez addressed this type of reasoning in his ruling (Page 19, Line 17) when discussing the state’s claim that LCMs are uncommon.

To the extent they [LCMs] may be now uncommon within California, it would only be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. To say the magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning. See Friedman v. City of Highland Park, Illinois, 784 F3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so the it (sic) isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”)

[BryMan92]

GOA filed an amici:

https://www.ammoland.com/2019/10/goa...#axzz64LG8wxBP

[MajorCaliber]

This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

[taperxz]

Originally Posted by MajorCaliber

This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

Um, it’s an individual right. “The right of the People to keep and bear arms shall not be infringed”

The 2A gives two reasons for a reason.

[ojisan]

Originally Posted by MajorCaliber

This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

The Founding Fathers said that when those in the future were trying to understand the meanings of what they had written, that their writings should be viewed in the context of when they were written.
In those times, the average able bodied citizen owned his own guns and he was the militia.
When called, he was expected to show up with his own rifle that was suitable for service and for a while it was required that the rifle be a standard military caliber (and no wooden ram rods either!) to insure the supply of ammunition in the field.

The FFs knew of advancements in guns and ammunition.
George Washington and others were well aware of the repeating Puckle Gun and similar inventions.
They were smart when they used the word "arms" in the 2A because that covered swords (the pre-eminent weapon of the previous 10,00 years or so), firearms, cannons and what might come in the future.

[MajorCaliber]

Guys, I was not trying to argue that it is not an individual right nor that military arms were not covered. I was trying to point out the absurdity of those who advocate both of those ideas at the same time because they are mutually exclusive.

[Uncivil Engineer]

This no personal right nonsense needs to end. Please point to one other "collective right" in the Bill of Rights? Further the Constitution compels the Congress to setup a postal system yet that didn't need to be included in the Bill of Rights. Why would the framers need to insure a right for a militia but not one to stand up an army? The notion of a collective right is laughable.

Sent from my Pixel 4 XL using Tapatalk

[RickD427]

Originally Posted by Uncivil Engineer

This no personal right nonsense needs to end. Please point to one other "collective right" in the Bill of Rights? Further the Constitution compels the Congress to setup a postal system yet that didn't need to be included in the Bill of Rights. Why would the framers need to insure a right for a militia but not one to stand up an army? The notion of a collective right is laughable.

Sent from my Pixel 4 XL using Tapatalk

Unfortunately it's not laughable.

Heller should put the question to bed. Heller dealt squarely with the question of a collective right, or personal right. That conclusion was subsequently made binding on the states under McDonald.

But the advocates for that POV can point the fact that no other "Right" (and I qualify with the "Right" in quotation marks as I personally subscribe to the concept contained in the Declaration of Independence that "Rights" are endowed by the creator, not by the government) provided for in the Constitution, and its amendments, contains a qualifying statement of purpose.

[ojisan]

Originally Posted by Uncivil Engineer

This no personal right nonsense needs to end. Please point to one other "collective right" in the Bill of Rights? Further the Constitution compels the Congress to setup a postal system yet that didn't need to be included in the Bill of Rights. Why would the framers need to insure a right for a militia but not one to stand up an army? The notion of a collective right is laughable.

Sent from my Pixel 4 XL using Tapatalk

Not trying to pick on you.

[champu]

Originally Posted by MajorCaliber

This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

I think the circuit court arguments/conclusions about bans on "military style arms" are a pivot to Heller and the clarification that it is an individual right not dependent upon service in a militia. Think of it as them saying, "Oh, you want guns unrelated to being in the military? Then you can have guns unrelated to the military! Naaaa naaaa naaaa boo boo! I'm not infringing you! I'm not infringing you!"

And now we're stuck waiting for SCOTUS to "turn this g****** car around!"

[TFA777]

Originally Posted by Uncivil Engineer

This no personal right nonsense needs to end. Please point to one other "collective right" in the Bill of Rights? Further the Constitution compels the Congress to setup a postal system yet that didn't need to be included in the Bill of Rights. Why would the framers need to insure a right for a militia but not one to stand up an army? The notion of a collective right is laughable.

Sent from my Pixel 4 XL using Tapatalk

I think the most important thing about the bill of rights is its context as negative rights.
I.e. limitations on the government (NOT the people).
Congress has got it upside down, they believe in positive rights (free college, free healthcare, and by extension the government 'granting' you the 'right' to own firearms).

Stricter application of the Constitution would result in very limited government since they basically have no right to legislate on most items (the bulk of laws are passed using the interstate commerce clause which the insane SCOTUS decision in Wikard v Filburn paved the way for large federal government).

[DentonandSasquatchShow]

I was really hoping for some news on this front but alas it's just arguing.

Someone please call me when I can have my standard cap mags like I'm meant to.

[mrdd]

Originally Posted by MajorCaliber

This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

The purpose of a militia is not only to defeat an army, if I understand you correctly.

A militia needs to be able to defeat armies, other militias, and furthermore, an individual needs to have the ability to stand up against another individual equipped with the weapons of the day.

[mrdd]

Originally Posted by TFA777

I think the most important thing about the bill of rights is its context as negative rights.
I.e. limitations on the government (NOT the people).
Congress has got it upside down, they believe in positive rights (free college, free healthcare, and by extension the government 'granting' you the 'right' to own firearms).

Stricter application of the Constitution would result in very limited government since they basically have no right to legislate on most items (the bulk of laws are passed using the interstate commerce clause which the insane SCOTUS decision in Wikard v Filburn paved the way for large federal government).

Agree completely.

And yes, Wickard is a curse, but I am not sure that bell can be un-rung without serious damage to the nation. The federal government has gotten too large, but trying to unravel the complexity may be impossible without serious negative effects on many components of our society.

[OleCuss]

Back in the day the militia had policing functions and it could be argued that this was their primary function.

Note that to this day the Kalifornia "unorganized" militia can be called up by the governor.

Think of the militia as being the community being organized to defend itself from bad guys - be they individual miscreants, organized gangs, or invaders of the more formal types.

[TFA777]

Originally Posted by OleCuss

Back in the day the militia had policing functions and it could be argued that this was their primary function.



Note that to this day the Kalifornia "unorganized" militia can be called up by the governor.



Think of the militia as being the community being organized to defend itself from bad guys - be they individual miscreants, organized gangs, or invaders of the more formal types.

Sort of like neighborhood watch...with rifles... ;-)

Post 1776....whoooo

[PMACA_MFG]

Your mostly missing the meaning of the word "A".

[tonyxcom]

Someone going to make an actual magazine thread again?

[bohoki]

Originally Posted by mrdd

The purpose of a militia is not only to defeat an army, if I understand you correctly.

A militia needs to be able to defeat armies, other militias, and furthermore, an individual needs to have the ability to stand up against another individual equipped with the weapons of the day.

scary part is this argument would become moot if california made a law that requires invading armies to use only flintlock mechanisms

[RANGER295]

Originally Posted by MajorCaliber

This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

Aside from the problems with restricting firearms, the most dangerous part about your argument is how it defines "the people" as the state. It would mean that the second half of the first amendment would only allow the states to petition the federal government, the fourth amendment would somehow only apply to maybe state owned properties being invaded by the federal government, the ninth amendment would be about the states and others trough out the constitution.

The wording of the tenth amendment becomes problematic with this argument because it refers to "the states" and "the people" as separate entities. You cannot use the same name for different entities in the same document which totally unravels the argument that "the people" in the second amendment are actually the collective people represented by the state.

Well regulated at the time also meant well maintained in the sense that there need to be a large number of people proficient and willing to use their arms.

[Geofois]

I was speaking to someone who happened to be from England and he was arguing similarly about "people" not being actual people and kept referring to only half the 2A when it addresses militia vs people. That's the problem when people try to ignore half of it. There is a reason the founding fathers specifically speak of "militia" then in a second sentence speak of "people". I had to educate him that people with their own firearms literally had to volunteer to fight against the British. The British did not pack up and go home in 1776 or in 1789 or in 1812. The actual people needed to be armed whether right tor wrong to continue to fight against foreign armies and perhaps wrongly against native Americans(discussion for another day). Also in many other documents when the founding fathers speak of "people" they are in fact referring to actual civilian people not the state. This is why the supreme court held people to be people. So there is a better argument to be made that actual people need to be armed with arms that can match foreign and domestic armies. No reasonable person can think it can mean only muskets can be kept and borne. The 2A wasn't meant for hunting, it was specifically meant to fight against militaries. I'm clueless but that's my 2 cents.

[MajorCaliber]

Originally Posted by RANGER295

Aside from the problems with restricting firearms, the most dangerous part about your argument is how it defines "the people" as the state.

Actually I agree with your position completely. I think my point got lost somewhere.

Just to be clear, I was NOT arguing that it is not an individual right, I think it is. I was also NOT arguing that it only applies to flintlocks. I don't think it does. I was simply making the point that while there might be some, albeit incorrect, arguments for either of those positions separately, it is absolutely nonsensical to simultaneously argue both, because they are mutually exclusive.

[Cincinnatus]

Originally Posted by bohoki

scary part is this argument would become moot if california made a law that requires invading armies to use only flintlock mechanisms

Yes, I'm absolutely positive that invading armies would turn around and go home to furnish themselves with flintlocks, then return to the battlefield.

Reminds me of the scene in "Blazing Saddles" where the whole horde of attackers, led by Slim Pickens, came across the tollbooth that required dimes and had to send someone back for an "*****load of dimes".

Here ya go - https://www.youtube.com/watch?v=SbWg-mozGsU

[Uncivil Engineer]

Are you sure an invading army wouldn't be considered liberators by the few gun owners California has left?

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[JoyfulJoker]

[Rusty Bolts]

Originally Posted by RickD427

Unfortunately it's not laughable.

Heller should put the question to bed. Heller dealt squarely with the question of a collective right, or personal right. That conclusion was subsequently made binding on the states under McDonald.

But the advocates for that POV can point the fact that no other "Right" (and I qualify with the "Right" in quotation marks as I personally subscribe to the concept contained in the Declaration of Independence that "Rights" are endowed by the creator, not by the government) provided for in the Constitution, and its amendments, contains a qualifying statement of purpose.

Nor does any other “Right,” enumerated or otherwise, have a such a bright line as “shall not be infringed.” (Emphasis is mine).

Rusty Bolts

[Cincinnatus]

Originally Posted by Uncivil Engineer

Are you sure an invading army wouldn't be considered liberators by the few gun owners California has left?

Sent from my Pixel 4 XL using Tapatalk

Depends on the language they speak, n'est ce pas?

[USMCmatt]

So what is the next day we see action on this? Trying to poke around and can't find it.

[sbrady@Michel&Associates]

The day that the Ninth Circuit schedules it for oral argument.

There is no telling when that might be. Sorry, that's just the way it is.

[that one guy]

I have a question, since possession is no longer a crime due to freedom week. The mags are in state already,they weren’t imported after the fact. Would they be legal to sell as is?

[sbsyncro]

Originally Posted by that one guy

I have a question, since possession is no longer a crime due to freedom week. The mags are in state already,they weren’t imported after the fact. Would they be legal to sell as is?

My guess is that the issue is for the buyer, since he/she can no longer legally acquire them in California.

[Cincinnatus]

Originally Posted by that one guy

I have a question, since possession is no longer a crime due to freedom week. The mags are in state already,they weren’t imported after the fact. Would they be legal to sell as is?

NO.

Read the law.

[RANGER295]

Originally Posted by that one guy

I have a question, since possession is no longer a crime due to freedom week. The mags are in state already,they weren’t imported after the fact. Would they be legal to sell as is?

No. It was only legal for that one week. Those that participated in that week cannot be prosecuted for possession of those mags. They may not now break the law by selling them and it would be illegal for the person getting them to acquire them so wobblers for both people if I understand the law correctly. I am also not convinced that the people that aquired mags during that week will be able to legally keep them if this case goes south on us.

[bruss01]

Originally Posted by Dvrjon

That line of reasoning appears to have been quashed by precedent.

Judge Benitez addressed this type of reasoning in his ruling (Page 19, Line 17) when discussing the state’s claim that LCMs are uncommon.

I feel compelled to point out that Judge Benitez's reasoning, while I personally agree with it, has been appealed to the 9th circuit. If it hadn't been appealed you would be correct about "precedent"... but a decision under appeal is not set precedent and cannot be cited as such.

Judge Benitez gave us one week of freedom with the way he issued his decision, and a few months of breathing space before we learn whether we have to alter, sell or destroy our +++ mags. Once appealed to the 9th, it is out of his hands for good and the 9th can do what they like... Benitez's wise words carry zero legal weight at this point.

[Dvrjon]

Originally Posted by bruss01

I feel compelled to point out that Judge Benitez's reasoning, while I personally agree with it, has been appealed to the 9th circuit. If it hadn't been appealed you would be correct about "precedent"... but a decision under appeal is not set precedent and cannot be cited as such.

Judge Benitez gave us one week of freedom with the way he issued his decision, and a few months of breathing space before we learn whether we have to alter, sell or destroy our +++ mags. Once appealed to the 9th, it is out of his hands for good and the 9th can do what they like... Benitez's wise words carry zero legal weight at this point.

The Benitez reasoning I pointed out dealt solely with debunking the State’s claim that LCMs aren’t in common use in CA. His reasoning in rejecting this concept was founded on the precedent of Friedman v. City of Highland Park, Illinois, 784 F3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so the it (sic) isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”). That’s not reasoning which can be cast aside; it’s the fruit of a settled case of law.

https://www.calguns.net/calgunforum/...postcount=1761

Regardless, if the CA 9 finds to uphold the law, one can expect an action to stay the execution of the decision until SCOTUS appeal is dealt with. That’s two years for CA9 and 5 more for SCOTUS.

[Dvrjon]

Originally Posted by Cincinnatus

NO.

Read the law.

This suggestion is only valid if one also suggests reading Judge Benitez’ stay of his ruling.

The last page details what portions of the law to be read are stayed or in effect.

[jaymz]

Originally Posted by Dvrjon

This suggestion is only valid if one also suggests reading Judge Benitez’ stay of his ruling.

The last page details what portions of the law to be read are stayed or in effect.

Interesting. The last paragraph seems to say that those that participated in Freedom Week cannot be prosecuted for a PC 32310 (a) or (b) violation because the permanent injunction stays in effect for those persons or entities.

Am I wrong?

Because if I’m not, that would mean that anyone that participated in Freedom Week could continue to buy, sell, manufacture, etc. “LCM’s” indefinitely.

[Dvrjon]

Originally Posted by jaymz

Interesting. The last paragraph seems to say that those that participated in Freedom Week cannot be prosecuted for a PC 32310 (a) or (b) violation because the permanent injunction stays in effect for those persons or entities.

Am I wrong?


Because if I’m not, that would mean that anyone that participated in Freedom Week could continue to buy, sell, manufacture, etc. “LCM’s” indefinitely.

There are pages of past discussion on the possible ambiguity of that passage. It appears to mean either:
1. Individuals participating in Freedom Week are indemnified for their actions during that time, or,
2. Individuals participating in Freedom Week are forever exempted from the provisions of the statute.

In the context of the case under appeal, and remembering this language is contained in a lower court stay, which makes more sense?

[bruss01]

Originally Posted by Dvrjon

The Benitez reasoning I pointed out dealt solely with debunking the State’s claim that LCMs aren’t in common use in CA. His reasoning in rejecting this concept was founded on the precedent of Friedman v. City of Highland Park, Illinois, 784 F3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so the it (sic) isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”). That’s not reasoning which can be cast aside; it’s the fruit of a settled case of law.

https://www.calguns.net/calgunforum/...postcount=1761

Regardless, if the CA 9 finds to uphold the law, one can expect an action to stay the execution of the decision until SCOTUS appeal is dealt with. That’s two years for CA9 and 5 more for SCOTUS.

I understand you better now, thanks for clarifying.

It's not a binding precedent since that decision was in the 7th circuit, but it can be cited, sure. The 9th is free to differ, and it would take SCOTUS to address the difference at that point.

[PMACA_MFG]

Originally Posted by jaymz

Interesting. The last paragraph seems to say that those that participated in Freedom Week cannot be prosecuted for a PC 32310 (a) or (b) violation because the permanent injunction stays in effect for those persons or entities.

Am I wrong?

Because if I’m not, that would mean that anyone that participated in Freedom Week could continue to buy, sell, manufacture, etc. “LCM’s” indefinitely.

That sort of talk is what causes unrest. Plus it makes the admins delete the thread.