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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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  #2001  
Old 06-10-2021, 5:29 PM
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Quote:
answering brief due 10/20/2021.

Appellant's optional reply brief is due 21 days after service of the answering brief.
That is, nothing really interesting happens before November 10, 2021.
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  #2002  
Old 06-10-2021, 5:54 PM
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Originally Posted by HKAllTheThings View Post
Didn't realize until that video that Judge Benitez pulled the vaccine death equivalence thing.

You so crazy Beni
I think that was his best line! But I was laughing at every other paragraph he wrote. His magazine ruling was just as good.
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  #2003  
Old 06-10-2021, 6:38 PM
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Briefing schedule available at https://storage.courtlistener.com/re...2089.119.0.pdf

Matches the text of the docket entry.
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  #2004  
Old 06-10-2021, 6:40 PM
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Originally Posted by Librarian View Post
That is, nothing really interesting happens before November 10, 2021.
Except the questions of the motions panel's composition and whether they grant the stay.
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  #2005  
Old 06-10-2021, 8:35 PM
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Originally Posted by pacrat View Post
Ca is not quite banned. Even thought they call it that. Neutered ARs can still be legally bought/possessed, as long as it complies with "features".

It's all semantics. But the devil is in the details.
It's not semantics. Anything that falls under the definition of "assault weapon" is banned, by every definition of the word, and very clearly spelled out in the Penal Code, leaving no room for interpretation.

Sure, you can own things that aren't "assault weapons", such as neutered AR's, but that doesn't change the fact that there is a BAN in place, applying to anything and everything that the state decides is arbitrarily an "assault weapon". (Which, as they've demonstrated several times, is a goalpost they're quite happy to keep moving around)
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Last edited by CandG; 06-10-2021 at 8:41 PM..
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  #2006  
Old 06-10-2021, 8:46 PM
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EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 TO STAY JUDGMENT PENDING APPEAL

Last edited by FirearmFino; 06-10-2021 at 11:51 PM..
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  #2007  
Old 06-10-2021, 9:31 PM
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Originally Posted by FirearmFino View Post
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3TO STAY JUDGMENT PENDING APPEAL
Ha! They don't want to risk having another Freedom Week starting on July 4!

Really, it would not be good to have chaos in this situation, because the people who would be at risk would be California AR15 owners, and I would hate to see any of them getting in trouble by not precisely following the legal developments in this case. In fact, the Freedom Week magazine purchasers themselves might end up having to dispose of their mags if that cases loses in the end. And it could - if the Democrats can remove the filibuster and pack SCOTUS we'll lose all these cases. I don't think that's likely but it's in play.
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  #2008  
Old 06-10-2021, 9:42 PM
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Originally Posted by CandG View Post
It's not semantics. Anything that falls under the definition of "assault weapon" is banned, by every definition of the word, and very clearly spelled out in the Penal Code, leaving no room for interpretation.

Sure, you can own things that aren't "assault weapons", such as neutered AR's, but that doesn't change the fact that there is a BAN in place, applying to anything and everything that the state decides is arbitrarily an "assault weapon". (Which, as they've demonstrated several times, is a goalpost they're quite happy to keep moving around)


au contraire

Quote:
se·man·tics
noun
[1] ... the branch of linguistics and logic concerned with meaning. There are a number of branches and subbranches of semantics, including formal semantics, which studies the logical aspects of meaning, such as sense, reference, implication, and logical form, lexical semantics, which studies word meanings and word relations, and conceptual semantics, which studies the cognitive structure of meaning.
[2] ... the meaning of a word, phrase, sentence, or text.
Moving the goalpost as you stated, in relation to the "definition" of AW. By the state constantly "redefining the parameters" of WHAT CONSTITUTES an AW. Is the very definition of SEMANTICS.
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  #2009  
Old 06-10-2021, 9:43 PM
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Hm. 30 days should be enough time, and it shouldn't be an emergency motion to stay, yet the state is claiming that they must file an emergency motion for stay because if they filed a regular motion for stay and the 3 judge panel denied their motion, then they needed the opportunity to file an emergency stay motion en banc.

I'm hoping the AG is considered to be annoying the court at this point, but I won't hold my breath.
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  #2010  
Old 06-10-2021, 9:47 PM
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I thought the whole reason a 30 day stay was put in place was to prevent an emergency stay from being used. Confused.


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Originally Posted by BeAuMaN View Post
Hm. 30 days should be enough time, and it shouldn't be an emergency motion to stay, yet the state is claiming that they must file an emergency motion for stay because if they filed a regular motion for stay and the 3 judge panel denied their motion, then they needed the opportunity to file an emergency stay motion en banc.

I'm hoping the AG is considered to be annoying the court at this point, but I won't hold my breath.
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  #2011  
Old 06-10-2021, 9:58 PM
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Pyrrhic victory. If this had to do with abortion, gay rights, gay marriage, LBGTLMNOP, 6 year olds being prevented from getting sex changes. The court would be on it like BLM at a white on black police shooting. Justice my ***. A2
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  #2012  
Old 06-10-2021, 10:04 PM
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Originally Posted by Bruce3 View Post
I thought the whole reason a 30 day stay was put in place was to prevent an emergency stay from being used. Confused.
The AG has decided to file one anyway. They're saying they need relief sooner than 21 days (6/18) because they need a decision well in advance of the 30 day deadline so, on the chance that the motions panel rules they don't need a stay, they can then seek an appeal en banc on the motions panel. Also that the judge only gave them a 30 day stay instead of a full stay.

It's a bunch of crap really.
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  #2013  
Old 06-10-2021, 10:44 PM
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Originally Posted by CCWFacts View Post
Ha! They don't want to risk having another Freedom Week starting on July 4!
In fact, the Freedom Week magazine purchasers themselves might end up having to dispose of their mags if that cases loses in the end.

Yeah let’s see if that happens ….
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  #2014  
Old 06-11-2021, 12:26 AM
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Originally Posted by Bruce3 View Post
I thought the whole reason a 30 day stay was put in place was to prevent an emergency stay from being used. Confused.
It's bullcrap from Bonta. The time period cut-off for an emergency under 27-3 of the 9th's guidelines is 21 days, so the Temporary Stay extends beyond that making it not an emergency.

Pg 75:
https://cdn.ca9.uscourts.gov/datasto...cticeGuide.pdf
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  #2015  
Old 06-11-2021, 5:40 AM
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Originally Posted by HibikiR View Post
It's bullcrap from Bonta. The time period cut-off for an emergency under 27-3 of the 9th's guidelines is 21 days, so the Temporary Stay extends beyond that making it not an emergency.

Pg 75:
https://cdn.ca9.uscourts.gov/datasto...cticeGuide.pdf
I mean, yeah, but Bonta has reframed what the emergency is. I'll just do some quotes. So, in the opening on page 2 and 3, there's stay requests that were to be expected had they filed a normal motion for stay:
Quote:
The district court’s injunction is currently set to go into effect on July 4, 2021.
If this Court is not able to rule on this motion before that date, Defendants respectfully request that it grant an administrative stay to preserve the status quo while it considers the motion. In the event that a three-judge panel denies this motion, Defendants respectfully request that the panel grant an administrative stay to preserve the status quo until such time as Defendants have had an opportunity to seek further relief from the en banc Court or the Supreme Court.
So that's a multi-layered stay request with a bunch of contingencies to prevent the order from going live at all. This was to be expected, and could be filed in a normal motion. So why is it an emergency stay request? Justification is given that people might get assault weapons if they were denied, but here's the main part of it:
Quote:
Defendants respectfully request that the Court act on this motion by June 18, 2021, so that, in the event that a three-judge panel denies any stay, there is time for Defendants to seek further relief from the en banc Court or the Supreme Court in advance of the July 4 effective date set by the district court.
So the reason they're filing an Emergency Motion to Stay is because the 3-Judge Motions Panel might deny ALL OF THEIR REQUESTS for stay, including administrative stay and regular stay pending appeal resolution, so they need a decision by July 18th so if that SLIM chance does happen they have extra time to appeal the Motions Panel's decision en banc.

I'd hope the court would tell them that there's no emergency there.

Last edited by BeAuMaN; 06-11-2021 at 5:43 AM..
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  #2016  
Old 06-11-2021, 5:47 AM
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Quote:
... the status quo could be irrevocably altered by the influx of new assault weapons—weapons that could be difficult to remove from the State if this Court ultimately upholds the AWCA
Benitez described in the decision how the states own evidence shows featureless AR-15 are no different in firing than free state versions. I hope they read the decision before ruling.
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  #2017  
Old 06-11-2021, 6:13 AM
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I wonder how much time Bonta spends on the phone with Sidney Thomas. To think that they have no relationship of some sorts is denying the obvious. I bet that there is a lot more going on behind the scenes than most folks have a clue about. I bet those two socialist clowns wish the judge was still a prisoner in Cuba.
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  #2018  
Old 06-11-2021, 6:28 AM
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Bonta's emergency stay request is babbling nonsense. Which tells you how much they're pissing their shorts right now.
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  #2019  
Old 06-11-2021, 6:31 AM
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The emergency stay comically rebuts that COVID-19 vaccines are associated with deaths.
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  #2020  
Old 06-11-2021, 8:50 AM
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Quote:
Originally Posted by pacrat View Post
[/B]

au contraire



Moving the goalpost as you stated, in relation to the "definition" of AW. By the state constantly "redefining the parameters" of WHAT CONSTITUTES an AW. Is the very definition of SEMANTICS.
Touché
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AW Reg. will likely be reopened summer '21 to those who weren't able to register by 7/18. We don't know what that means for firearms made compliant when reg. failed or if they can or must be converted to AW configuration before registering. There's a moratorium on prosecutions for possession of AWs which were eligible for registration, but AWs acquired after 2016 can still be prosecuted!
Extremely important note: DON'T register anything acquired after 2016!!!
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  #2021  
Old 06-11-2021, 8:52 AM
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Originally Posted by rplaw View Post
Bonta's emergency stay request is babbling nonsense. Which tells you how much they're pissing their shorts right now.
And also his press conference with the governor, and the governor's press releases and social media posts... this is something they're clearly quite concerned about.

Now they know how we've been feeling for the last 30+ years.
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AW Reg. will likely be reopened summer '21 to those who weren't able to register by 7/18. We don't know what that means for firearms made compliant when reg. failed or if they can or must be converted to AW configuration before registering. There's a moratorium on prosecutions for possession of AWs which were eligible for registration, but AWs acquired after 2016 can still be prosecuted!
Extremely important note: DON'T register anything acquired after 2016!!!
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  #2022  
Old 06-11-2021, 9:09 AM
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Originally Posted by abinsinia View Post
Benitez described in the decision how the states own evidence shows featureless AR-15 are no different in firing than free state versions. I hope they read the decision before ruling.
100% this. Every line of their stay statement has already been addressed and shot down as BS.
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  #2023  
Old 06-11-2021, 10:52 AM
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From page 30 of the appeal,

Quote:
But the AWCA does not prohibit all “modern rifles,” or even all “AR-15[s].” Under California law, law-abiding adults may purchase and possess “featureless AR-15[s]” and other semiautomatic weapons that do not qualify as assault weapons under the AWCA’s definition. If the court instead meant that the AWCA prohibits “an entire class of very popular hardware” because it bars the specific weapons that qualify as “assault weapons” under the statute’s definition, that kind of reasoning is “circular”—it would mean that whatever group of weapons a regulation prohibits may be deemed a ‘class,’”
automatically subjecting the regulation to strict scrutiny.
(citations removed and emphasis added)

That piece of the appeal made me snort in my coffee - most of the state's arguments for any of their gun laws are circular in nature.
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  #2024  
Old 06-11-2021, 11:15 AM
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Respectfully, I think that line was a mistake. It is a charged subject that didn't need to be dragged into this discussion.

Additionally, it appears to be true, as the Attorney General pointed out in the Emergency Motion to Stay (page 15), that Benitez does not cite his evidence for that "fact". It was a bit of a throwaway line in the overall discussion that immediately preceded a long discussion rebutting the 2.2 shots-per-defensive-use argument. Regarding that statistic, Benitez says that "There is no way to check her analysis or her math or try to reproduce or falsify her results." (page 50) Yet, he appears to do the same thing with the vaccine argument. I tried to fact check that death rate this morning, and I not only came up empty, but I think he might have been intending to say "deaths from COVID by previously vaccinated people," not "More people have died from the Covid-19 vaccine..." as he did. Those are distinct from each other, but again, I can't check his source because he didn't cite it. He uses a good air bag analogy to make his point in the "2.2-shots" discussion...a similarly non-political non-controversial analogy might have been a better choice here.

I liked the Benitez opinion a lot, and although I'm far from a lawyer, I think this was an unnecessary gift to the AG.

Quote:
Originally Posted by HKAllTheThings View Post
Didn't realize until that video that Judge Benitez pulled the vaccine death equivalence thing.

You so crazy Beni

Last edited by TanHat; 06-11-2021 at 11:21 AM.. Reason: "non-political" was not the best way to say this
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  #2025  
Old 06-11-2021, 11:55 AM
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The Ninth Circuit has added this case to its cases of interest page
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  #2026  
Old 06-11-2021, 12:18 PM
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Originally Posted by TanHat View Post
I liked the Benitez opinion a lot, and although I'm far from a lawyer, I think this was an unnecessary gift to the AG.
Completely agree.
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  #2027  
Old 06-11-2021, 12:21 PM
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Originally Posted by TanHat View Post
Respectfully, I think that line was a mistake. It is a charged subject that didn't need to be dragged into this discussion.
I agree, I'd have preferred if he left that part out, but in the end I don't think it makes any difference. His opinion hardly rested on that statement.

And if the "other side" heavily focuses on just that part, then it'll only become more obvious that they don't have anything relevant to add to their own arguments.
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AW Reg. will likely be reopened summer '21 to those who weren't able to register by 7/18. We don't know what that means for firearms made compliant when reg. failed or if they can or must be converted to AW configuration before registering. There's a moratorium on prosecutions for possession of AWs which were eligible for registration, but AWs acquired after 2016 can still be prosecuted!
Extremely important note: DON'T register anything acquired after 2016!!!

Last edited by CandG; 06-11-2021 at 12:23 PM..
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  #2028  
Old 06-11-2021, 1:20 PM
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Originally Posted by live2suck View Post
From page 30 of the appeal,


(citations removed and emphasis added)

That piece of the appeal made me snort in my coffee - most of the state's arguments for any of their gun laws are circular in nature.
Because we can own featureless rifles, and because the AW definitions solely relate to features and not firepower or rate of power, how is that the AW laws are rational, much less constitutional?

It isn't. All Hail Benitez.
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  #2029  
Old 06-11-2021, 1:30 PM
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Quote:
Originally Posted by CandG View Post
I agree, I'd have preferred if he left that part out, but in the end I don't think it makes any difference. His opinion hardly rested on that statement.

And if the "other side" heavily focuses on just that part, then it'll only become more obvious that they don't have anything relevant to add to their own arguments.
I think you're right that it hardly rested on that statement. However, I can see a possible CA9 opinion highlighting that as an example of how Benitez erred (and ignoring all the good, solid stuff that supports his case). Many people on this forum will be able to tell that focusing on that point doesn't make a difference to Benitez's overall result, but it is possible that a CA9 majority, should they wish to write a ruling to overturn Benitez, would happily include that nugget to support their side.

I didn't have a problem with the swiss army knife analogy (two things can be alike in certain ways for the stated purposes of an analogy...they don't have to share all features), but if you were on the opposing (AG's) side, you'd certainly skim Benitez's opinion for the nail that sticks up. In this case, I just think the COVID/vaccine nail didn't have to be there in the first place.

I'm glad I'm not the only one who noticed the weirdness of it, and I do hope that I'm being too pessimistic about it's presence. Hopefully most people (especially CA9 judges) notice that the other side doesn't have anything relevant to add at this point, as you suggest.

Last edited by TanHat; 06-11-2021 at 1:43 PM.. Reason: possessive apostrophe
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  #2030  
Old 06-11-2021, 7:40 PM
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Posted on the twitter at 6pm tonight.
BREAKING: FPC Files Preliminary Opposition to California’s Motion to Stay Injunction in Miller “Assault Weapon” Lawsuit

https://www.firearmspolicy.org/fpc-f...tion-in-miller
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  #2031  
Old 06-11-2021, 7:47 PM
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APPELLEES’ PRELIMINARY OPPOSITION TO APPELLANTS’ EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 TO STAY JUDGMENT PENDING APPEAL

Quote:
Filed clerk order: The court has received appellants’ emergency motion for a stay pending appeal. The response to that motion is due by 9:00 a.m. Pacific Time on Tuesday, June 15, 2021. The optional reply in support of the motion is due by 9:00 a.m. Pacific Time on Wednesday, June 16, 2021. The existing briefing schedule remains in effect.
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  #2032  
Old 06-11-2021, 9:59 PM
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Quote:
Originally Posted by lastinline View Post
I wonder how much time Bonta spends on the phone with Sidney Thomas. To think that they have no relationship of some sorts is denying the obvious. I bet that there is a lot more going on behind the scenes than most folks have a clue about. I bet those two socialist clowns wish the judge was still a prisoner in Cuba.
No discussion is needed. Thomas knows exactly what he is expected to do and what is expected of him. There isn't a single time he hasn't given the State exactly what they want with respect to the 2A. He's a rubber stamp. All he (and the rest of the 9th) does is copy/paste the State's reasoning directly into a judgement. If needed, he'll actually fill in the blanks for the State or manufacture anything they need, such as standing. Like he did for them in Peruta.
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"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris

Lawyers and their Stockholm Syndrome

Last edited by curtisfong; 06-11-2021 at 10:05 PM..
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Old 06-11-2021, 10:03 PM
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Originally Posted by CandG View Post
It's not semantics. Anything that falls under the definition of "assault weapon" is banned, by every definition of the word, and very clearly spelled out in the Penal Code, leaving no room for interpretation.
I'm going to have to go to the gun safe and tell my registered assault weapons that they are banned. They won't be happy. I'll bring them some ammo to make them feel better afterwards.

By the way, it's interesting that you admit that there is a "definition of assault weapon". Usually gun people claim that the term is meaningless, was made up by evil politicians, and can't be defined.
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Old 06-11-2021, 10:07 PM
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Usually gun people claim that the term is meaningless, was made up by evil politicians, and can't be defined.
You again?



Spare us. Total nonsense.
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The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris

Lawyers and their Stockholm Syndrome
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Old 06-11-2021, 10:41 PM
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Yup, I have some of those in my gun safe too.

Here is a picture of a real assault weapon:
300px-Sturmgewehr44_noBG.jpg

Quote:
Originally Posted by curtisfong View Post
You again?
...
So, what you are probably trying to say with that picture is: There can not be a logically coherent definition of assault weapon, because both guns in that picture are identical, yet one of them is considered an assault weapon. On the other hand, above CandG said that there is a definition of assault weapon, even multiple definitions. So which is correct? Please figure that out among the two of you, then get back to me. Thank you.
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Old 06-11-2021, 10:46 PM
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I know I'm speaking to a lawyer when they think the law determines reality.

If the court made a definition for 1/0 it would not make it reality other than that is what they can force on me on threat of violence.

Bottom line, the definition is nonsense, because it attempts to define something that doesn't have a useful definition, like 1/0

BTW, neither of the firearms in my picture are assault weapons.

I stand by my statement. There is no rational definition for "assault weapon". It is a made up term that only has meaning in the language of law, and that language only cosmetically appears to be English. I don't care what lawyers tell me the courts say. I reject their delusional notion that their laws define reality.

"There are 4 lights".
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The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris

Lawyers and their Stockholm Syndrome

Last edited by curtisfong; 06-11-2021 at 11:00 PM..
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Old 06-11-2021, 10:51 PM
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Also, those are "assault rifles" not "assault weapons".

An "assault weapon", in English, means "a weapon used to assault", which doesn't even have to be a firearm.
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The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris

Lawyers and their Stockholm Syndrome
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Old 06-11-2021, 10:51 PM
HibikiR HibikiR is offline
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Quote:
Originally Posted by MountainLion View Post
Yup, I have some of those in my gun safe too.

Here is a picture of a real assault weapon rifle:
Attachment 1021447


So, what you are probably trying to say with that picture is: There can not be a logically coherent definition of assault weapon, because both guns in that picture are identical, yet one of them is considered an assault weapon. On the other hand, above CandG said that there is a definition of assault weapon, even multiple definitions. So which is correct? Please figure that out among the two of you, then get back to me. Thank you.
That's an assault rifle, a real term with real meaning.

Assault weapon is a term used by leftists to scare the masses because they can't notice the difference in the second word of that term.
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Old 06-11-2021, 10:54 PM
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Originally Posted by HibikiR View Post
That's an assault rifle, a real term with real meaning.

Assault weapon is a term used by leftists to scare the masses because they can't notice the difference in the second word of that term.
Next thing you know he'll claim that if the courts say a "well regulated militia" is one "subject to firearms regulations", then that's what it meant at the time of the writing of the 2A.

And who are we to argue, if the courts can throw us in jail if we disagree? After all, anyone who can imprison has the power to *literally* define reality (and even modify history), do they not?

No, there are *four* lights.

Lawyers: stick to being hired guns and doing what you're paid to do. People hate you when you fail to stay in your lane. Leave describing the laws of nature to mathematicians and physicists.
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The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris

Lawyers and their Stockholm Syndrome

Last edited by curtisfong; 06-11-2021 at 10:59 PM..
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Old 06-12-2021, 7:19 AM
splithoof splithoof is offline
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This is going back a few years, but it may be a source for the term:
https://images.app.goo.gl/Y65QKmFmyXRVgdPz8
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