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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #41  
Old 04-11-2019, 2:06 PM
DASchell DASchell is offline
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Quote:
Originally Posted by rm1911 View Post
He lays out an outstanding argument that clearly leaves no wiggle room.

Then issues a stay.

What a douche.


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HE ISSUED A STAY TO PROTECT THOSE OF US WHO PURCHASED Magazines last week. Much better he do it allowing us to possess the ones we bought than some 9th circus libatard issuing a stay that throws everyone who even thought about buying a magazine last week in jail for being a disruptive non-productive member of Utopia!
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  #42  
Old 04-11-2019, 2:23 PM
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Judge Benitez's 86-page opinion is a must read for anyone who value the 2A.

It is so encouraging that we have constitutionalists on our US judiciary.
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  #43  
Old 04-22-2019, 10:39 PM
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bump cause awesomeness
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  #44  
Old 04-23-2019, 6:05 AM
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To the complexity of our gun control laws.

"It is enough to make an angel swear."

But there are other jurisdictions with magazine capacity limits to support banning them:

"An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity."

But we need gun-control solutions:

"Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights
as bad policy."

But standard capacity magazines are not in common use and can be banned:

"Saying that large capacity 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."

But laws banning standard capacity magazines are on the books and therefore valid.

"A law’s existence can’t be the source of its own constitutional validity."

But there are no constitutional principles involved here:

"This conclusion should not be considered groundbreaking. It is simply a straightforward application of constitutional law
to an experimental governmental overreach that goes far beyond traditional boundaries of reasonable gun regulation."

Maybe taking a small poke at Pena here that the burden is minor because there are other choices.

"But describing as minor, the burden on responsible, law abiding citizens who may not possess a 15 round magazine for
self defense because there are other arms permitted with 10 or fewer rounds, is like saying that when government closes
a Mormon church it is a minor burden because next door there is a Baptist church or a Hindu temple. Indeed, Heller
itself rejected this mo de of reasoning: It is no answer to say, as petitioners do, that it is permissible to ban the
possession of handguns so long as the possession of other firearms ( i.e., long guns) is allowed."

A little push back to the 9th on their Tripartite Binary Test with a Sliding Scale and a Reasonable Fit.

"It is an overly complex analysis that people of ordinary intelligence cannot be expected to understand. It is the
wrong standard. But the statute fails anyhow."

But judge Benitez is being too harsh! The California Attorney General AG states a softer evidence approach is all that is required.

"When considering whether to approve a state experiment that has, and will, irrevocably harm law-abiding responsible
citizens who want for lawful purposes to have common firearms and common magazines that hold more than 10 rounds,
this Court declines to rely on anything beyond hard facts and reasonable inferences drawn from convincing analysis
amounting to substantial evidence based on relevant and accurate data sets."

"Where did this idea come from, the idea that a court is required to fully credit evidence only reasonably believed to
be relevant?"

But the State contends it about public safety and there is no constitutional issue here.

"The Government’s proposed prophylaxis to protect against the violations of the few, we must burden the constitutional
rights of the many turns the Second Amendment on its head."

"Even Turner does not expect a judicial milquetoast naivete, but a muscular meaningful review and independent judgment
of the facts."
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  #45  
Old 10-15-2019, 9:01 PM
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Bump

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  #46  
Old 10-15-2019, 9:26 PM
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Quote:
Originally Posted by Redeyedrider View Post
In this case, the Attorney General identifies four State interests or objectives. Each is important. The State interests are: (1) protecting citizens from gun violence; (2) protecting law enforcement from gun violence; (3) protecting the public safety (which is like protecting citizens and law enforcement from gun violence); and (4) preventing crime. See Oppo. at 9; 17-18. The question then becomes, whether § 32310’s ban on acquisition and possession of firearm magazines holding more than 10 rounds is are a reasonable fit for achieving these important goals. This Court finds on the evidentiary record before it that §32310—the prohibition on magazines able to hold more than 10 rounds and the acquisition-possession-criminalization components of §32310—is not a reasonable fit.

---------------------------------

When considering whether to approve a state experiment that has,and will,irrevocably harm law-abiding responsible citizens who want for lawful purposes to have common firearms and common magazines that hold more than 10 rounds, this Court declines to rely on anything beyond hard facts and reasonable inferences drawn from convincing analysis amounting to substantial evidence based on relevant and accurate data sets.

----------------------------------

The State’s theoretical and empirical evidence is not persuasive. Why 10 rounds as a limit? The State has no answer.

---------------------------------------

On this evidence, § 32310 is not a reasonable fit. It hardly fits at all. It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the Constitutional rights of many other California law-abiding responsible citizen-owners of gun magazines holding more than 10 rounds

-----------------------------------

The only effect of § 32310 is to make criminals of California’s 39 million law-abiding citizens who want to have ready for their self-defense a firearm with more than 10 rounds.

------------------------------------

This is federal court. The Attorney General has submitted two unofficial surveys to prove mass shootings are a problem made worse by firearm magazines holding more than 10 rounds. Do the surveys pass the Federal Rule of Evidence Rule 403 test for relevance? Yes. Are the surveys admissible under Federal Rule of Evidence Rule 802? No. They are double or triple hearsay. No foundation has been laid. No authentication attempted. Are they reliable? No. Are they anything more than a selected compilation of news articles –articles which are themselves inadmissible? No. Are the compilers likely to be biased? Yes.

----------------------------------

Where are the actual police investigation reports? The Attorney General, California’s top law enforcement officer, has not submitteda single official police report of a shooting.Instead,the Attorney General relies on news articles and interest group surveys.

-----------------------------------

Obeisance to Heller and the Second Amendment is offered and then given Emeritusstatus, all while its strength is being sapped from a lack of exercise.

----------------------------------

This case is about a muscular constitutional right and whether a state can impinge and imprison its citizens for exercising that right.

----------------------------------

Strictly put, this case in not solely about legislative judgments because § 32310(c) and (d) are the products of a ballot proposition. No federal court has deferred to the terms of a state ballot proposition where the proposition trenches on a federal constitutional right.

-------------------------------------

The 2016 amendments to §32310 were added by ballot measure and are owed no legislative deference by this Court. The remaining part of §32310 is the product of ordinary legislation. Impinging on a federal constitutional right as it does, it is not insulated from meaningful judicial review.

----------------------------------

This kind of government experimentation, the Second Amendment flatly prohibits.

-----------------------------------

Congress tried for a decade the nationwide experiment of prohibiting large capacity magazines. It failed. California has continued the failed experiment for another decade and now suggests that it may continue to do so ad infinitum without demonstrating success. That makes no sense.

---------------

Imagine the crimes that could be solved without the Fourth Amendment. The state could search for evidence of a crime anywhere on a whim. Without the First Amendment, the state could better police the internet. The state could protect its citizens from child pornography, sex trafficking,and radical terrorists. The state could limit internet use by its law-abiding citizens to, say, 10 hours a day or 10 websites a day. Perhaps it could put an end to Facebook cyberbullying.

---------------

The bludgeon swings to knock large capacity magazines out of the hands of criminals. If the bludgeon does not work, then the criminals still clinging to their large capacity magazines will be thrown in jail while the magazines are destroyed as a public nuisance. The problem is the bludgeon indiscriminately hammers all that is in its path. Here, it also hammers magazines out of the hands of long timelaw-abiding citizens. It hammers the 15–round magazine as well as the 100–round drum. And it throws the law-abiding, self-defending citizen who continues to possess a magazine able to hold more than 10 rounds into the same jail cell as the criminal.

--------------

Gun violence to carry out crime is horrendous and should be condemned by alland punished harshly. Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim.

---------------

The “fit” of § 32310 is, at best, ungainly and very loose. That is all that it takes to conclude that the statute is unconstitutional. The fit is like that of a father’s long raincoat on a little girl for Halloween. The problem of mass shootings is very small. The state’s “solution” is a triple extra-large and its untailored drape covers all the law-abiding and responsible of its 39 million citizens.

----------------

A reasonable fit to protect citizens and law enforcement from gun violence and crime, in a state with numerous military bases and service men and service women, would surely permit the honorably discharged member of the U.S. Armed Forces who has lawfully maintained a magazine holding more than 10 rounds for more than twenty years to continue to keep and use his or her magazine. These citizens are perhaps the best among us. They have volunteered to serve and have served and sacrificed to protect our country. They have been specially trained to expertly use firearms in a conflict. They have proven their good citizenship by years of lawfully keeping firearms as civilians. What possibly better citizen candidates to protect the public against violent gun-toting criminals.

-------------

Similarly, a reasonable fit would surely make an exception for a Department of Justice-vetted, privately-trained,citizen to whom the local sheriff has granted a permit to carry a concealed weapon, and who owns a weapon with a magazine holding more than 10 rounds. California’s statute does not except such proven, law-abiding, trustworthy, gun-owning individuals. Quite the opposite.

-------------

Ten years of a federal ban on large-capacity magazinesdid not stop mass shootings nationally. Twenty years of a California ban on large capacity magazines have not stopped mass shootings in California. Section 32310 is a failed policy experiment that has not achieved its goal.

--------------

Perhaps the irony of § 32310 escapes notice. The reason for the adoption of the Second Amendment was to protect the citizens of the new nation from the power of an oppressive state.

----------------

Because large capacity magazines lack identifying marks, law enforcement officers are not able to tell the difference between grandfathered magazines and more recently smuggled,or manufactured,illegal magazines.

---------------

Lawful arms do not become unprotected merely because they resemble unlawful arms.

------------------

The Government’s proposed prophylaxis –to protect against the violations of the few, we must burden the constitutional rights of the many –turns the Second Amendment on its head.

------------------

The State relies on expert witness, Professor Louis Klarevas. Professor Klarevas says that banning large capacity magazines will reduce violence and force shooters to take a critical pause. SeeDX-3. However, in a piece by Professor Klarevas dated 2011, he offers that the Tucson shooting would have likely still happened with a ban on high capacity magazines.

-----------------

What’s more, a person set on inflicting mass casualties will get around any clip prohibitions by having additional clips on his person........ or by carrying more than one fully loaded weapon.

----------------

It is the fact that they are commonly-possessed by these citizens for lawful purposes that places them directly beneaththe umbrella of the Second Amendment.

----------------

There is no convincing evidence that magazines holding more than 10 rounds are not characteristically used to protect one’s home. The large numbers in circulation and human nature suggests otherwise.

---------------

The right to bear arms enables one to possess not only the means to defend oneself but also the self-confidence—and psychic comfort—that comes with knowing one could protect oneself if necessary.

----------------

Even safer may be a large capacity magazine on an AR-15 type of rifle as it is likely to be more persuasive when brandished at criminal assailants than would a five-shot revolver.

----------------

the State has not identified one incident where a bystander was hurt from a citizen’s defensive gun use.

-----------------

The State argues that large-capacity magazines are disproportionately used against police, citing an undated, unsigned, document created by an organization named the Violence Policy Center... The document says nothing about violence against police.

---------------

In other words, the re-loading “pause” the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are disabled, or who have arthritis, or who are trying to hold a phone in their off-hand while attempting to call for police help. The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack

-----------------

So, how did California arrive at the notion that any firearm magazine size greater than a 10-round magazine is unacceptable? It appears to be an arbitrary judgment.

----------------

Second Amendment rights do not depend on how often the magazines are used. Indeed, the standard is whether the prohibited magazines are ‘typically possessed by law-abiding citizens for lawful purposes.

------------

This Court’s judgment is no longer preliminary. If this judgment is appealed, the Court of Appeals will have the opportunity to rule on the merits, for the first time.

------------

The State has not carried its burden to justify the restrictions on firearm magazines protected by the Second Amendmentbased on the undisputed material facts in evidence.

------------

To borrow a phrase, “[j]ust as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, [and] . . . the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive,” it is the proudest boast of our Second Amendment jurisprudence that we protect a citizen’s right to keep and bear arms that are dangerous and formidable.
Your posts are ALL great reads
Thank you!
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  #47  
Old 11-03-2019, 12:17 PM
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Your presentation of the subject is extremely well done! Kudo's to you.
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  #48  
Old 11-05-2019, 8:34 AM
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This thread delivered. Thanks OP!
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  #49  
Old 11-05-2019, 10:10 AM
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So when does the ban actually get overturned?
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  #50  
Old 11-05-2019, 10:21 AM
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It's under appeal by the state attorney general.

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  #51  
Old 11-05-2019, 2:28 PM
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Great read. But....

I fear there are way to many in the .GOV that would like to implement this.

" Imagine the crimes that could be solved without the Fourth Amendment. The state could search for evidence of a crime anywhere on a whim. Without the First Amendment, the state could better police the internet. The state could protect its citizens from child pornography, sex trafficking,and radical terrorists. The state could limit internet use by its law-abiding citizens to, say, 10 hours a day or 10 websites a day. Perhaps it could put an end to Facebook cyberbullying."
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  #52  
Old 11-05-2019, 2:40 PM
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How long is this going to be in appeal? I got some new guns since freedom week that need freedom mags...
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  #53  
Old 11-05-2019, 3:08 PM
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How long is this going to be in appeal? I got some new guns since freedom week that need freedom mags...
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  #54  
Old 11-08-2019, 6:16 PM
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Originally Posted by Redeyedrider View Post
--------------------------------------

To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity 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 F.3d 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 that it isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”)

--------------------------------------------
If I had to pick one of these gems as being most important, this is my favorite and I hope this principle gets firmly established by SCOTUS ASAP.

It plugs one of the glaring, non-nonsensical holes in Heller, that give deference to "long standing prohibitions" and seemingly defends only arms "in common use" both of which seem to stand for the proposition that if the government can infringe on your constitutional rights for long enough, they vanish like a fart in the wind.
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Last edited by MajorCaliber; 11-08-2019 at 7:38 PM.. Reason: typo
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  #55  
Old 01-05-2020, 5:44 PM
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Quote:
Originally Posted by hunterb View Post
How long is this going to be in appeal? I got some new guns since freedom week that need freedom mags...
Just use the mags you bought ahead of time for your planned purchase
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  #56  
Old 01-17-2020, 6:57 PM
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Quote:
Originally Posted by MajorCaliber View Post
If I had to pick one of these gems as being most important, this is my favorite and I hope this principle gets firmly established by SCOTUS ASAP.

It plugs one of the glaring, non-nonsensical holes in Heller, that give deference to "long standing prohibitions" and seemingly defends only arms "in common use" both of which seem to stand for the proposition that if the government can infringe on your constitutional rights for long enough, they vanish like a fart in the wind.
Agreed...and the same logic would apply to a myriad of other cases in the works.
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  #57  
Old 01-18-2020, 10:42 AM
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They might, I can't predict the future. Buy I have some doubts they will be able to dismantle too many of the solid arguments that the Judge put into his ruling.

I'm glad he had the patience to put both his intelligence and his passion into such a fine document.
It will be upheld here and placed into the pile of cases awaiting he cowardly SCOTUS to resolve. Do laws really matter when a governor can declare by fiat that laws are not to be followed? That's what Gov. Black Face just did. His corrupt judges are standing by "laws made on the fly".

Respecting laws here seems a bit dated when so many break them and get off. The ATF is corrupt. The FBI and DOJ are corrupt. The IRS is corrupt.
And they want our respect for the law? Maybe after they give it some first.

I live by their example. I'm being told here that crime is not really crime and the ends justifies the means. Message received.
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  #58  
Old 01-18-2020, 11:03 AM
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It will be upheld here and placed into the pile of cases awaiting he cowardly SCOTUS to resolve. Do laws really matter when a governor can declare by fiat that laws are not to be followed? That's what Gov. Black Face just did. His corrupt judges are standing by "laws made on the fly".

Respecting laws here seems a bit dated when so many break them and get off. The ATF is corrupt. The FBI and DOJ are corrupt. The IRS is corrupt.
And they want our respect for the law? Maybe after they give it some first.

I live by their example. I'm being told here that crime is not really crime and the ends justifies the means. Message received.
The big difference is that the "leadership" break laws with impunity, and create laws that blatantly contradict the Bill of Rights and the very idea of individual liberty. They do this, and not only does nothing happen, they richly reward themselves. If you break laws, however, you will pay very dearly.
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