Miller v. Bonta 9th Ckt "assault weapons": Held for Duncan result 1-26-24

[SpudmanWP]

That language was included to ensure a court majority due to varying views on this issue, not necessarily because it is correct.

As Heller & Bruen stated, to understand the meaning of "infringe" within the context of the framing of the 2nd Amendment, you have to look at the History and Tradition of American firearms regulations. Those regulations are the basis of the "Dangerous and Unusual" citation in Miller and Heller. In other words, if a tradition of regulation existed before, during, or up until the 1860s then they obviously considered that regulation to comport with the 2nd.

[AlmostHeaven]

Seems to be the way of the courts these past years. Meanwhile we grow old and die off. At some point it is time to ignore all the BS that goes back and forth for decades, and do as you please. I think many reached that point some time ago.

Still, at least some of us need to keep up the lawfare so that future generations have even a fighting chance of retaining their God-given rights.

[riderr]

Still, at least some of us need to keep up the lawfare so that future generations have even a fighting chance of retaining their God-given rights.

The most interesting question of this week is which provisions of AW CADOJ won't try to save. E.g. in the roster case they gave up the microstamping. In the LCM case they decided not to argue the lawful pre-ban and the freedom week possession. I am curios which parts of AW law will fall off.

[morthrane]

As Heller & Bruen stated, to understand the meaning of "infringe" within the context of the framing of the 2nd Amendment, you have to look at the History and Tradition of American firearms regulations. Those regulations are the basis of the "Dangerous and Unusual" citation in Miller and Heller.

Since you've read Heller and all, I decided to look for myself again, as it has been some years.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." See 4 Blackstone 148-149 (1769)

I omitted the list after Blackstone, as it is quite extensive. But that 1st citation:

9. THE offense of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprisonment during the king's pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armor.

Now, I ain't no lawyer by any stretch of imagination. But I can't find a single reference to "dangerous and unusual weapons" in United States v. Miller. I see Miller v. Bonta discusses how SCOTUS in Heller used the phrase, and that California repeatedly refers to "dangerous [or] unusual" weapons just like Heller's Blackstone citation. As the decision says:

This Court assumes that the Supreme Court does not use language frivolously... that it says what it means and it means what it says. The "dangerous and unusual" test is the test that this Court will apply. If there is a different test, the Circuit or the Supreme Court will tell us, but for now, this Court applies the plain meaning of the language used in Heller.

Without going through the full citation list from Heller, I can only assume by appearance that "dangerous and unusual" is a bunch of malarky. Maybe I'm reading the wrong Blackstone, maybe I'm not educated enought to understand the legal theory and nuance, but nothing I've seen makes me think there's a plain meaning to be found here. I mean, what the ****ing **** is "unusual"? Who says? And since all weapons are dangerous, "unusual" is really the crux and the interpretive dance loophole that a semi truck could violate.

Which leads to...

In other words, if a tradition of regulation existed before, during, or up until the 1860s then they obviously considered that regulation to comport with the 2nd.

Show me what "dangerous and unusual" weapons have been banned entirely in the time period, not just outliers as touted by California DOJ and thoroughly skewered in Miller v. Bonta
Show me what "unusual" actually means.
Show me that you understand the irony of breathlessly invoking Bruen, and then bringing up 21st Century decisions to justify an interpretation of actual history and tradition in the 18th Century and before.

[tenemae]

The most interesting question of this week is which provisions of AW CADOJ won't try to save.

I think in the examples you provided, there were external issues with the sections the state "gave up". I.e, for microstamping, the state had a serious issue that microstamping wasn't really possible. It would be like passing a law requiring all new pistols to be made from diamond. It's a de-facto ban on new pistol designs being added to the roster.

For magazines, the state faced the complication that requiring dispossession of lawfully acquired property might run afoul of the takings clause of the 5th amendment. The state really didn't want to fight that battle, so it instead dropped it.

I can't identify any such complications with Miller. I don't think they'll be dropping any provisions from the fight.

[rplaw]

I am also not an attorney. My knowledge of legal stuff comes primarily from following case law, doing some case management, and for taking management actions in response to case law decisions. That gives me a pretty good idea as to how the law is practiced, but leaves a pretty big hole as to seeing how the law would apply in untested areas.

A "Writ of Mandamus" could be issued to a lower court, but I've never seen such a writ issued to a court. Judges tend to be very respectful of the prerogatives of other judges, and I have to think that it would take a very compelling showing for the Supreme Court to issue such a writ.

Currently we have an ongoing example of the necessary showing when the lower court disregards the rules in order to flaunt their authority and insubordination.

About the strongest action that the Supreme Court can take, and I've only seen it done once in a "last-minute" death penalty appeal, is for the Supreme Court to issue a decision that directs the lower court to take specific numbered actions (1,2,3..) regarding a case and to take no other actions without leave of the Supreme Court.

The SCOTUS has done this many times but people either forget or were too young to realize what was happening. My first time at truly understanding the supervisory powers of the SCOTUS was the Terri Schaivo case out of Florida. There are other examples out there of the high court directly commanding the lower courts to obey if one looks.

I also believe that the SCOTUS has the power to discipline and remove a lower court judge/justice. A judge/justice may only remain on the bench during times of "good behavior." Rebellion is not "good" behavior. Thus the question is whether the supervisory powers of the SCOTUS extend so far as to be able to discipline an inferior judge/justice by removing them or is that action reserved explicitly to Congress.

I would argue that the Constitution authorizes such powers and those powers are shared with Congress. Unless the court has the ability to discipline whenever ultimately necessary, it has no power to supervise and enforce its decisions. Without that power, the SCOTUS has no Constitutional purpose and such a lack defeats the point of its creation. Such an interpretation defies the logic of the Constitution and is counter to principles of construction.

[1911su16b870]

Just a personal opinion, but I agree with rplaw on how SCOTUS could possibly intervene in Miller as it is only the 9th circuit right now showing this blatant disregard of SCOTUS precedent and their decisions. SCOTUS is also long-suffering and allowing the court to come to their correct decision.

In a working system, the case should be appealed to a 3 judge panel, the panel is reviewing the procedures followed and not necessarily Judge Benetiz's decision on law (unless it is grossly inconsistent with the "supreme" law of the land. If found for plaintiffs at the 3 judge panel level, that should be the end of it, because the likelihood of success en-banc is not there.

[tacticalcity]

Unfortunately the Supreme Court has been something of a mixed bag when it comes to 2A cases. It is not a forgone conclusion they will uphold Benitez?s decision. It is just as likely they will punt on the case altogether. They?ve done that to us countless times before. I am cautiously optimistic at best. I have a fear I will be too old to go the range by the time this is resolved one way or the other. They love to stall.

[SpudmanWP]

Show me what "dangerous and unusual" weapons have been banned entirely in the time period, not just outliers as touted by California DOJ and thoroughly skewered in Miller v. Bonta
Show me what "unusual" actually means.

I wish I could as that is one of my frustrations.

The closest that a court has come to defining "unusual" was when in a concurring opinion in Caetano the Justice said that stunguns were in common use due to there being 200k of them. That is why you will see the 200k number used when saying an arm is in common use.

The "dangerous" part of that is a pet peeve of mine. Since all weapons can cause harm, they are by definition 'dangerous' so IMHO there must be more meaning to it. It would be like saying "cold ice", it's duplicative.

[Bhobbs]

I don't buy the M2 being dangerous or unusual in the context of national defense.

Mustard gas, bio weapons or nuclear weapons? Sure. Chemical and biological weapons are generally not accepted anymore, so I think that's a solid line to draw.

Heavy machine guns? No.

[rplaw]

I wish I could as that is one of my frustrations.

The closest that a court has come to defining "unusual" was when in a concurring opinion in Caetano the Justice said that stunguns were in common use due to there being 200k of them. That is why you will see the 200k number used when saying an arm is in common use.

The "dangerous" part of that is a pet peeve of mine. Since all weapons can cause harm, they are by definition 'dangerous' so IMHO there must be more meaning to it. It would be like saying "cold ice", it's duplicative.

Dangerous in the D&U universe is something which by it's mere presence creates a risk of harm which cannot be mitigated with ordinary caution.

This could include chemicals which can self ignite under certain conditions for instance.

[abinsinia]

Here is the Emergency Stay request. No CourtListener page yet.
https://assets.nationbuilder.com/fir...on_to_Stay.pdf

The emergency stay request was posted in another thread. Just re-posting here .

[M-Dog]

noob question here.... where can one track the status of the case right now? The court listener link for Miller (https://www.courtlistener.com/docket...&order_by=desc) stops after Benitez's decision filing.

I'm probably doing something wrong on CourtListener, and would appreciate a nudge to where we could look for updates as to what the 3-judge panel decides re: the stay in the next few days

[SpudmanWP]

If the Stay gets added to the previous 9th Miller appeal thread, then you can find it here:

https://www.courtlistener.com/docket/59975685/james-miller-v-rob-bonta

If it gets a new page, I'll post it when I know it.

[M-Dog]

thank you