WIESE v Becerra, Large Capacity mags - Alive again, 11-7-22

[ironpegasus]

Originally Posted by Drivedabizness

I had the same question - wouldn't District judges just dismiss citing Fyock??

Presumably they could, but those that filed the case may be hoping that the larger scope of having to keep it out of an entire state rather than just a locality along with the inability to sell the LCMs or otherwise be compensated for the loss of property may be recognized as a different set of circumstances. Especially when one figures into account the lack of availability of OEM 10 round magazines for certain weapons and the ambiguity surrounding others like the 10 round 458 SOCOM (also a 30 round 5.56) or even a 10 round 6.8 SPC which would probably hold 11-12 5.56. These are points that may require that this case be reviewed afresh and separate from the findings in Fyock. Of course this being the 9th, I don't particularly expect a different outcome except perhaps at the 3-judge panel which will be en banc'ed if it rules in our favor, then de-published and overturned.

[BumBum]

Just FYI, the Wiese motion for a preliminary injunction was denied today. Attached is the order. My hope is that at this point, with the win on Duncan on the same issue, that this lawsuit will be dismissed. There is no upside.

[CandG]

I guess it's good that this injunction was attacked from 2 different angles to increase our chances, but at this point it seems clear to me that the CRPA case is looking more promising

[Rickrock1]

Originally Posted by taperxz

There hasn't been much good for any gun owner in CA in the last 40 years. Let's face it, even if these CASESgo to SCOTUS, Gorsuch needs help on 2A stuff. He can't do it alone

What's your point?

YeS but so confusing

[ronlglock]

Originally Posted by BumBum

Just FYI, the Wiese motion for a preliminary injunction was denied today. Attached is the order. My hope is that at this point, with the win on Duncan on the same issue, that this lawsuit will be dismissed. There is no upside.

So should this suit have been filed at all, or should all of the $$ spent on it been spent on Duncan? It this a case of bad luck, the "wrong" judge, or a bad offensive team?

[CandG]

Originally Posted by ronlglock

So should this suit have been filed at all, or should all of the $$ spent on it been spent on Duncan? It this a case of bad luck, the "wrong" judge, or a bad offensive team?

I think this suit was filed before Duncan, but if it were my money I'd concentrate on funding Duncan at this point.

[Discogodfather]

All funds going to CRPA and Michel, I'll re-evaluate when I see results from CGF/FPC and some more transparency and cooperation. No reason to give to anyone but CRPA right now, it's been a great week.

[madmax64]

Does that mean I can buy high capacity magazines tomorrow??

[homelessdude]

Read the injunction in the Duncan CRPA/NRA case it should make it pretty easy to figure were the money should flow. A great read.

[Discogodfather]

Originally Posted by madmax64

Does that mean I can buy high capacity magazines tomorrow??

No man, this only effects old fuddy duddies like myself who have stuff from 20 years ago.

[pluke the 2]

Originally Posted by BumBum

Just FYI, the Wiese motion for a preliminary injunction was denied today. Attached is the order. My hope is that at this point, with the win on Duncan on the same issue, that this lawsuit will be dismissed. There is no upside.

Hmm

[pluke the 2]

Originally Posted by Discogodfather

All funds going to CRPA and Michel, I'll re-evaluate when I see results from CGF/FPC and some more transparency and cooperation. No reason to give to anyone but CRPA right now, it's been a great week.

:Thumbsup:

[CandG]

Originally Posted by madmax64

Does that mean I can buy high capacity magazines tomorrow??

From the Duncan V. Becerra thread:

Originally Posted by cockedandglocked

For those asking questions such as "Does this mean I can buy LCMs now?" and "Does this mean LCMs are legal in XYX city now?"

The injunction ruled that the status quo is to be maintained. So whatever was legal yesterday, will be legal for the foreseeable future. Likewise, whatever was illegal yesterday, will continue to be illegal for now. In essence, nothing will be different after 7/1 than it is now, with regards to LCMs, until the final court ruling.

You still can't acquire them anywhere in CA, and in localities where possession is banned you still can't possess them, but throughout the rest of the state you can continue to possess and use any legally owned LCMs.

[BumBum]

Originally Posted by ronlglock

So should this suit have been filed at all, or should all of the $$ spent on it been spent on Duncan? It this a case of bad luck, the "wrong" judge, or a bad offensive team?

I don’t know if it can be said the case never should have been filed (although I have been critical in this thread that they filed this suit when it was well-known that NRA/CRPA was about to file). And I am not going to comment on the performance of the lawyers. But when it was made apparent that the judge in Wiese was hostile to plaintiffs, while the judge in Duncan was very friendly to plaintiffs, that should have cued FPC to back off. Instead, FPC filed a bunch of motions, which likely cost a bunch of money that could have gone to other pro-2A causes. I think that is the main problem here. FPC stepped on the gas when they should have been hitting the brakes.

Let’s hope they do the right thing now though and back off.

[mshill]

Originally Posted by ronlglock

So should this suit have been filed at all, or should all of the $$ spent on it been spent on Duncan? It this a case of bad luck, the "wrong" judge, or a bad offensive team?

The judge went right to the littany of gun control catch phrases....
Public Safety, mass shootings, intermediate scrutiny. He even admitted that it would cause irreparable harm if the injunction was not ordered and then went on to justify it by saying the defendants (the legislature) would suffer harm also because they (magazines) are a threat to public safety. Quite the bit of judicial gymnastics going on here.

[Citizen One]

Originally Posted by mshill

The judge went right to the littany of gun control catch phrases...

Yep. I read through it and all I could do was facepalm.

As a non-lawyer reading this, it seemed this judge only cared about copying & pasting any gun-control-friendly case law, no matter how flawed it was, and passing the buck. Rather than impartially recognizing as a judge when an injustice had occurred, and exercising his critical thinking skills. And he routinely cites both Fyock and Heller right next to each other. It's like he's just grabbing the sequences of words he wants to hear out of both judgements, without considering their context. If you actually read the citations, you realize doing so is contradictory. Some choice quotes:

The ban may implicate the core of the Second Amendment because it restricts the ability of law-abiding citizens to possess large capacity magazines within their homes for self-defense. See Fyock, 779 F.3d at 999. However, the ban “does not affect the ability of law-abiding citizens to possess the ‘quintessential self-defense weapon’ -– the handgun.

Once again someone absolutely clueless about firearms is put at the helm of regulating them. Would someone educate Judge Shubb that pistols have standard double-stack magazines of ~15-33rnds too? Or how a 9mm is different from a 357Magnum, and there's a thing called "power factor"?

Or, for the sake of his myopic argument, about 223 caliber pistols? Or that not everyone uses/has the luxury of a handgun (or multiple guns) for self-defense? Or that handguns are also heavily discriminated against in CA? If you have three people rushing you busting down the door -- or a guy has a gun to your father's head and is using him as a human shield -- you got what you got.

http://www.yourcentralvalley.com/new...cide/733636775
(Oh whoops, that's "outside the scope" of this suit. Can't acknowledge that, can we!)

http://dailycaller.com/2017/04/04/ar...ould-not-have/
(Oh, and that other thing happened in another state, so it's toooootally not relevant. Nope, no-sirree.)

Contrast this to Judge Benitez's intelligent and critically thought out "cut-to-the-crap" quote from the Duncan injunction, decrying this piecemeal-style attack on a constitutional right. It is even more damning of Judge Shubb's response. I am no law man, but I'm pretty sure it's supposed to go SCOTUS' opinion >> 9th District's (legally questionable en-banc) opinion >> a Municipal (Fyock?) court's opinion. From Duncan (indented):

See id. at 953 (Callahan, J., dissenting) (“The counties and California have chipped away at the Plaintiffs’ right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining constitutionality.").

Some more gems:

Plaintiffs contend that California’s large capacity magazine ban violates the Second Amendment, is an unconstitutional taking under the Fifth and Fourteenth Amendments, is void for vagueness, and is overbroad. The court proceeds to examine plaintiffs’ showing with respect to each claim below.

Really? I'm pretty sure Senator Norman Mineta (and his bat) would disagree with that statement. As well as all Japanese-American citizens who lost their crap.
http://www.npr.org/templates/story/s...oryId=92579355

b. Appropriate Level of Scrutiny

In determining what level of scrutiny applies to the ban on large capacity magazines, the court considers (1) how closely the law comes to the core of the Second Amendment right which is self-defense, and (2) how severely, if at all, the law burdens that right. Fyock, 779 F.3d at 998-99 (citing Chovan, 735 F.3d at 1138). Intermediate scrutiny is appropriate if the regulation does not implicate the core Second Amendment right o if the regulation does not place a substantial burden on that right. Id. at 998-99 (citing Jackson v. City & County of San Francisco, 746 F.3d 953, 964 (9th Cir. 2014)).

Mmkay. Copy and paste again I see. The 'ol 2A 2-step, perennial favorite of the anti-gun crowd. If it works, spam it, right? No critical thinking or situational awareness needed.

Indeed, it appears that virtually every other court to examine large capacity magazine bans has found that intermediate scrutiny is appropriate, assuming these magazines are protected by the Second Amendment.

See Fyock, 779 F.3d at 999; Kolbe, 849 F.3d at 138-139; N.Y. State Rifle & Pistol ***’n, Inc. v. Cuomo, 804 F.3d 242, 258-60 (2d Cir. 2015); Heller II, 670 F.3d at 1261- 62; S.F. Veteran Police Officers ***’n v. City & County of San Francisco, 18 F. Supp. 3d 997, 1002-04 (N.D. Cal. 2014). But see Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) (upholding municipal ban on assault weapons and large capacity magazines but declining to determine what level of scrutiny applied).

Uh.... this has to be the dumbest quote of the judgement. Judge Shubb cites case law from magazine-banning states.... as evidence of "every other court to examine 'LCM' bans". Really....?

He does realize that is a circular logic fallacy? If a state bans "LCM" in the first place, and the ban was upheld, there would be no case law saying greater scrutiny was needed. If it did, said law wouldn't exist... and there would be no legal challenges to cite! People don't file lawsuits challenging that a law doesn't exist, or a lawsuit has been won in their favor. (Normally... I know there are exceptions.)

So his sample of "every other court's opinion on LCM".... in reality is "every court that believes in banning LCM's opinion".... which naturally will favor the ban, "intermediate scrutiny", etc. Congratulations, Judge Shubb fails basic statistics! Elementary sampling bias. There's a lot more that makes me shake my head. I'm not sure if that is FPC's fault or the Judge's. But after reading the Duncan response then the Wiese response.... as a lay man.... the Weise response just comes off as..... lazy. I'm not sure what else to call it.

[LW6PPC]

Originally Posted by madmax64

Does that mean I can buy high capacity magazines tomorrow??

No. It means that you can keep the high capacity magazines that you have legally owned since 2000, for now at least.

[Drivedabizness]

Can we please agree to terms here?

The magazines in question ARE NOT high capacity.

They are standard capacity. That's kind of the point.

And aside from the faulty references to Fyock and population density (the 2A guarantees rights everywhere - not just in rural locals) I thoroughly enjoyed reading the decision in Duncan.

[stix213]

Originally Posted by Drivedabizness

Can we please agree to terms here?

The magazines in question ARE NOT high capacity.

They are standard capacity. That's kind of the point.

And aside from the faulty references to Fyock and population density (the 2A guarantees rights everywhere - not just in rural locals) I thoroughly enjoyed reading the decision in Duncan.

Then they are "Large-capacity magazines", since that is what they are referred to by the CA law this thread is referring to. Any other term is unnecessarily confusing.

[slayer61]

This state has the most effed up laws.

How does it make sense that I can own something, but not be allowed to buy the same forking thing??

[surfgeorge]

Originally Posted by slayer61

This state has the most effed up laws.

How does it make sense that I can own something, but not be allowed to buy the same forking thing??

You're fatal error (I know you were being rhetorical) is assuming/conjecturing that legislators/judges have any concern about "making sense"/being logically coherent and consistent. Obviously they don't.

[Librarian]

Originally Posted by surfgeorge

You're fatal error (I know you were being rhetorical) is assuming/conjecturing that legislators/judges have any concern about "making sense"/being logically coherent and consistent. Obviously they don't.

In addition, this seems to be yet another instance of the assumption that CA 'gun laws' are about guns.

They're not.

At one level they are about what is often called 'virtue signaling' - all the 'good people' agree guns are icky, so laws inhibiting them and those who want guns are positive developments.

At a more important level to politicians, they are a means to insure re-election - voting for bills is seen as 'doing something' - 'You elected me to do something about [whatever]; see my vote? I did something! Re-elect me so I can to continue to do things!'

And, failure to vote as leadership 'encourages' leads to the member's own bills getting blocked in committee, thus showing that the member 'can't get things done', with likely election consequences.

[IVC]

Originally Posted by Drivedabizness

The magazines in question ARE NOT high capacity.

They are standard capacity. That's kind of the point.

True, but irrelevant in a legal challenge. If they called them "dildos" in the PC, we'd be calling them "dildos" in the filing.

[Citizen One]

Originally Posted by IVC

True, but irrelevant in a legal challenge. If they called them "dildos" in the PC, we'd be calling them "dildos" in the filing.

https://en.wikipedia.org/wiki/Newspeak#Thought_control
Hats off to the Democrats. At least it goes to show they read books.

"The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of IngSoc, but to make all other modes of thought impossible. Its vocabulary was so constructed as to give exact and often very subtle expression to every meaning that a Party member could properly wish to express, while excluding all other meaning and also the possibility of arriving at them by indirect methods.

This was done partly by the invention of new words, but chiefly by eliminating undesirable words and stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meaning whatever."[9]

[Sousuke]

Seems pretty clear to me that FPC is ineffective and should relegated to the past.

[Jongage]

Originally Posted by BumBum

Oh goodie! Calguns Foundation and Firearms Policy Coalition are trying to stay relevant by secretly filing a lawsuit challenging the LCM law without telling anyone else. So glad they consulted with CRPA / Michel's office, especially considering they sent out a call for plaintiffs a few days ago...

http://www.calguns.net/calgunforum/s....php?t=1328911

Sounds like they were behind the 8ball on this one.

[Madmox]

Originally Posted by IVC

True, but irrelevant in a legal challenge. If they called them "dildos" in the PC, we'd be calling them "dildos" in the filing.

high capacity dildos!


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[Drivedabizness]

Originally Posted by IVC

True, but irrelevant in a legal challenge. If they called them "dildos" in the PC, we'd be calling them "dildos" in the filing.

How so - exactly?

Our opponents argue that these "large" capacity magazines are somehow "dangerous and unusual" - in fact it is a large part of the legal foundation they rely on to justify regulating/banning them.

While of course we wouldn't call them "dildo's" we can and should kick ourselves in the *** if we blythely accept their terms - which is partly what got us in the whole "assault weapons" (a term of political invention) morass to begin with.

[Hinnerk]

Originally Posted by Drivedabizness

Our opponents argue that these "large" capacity magazines are somehow "dangerous and unusual" - in fact it is a large part of the legal foundation they rely on to justify regulating/banning them.

...

Isn't the argument that they are "dangerous and unusual" rather defeated by the option to transfer them out of state?

[ronlglock]

Originally Posted by Hinnerk

Isn't the argument that they are "dangerous and unusual" rather defeated by the option to transfer them out of state?

Only dangerous and unusual in hands of CA citizens.


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[Hinnerk]

Originally Posted by ronlglock

Only dangerous and unusual in hands of CA citizens.


Sent from my iPhone using Tapatalk

Motion to strike all Defendant's exhibits concerning use of such magazines outside California. Irrelevant.

[Drivedabizness]

Originally Posted by Hinnerk

Isn't the argument that they are "dangerous and unusual" rather defeated by the option to transfer them out of state?

Do they become "safe" out of State? What's your point?

Or are you suggesting that they are being nice and letting us avoid confiscation/destruction??

[IVC]

Originally Posted by Drivedabizness

How so - exactly?

If the PC 32310 talks about "large-capacity magazines" defined in the PC 16740, then, when we file a challenge to the PC 32310 (or any related PC), we have to use the the same definitions so the judge knows what we are addressing.

It makes no sense to try to make a distinction without difference of "large" vs. "standard" when we are discussing the unconstitutional nature of the ban, not the choice of words in the PC.

We would look rather silly if one of our prayers for relief included "oh, and we don't want the DOJ to call them 'large capacity' because that's not nice."

[Markinsac]

The judge also cited a case on the taking or destruction of private party - Mugler v. Kansas (from 1887!!). This authorized destruction of alcohol stills and equipment.

The difference? People could rebuild with available materials. If all magazines are destroyed and the new law is then overturned, people would not be able to legally replace them as there were the old laws that protected the possession of existing magazines. The case would then become moot as there would be no legal way of obtaining replacements without the older existing laws also being overturned.

[IVC]

Originally Posted by Hinnerk

Isn't the argument that they are "dangerous and unusual" rather defeated by the option to transfer them out of state?

Not really.

Compare to the "roster lawsuit" where we can show that training materials explicitly say "don't use these 'safety' devices'," where we can get the same gun if it's private party transfer and where supposedly unsafe guns are grandfathered on the roster. Yet, we are getting turned down by the courts...

[IVC]

Originally Posted by Markinsac

If all magazines are destroyed and the new law is then overturned, people would not be able to legally replace them as there were the old laws that protected the possession of existing magazines. The case would then become moot as there would be no legal way of obtaining replacements without the older existing laws also being overturned.

It's a "feature," not a bug...

[Merovign]

As a side note, my Jimmies are still rustled about the whole nuisance thing. Seriously, lawfully owned property can be taken without due process because someone doesn't like it.

Do I get to add things to that list? Vuvuzelas?

[Whiskey_Sauer]

///

[Hopalong]

Originally Posted by Librarian

In addition, this seems to be yet another instance of the assumption that CA 'gun laws' are about guns.

They're not.

At one level they are about what is often called 'virtue signaling' - all the 'good people' agree guns are icky, so laws inhibiting them and those who want guns are positive developments.

At a more important level to politicians, they are a means to insure re-election - voting for bills is seen as 'doing something' - 'You elected me to do something about [whatever]; see my vote? I did something! Re-elect me so I can to continue to do things!'

And, failure to vote as leadership 'encourages' leads to the member's own bills getting blocked in committee, thus showing that the member 'can't get things done', with likely election consequences.

Unfortunately, this is the winning answer.

[Uncivil Engineer]

Originally Posted by Hopalong

Unfortunately, this is the winning answer.

I agree. So the best line of attack it's to show the virtues are at odds with one another. We need to reframe the gun laws as anti civil rights that disproportionately effect women and minorities. Supported by facts and evidence. Young progressives are ready to blame all actions by the government as racist. We simply need to arm then with those facts. There is ample historical documentation that gun control was instituted in California to disarm Hispanics and Asians. Further allowing sheriffs or any government official to deny a CCW systemically impeded women and minorities. Making cosmetic or better described ergonomic features illegal is women or disabled people that would make better use of or even require such features.