DUNCAN V. BONTA 9-22 Magazines, STAYED until appeal, ORAL ARGS week of 3-24-24

[Sgt Raven]

Originally Posted by SpudmanWP

It's fine as long as it's read in context.

The only thing it allows is a more nuanced look at the analog process. It does not abrogate the government's need for an analog, allows for a larger timeframe for the analog, removes the need for the regulations to be "traditional", etc.

It's heavily misapplied by states.

Mark W Smith in the Harvard Law Review.

That contention is wrong because Heller?s ?in common use? test governs in all arms-ban cases including ?assault weapon? bans, ?large capacity magazine? bans, and non-roster handgun bans. The language from Bruen regarding technological changes and societal concerns is not a legal test that governs decisions either in arms-ban cases or in non-arms-ban cases. It is part of a description of the methodology that Bruen lays out for lower courts in deciding ?other cases? not governed by Heller?s ?in common use? test or by Bruen?s actual decision regarding restrictive, discretionary licensing systems regulating the public carry of arms.

https://journals.law.harvard.edu/jlp...-mark-w-smith/

[Pranqster]

Originally Posted by Bhobbs

It?s all a charade. The end result will be the same, no matter what is submitted.

Thats the same WEAK, DEFEATIST argument that got Biden elected.

[Bhobbs]

Originally Posted by Pranqster

Thats the same WEAK, DEFEATIST argument that got Biden elected.

No, massive fraud got Biden elected. Trump got the most votes ever for a sitting president.

The 9th circuit has never let a pro gun ruling stand. You can go blindly through this or realize what the situation is. That?s your choice.

[SpudmanWP]

Originally Posted by Sgt Raven

Mark W Smith in the Harvard Law Review.
https://journals.law.harvard.edu/jlp...-mark-w-smith/

Exactly.

Heller already decided the criteria for an arms ban case. There is no reanalysis of the THT test needed as even the DOJ's Solicitor General testified in front of SCOTUS to that fact.



btw, Heller also settled the test for all trigger locks, safe storage, and other similar regulations.

Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional

[AlmostHeaven]

Originally Posted by SpudmanWP

Exactly.

Heller already decided the criteria for an arms ban case. There is no reanalysis of the THT test needed as even the DOJ's Solicitor General testified in front of SCOTUS to that fact.

btw, Heller also settled the test for all trigger locks, safe storage, and other similar regulations.

The Supreme Court needs to better enforce District of Columbia v. Heller. Liberal lower courts continue to defy its holdings about arms bans with impunity.

[SpudmanWP]

No ban cases post-Bruen have made it back to SCOTUS in order to reiterate that Heller is the binding principle. A Per Curium decision would be the optimal path, just as they did in Caetano, as once the "In Common Use" test is satisfied the case is over.

[AlmostHeaven]

Originally Posted by SpudmanWP

No ban cases post-Bruen have made it back to SCOTUS in order to reiterate that Heller is the binding principle. A Per Curium decision would be the optimal path, just as they did in Caetano, as once the "In Common Use" test is satisfied the case is over.

I think a few Justices want to avoid emergency motions and per curium decisions at all costs. Knock on wood and cross your fingers for the Seventh Circuit Illinois case or Fourth Circuit Maryland lawsuit to reach the Supreme Court in 2024.

[SpudmanWP]

Per Curium decisions are preferred, IMHO, due to them dealing with "settled" law. There is no need to go through another lengthy argument process. SCOTUS does not have the time to relitigate every issue, over and over again, when they already did the work.

Remember that Caetano was a Per Curium because there was no new legal standard to establish. It literally just pointed to Heller and said 'We already decided this'.

While there may be a few Justices that don't like them, Per Curium decisions do not have to be unanimous so if they are in the minority, they do not get veto power.

[AlmostHeaven]

Originally Posted by SpudmanWP

Per Curium decisions are preferred, IMHO, due to them dealing with "settled" law. There is no need to go through another lengthy argument process. SCOTUS does not have the time to relitigate every issue, over and over again, when they already did the work.

Remember that Caetano was a Per Curium because there was no new legal standard to establish. It literally just pointed to Heller and said 'We already decided this'.

While there may be a few Justices that don't like them, Per Curium decisions do not have to be unanimous so if they are in the minority, they do not get veto power.

Justices Roberts and Barrett appear to disfavor per curium decisions. In combination with the three Democratic appointees, they would have a working majority.

In my opinion, a fully briefed and argued assault weapons and large-capacity magazine ban case decided on the merits in the 2024-2025 term is the best outcome.

[ar15barrels]

Originally Posted by AlmostHeaven

I think a few Justices want to avoid emergency motions and per curium decisions at all costs. Knock on wood and cross your fingers for the Seventh Circuit Illinois case or Fourth Circuit Maryland lawsuit to reach the Supreme Court in 2024.

I hope every case gets to ussc and they consolidate them or hold the similar cases and give orders based on whichever case they actually issue an opinion.

However, we need a specific decision on a CA case to actually change our CA laws.
A positive outcome in either the 4th or 7th circuit cases just becomes more precedent for us in CA as neither of those cases specifically deal with our CA laws and therefore the resulting orders won?t actually negate CA law.

Assuming the 9th ties up this case until after one of the other cases is resolved, we STILL have to get a case in our jurisdiction to negate the CA laws.
That means starting over in federal court and playing the 9th circuit games again because the 9th circuit is not going to follow any new USSC decisions any differently than they already follow the old USSC decisions.

[SpudmanWP]

SCOTUS does not have time to hold a fully briefed & argued session for every gun ban case that States come up with. At some point, they need to just point at "In Common Use" and say NO.

Imagine all the ways they will redefine a ban on the same types of arms:

--Named bans (Colt AR-15, Bushmaster, etc)
--Bans on accessories (handguards, flash hiders, handgrips, adjustable stocks, etc)
--Bans on features (semi-automatic with a detachable mag, a rifle of less than x lbs, less then x inches long, etc)
--Bans or RoF (more than 3 per second, etc)

[AlmostHeaven]

The situation is difficult. If the Ninth Circuit ties up Duncan v. Bonta and Miller v. Bonta for years, the rest of the country cannot pause their legal challenges and gamble on the Supreme Court conservative majority lasting through the decade.

The best outcome would be Republican victories in 2024 and a durable 6-3 composition, but this is a huge uncertainty in of itself.

[Bhobbs]

Originally Posted by SpudmanWP

No ban cases post-Bruen have made it back to SCOTUS in order to reiterate that Heller is the binding principle. A Per Curium decision would be the optimal path, just as they did in Caetano, as once the "In Common Use" test is satisfied the case is over.

Duncan and Bianchi were both GVR?d post Bruen and should have actually been ruled on by SCOTUS.

[AlmostHeaven]

Originally Posted by Bhobbs

Duncan and Bianchi were both GVR'd post Bruen and should have actually been ruled on by SCOTUS.

Remanding the higher-profile controversies, high-capacity magazine bans and assault weapons bans, opting instead to only rule on concealed carry, was a mistake.

[ar15barrels]

Originally Posted by SpudmanWP

SCOTUS does not have time to hold a fully briefed & argued session for every gun ban case that States come up with. At some point, they need to just point at "In Common Use" and say NO.

Imagine all the ways they will redefine a ban on the same types of arms:

--Named bans (Colt AR-15, Bushmaster, etc)
--Bans on accessories (handguards, flash hiders, handgrips, adjustable stocks, etc)
--Bans on features (semi-automatic with a detachable mag, a rifle of less than x lbs, less then x inches long, etc)
--Bans or RoF (more than 3 per second, etc)

The 9th circuit does not follow the USSC.

How do we negate a CA law with a court case if the 9th stands between CA citizens and freedom being dispensed by federal court that then gets appealed to the 9th?

[splithoof]

Originally Posted by AlmostHeaven

Remanding the higher-profile controversies, high-capacity magazine bans and assault weapons bans, opting instead to only rule on concealed carry, was a mistake.

As was allowing states to retain permitting systems. The ENTIRE COUNTRY should be constitutional carry. That would have ended some of this BS of waiting eighteen months to get a simple CCW permit from these crooks in places like Los Angeles.

[SpudmanWP]

Originally Posted by Bhobbs

Duncan and Bianchi were both GVR?d post Bruen and should have actually been ruled on by SCOTUS.

Appeals courts (to include SCOTUS) are not "courts of discovery" where new evidence is submitted. They generally rule on what is brought in front of them. The 4th even mentioned this directly in the oral arguments in Bianchi.

Since none of the GVR'd cases had any briefs that were applicable to the new Bruen standard, the proper course of action was to GVR them so lower courts could do all of the legwork. While Bianchi has been sitting on their decision, Benitez in Duncan did a superb job building a solid THT case against mag bans.

[SpudmanWP]

Originally Posted by ar15barrels

The 9th circuit does not follow the USSC.

How do we negate a CA law with a court case if the 9th stands between CA citizens and freedom being dispensed by federal court that then gets appealed to the 9th?

As more cases are decided by SCOTUS, they will be inclined to intervene. On top of that, as more cases are settled and the legal standards are set, an official will be opened up to civil rights lawsuits if they continue to pass laws, and LEOs try to enforce laws that are unambiguously violating our 2nd Amendment rights.

[Bhobbs]

Originally Posted by SpudmanWP

Appeals courts (to include SCOTUS) are not "courts of discovery" where new evidence is submitted. They generally rule on what is brought in front of them. The 4th even mentioned this directly in the oral arguments in Bianchi.

Since none of the GVR'd cases had any briefs that were applicable to the new Bruen standard, the proper course of action was to GVR them so lower courts could do all of the legwork. While Bianchi has been sitting on their decision, Benitez in Duncan did a superb job building a solid THT case against mag bans.

Bruen didn’t need to be applied to arms bans cases, like Duncan and Bianchi. Their failure has set us back years.

[SpudmanWP]

You still need evidence to disprove "In Common Use" for the government to be able to ban in Bianbchi. Since Bianchi was just a motion and not a ruling on a complete case, the briefs were never made.

As to Duncan, there has not been the THT test as to the limiting of capacity.

[Sgt Raven]

Originally Posted by SpudmanWP

You still need evidence to disprove "In Common Use" for the government to be able to ban in Bianbchi. Since Bianchi was just a motion and not a ruling on a complete case, the briefs were never made.

As to Duncan, there has not been the THT test as to the limiting of capacity.

IDK, didn't Judge Benitez apply Heller to Duncan the 1st time around? It's a ban case so the THT was done in Heller.

[SpudmanWP]

Remember that the State never had a chance to do the THT test the 1st time as all they needed at the time was Interest-balancing reasoning. Now that they needed a THT test, they needed to submit that to a court, hence why a "Court of Discovery" was needed.

[Bhobbs]

Originally Posted by SpudmanWP

You still need evidence to disprove "In Common Use" for the government to be able to ban in Bianbchi. Since Bianchi was just a motion and not a ruling on a complete case, the briefs were never made.

As to Duncan, there has not been the THT test as to the limiting of capacity.

Magazines holding more than 10 rounds are in common use. You don?t need THT.

[Drivedabizness]

IDK where you folks are getting all this "new" stuff. Bruen is chalk full of language indicating the Heller standard was the correct standard and that SCOTUS meant what it said. The only real "new"is that impacting the 2A is presumptively unlawful unless the State can carry the burden (using THT - NOT interest balancing) of proving that the statute/regulation at hand has a historical analogue.
Yes, SCOTUS included unhelpful language, again. Judge B has gotten it right (IMHO). He told them to provide applicable analogues from a specific time period. He allowed them to exceed his guidance and even looked at the superfluous stuff they submitted.
These delay tactics are maddening..

[splithoof]

Originally Posted by Drivedabizness

These delay tactics are maddening..

I think Randall from ar15barrels has correctly summed up the whole bunch of shenanigans. As I see it, the 9th openly defies SCOTUS, whom they know has ZERO power to do anything about it. If they did, things would already have been better. It may appear on the surface that some things like CCW issues are better, but that has been negated by new laws like SB2 that will likely take effect. And the state keeps piling on more and more, all knowing that delay tactics drag on for decades. Meanwhile, many of continue to grow old and die off while waiting for what may never come. The folks in black robes and grey suits blather on and on, while making long careers over civil rights being destroyed.

[Librarian]

OK folks, having had a couple days to discover new stuff to say, we're drifting back into generalities.

Nothing wrong with the content itself, but it needs its own thread.

Someone start one, please.

Closed, for now.

[SpudmanWP]

Here is the opening brief from Bonta. It'll take a while to dig through to answer your question:

https://storage.courtlistener.com/re...45123.14.1.pdf

The Duncan response to this brief is not due till later in December.

[abinsinia]

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Massachusetts, New Jersey, Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin. Date of service: 11/28/2023. [12829560] [23-55805] (Dewar, Elizabeth) [Entered: 11/28/2023 11:49 AM]

https://storage.courtlistener.com/re...45123.17.0.pdf

Misapplying the framework set forth in Bruen, the District Court concluded
that Plaintiffs-appellees? Second Amendment challenge to this law is likely to
succeed on the merits. ...