Duncan v Bonta: second trip to the 9th Circus

[SpudmanWP]

CourtListener page for the 9th Circuit's 2nd time with the case:

https://www.courtlistener.com/docket/67826263/virginia-duncan-v-rob-bonta

CL page for Judge Benitez's ruling (both 1st and 2nd time):

https://www.courtlistener.com/docket/6082773/duncan-v-becerra/

Status as of 11/25/2023:

Tue., November 21, 2023
Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1.

Thu., December 21, 2023
Appellees' answering brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1.

En banc oral argument will take place during the week of March 18, 2024, in
San Francisco, California.

[SpudmanWP]

Magazines holding more than 10 rounds are in common use. You don't need THT.

IMHO Duncan is walking a fine line between a ban and a regulation, hence the need for the THT test. They are not banning detachable mags, only regulating how many rounds they can hold. I can own an LCM, but I would have to put a limiter in it.

Think of it another way, if CA regulated rifles that had collapsable stocks, it would not be a simple ICU (In Common Use) test but a THT evaluation, which they would lose.

Many States know they will lose which is why you see so many of them claim that magazines are not "arms" for purposes of the THT test and therefore do not even pass the "plain text" stage.

[SpudmanWP]

Per the schedule of Nov 21st, here is the Appellant's Opening Brief (ie the State, ie Bonta).

https://storage.courtlistener.com/recap/gov.uscourts.ca9.345123/gov.uscourts.ca9.345123.14.1.pdf

[Drivedabizness]

IMHO Duncan is walking a fine line between a ban and a regulation, hence the need for the THT test. They are not banning detachable mags, only regulating how many rounds they can hold. I can own an LCM, but I would have to put a limiter in it.

Think of it another way, if CA regulated rifles that had collapsable stocks, it would not be a simple ICU (In Common Use) test but a THT evaluation, which they would lose.

Many States know they will lose which is why you see so many of them claim that magazines are not "arms" for purposes of the THT test and therefore do not even pass the "plain text" stage.

LCM's are actually Standard Capacity and in common use everywhere recalcitrant public servants don't insist on infringing. LEO's and criminals both carry standard cap mags. "Only regulating how many rounds" they can hold when used by law abiding citizens is a non-starter under binding precedent.

[AlmostHeaven]

Judge Benitez decided Duncan v. Bonta a month before Miller v. Bonta, yet the Ninth Circuit en banc panel has scheduled the large-capacity magazine ban oral arguments two entire months later than the 3-judge panel has set the assault weapons ban challenge.

The partisan hacks on the en banc panel will leave no stone unturned in their quest to assist the tyrannical civilian disarmament agenda.

[SpudmanWP]

The 3-Judge panel was given an order to expedite the Miller appeal from the motions panel, the Duncan appeal had no such order attatched.

[SpudmanWP]

LCM's are actually ...

Detachable magazines do not have a historical dividing line that separates one class from another. Their capacities range greatly from one arm to another, stock vs aftermarket, and even from one caliber to another. This is why it's not a "ban" case that falls under "In Common Use", but a "regulation on capacity" that falls under a THT test, which the State will fail.

[Drivedabizness]

Whatever. Sometimes us unwashed, but genius smart, productive and able to discern masses feel the need to remind the "educated" that words have meaning. And not just because Justice Scalia told us so. There is NO historical basis or foundation in law, for what the State is trying to do. Period.

[SpudmanWP]

On that, I absolutely agree.

[Bhobbs]

It is a ban. You can’t buy, sell, trade, manufacture or possess them. Though the possession part is enjoined.


Either way, under common use or THT, the ban fails. If the court system wasn’t broken, there would be a summary judgment to toss the ban.

[SpudmanWP]

I don't think there was an SJ phase because mag limits are not a well-litigated area of law.

Remember that SJs are issues before there is ever a trial so everything has to just come from the briefs.

Under Rule 56, in order to succeed in a motion for summary judgment, a movant must show 1) that there is no genuine dispute as to any material fact, and 2) that the movant is entitled to judgment as a matter of law.

Remember too that in an SJ "tie goes to the opponent".

When considering a motion for summary judgment, a judge will view all evidence in the light most favorable to the movant's opponent.

Basically, SJs are used when the laws and principles at issue are well-established.. If someone today tried to ban handguns or reestablish "may issue", those would likely get tossed at the SJ stage as Heller and Bruen addressed each of these directly.

https://www.law.cornell.edu/wex/summary_judgment

[Rickybillegas]

The whole thing makes little sense to me for the state to justify millions $$$ to fight this. The logic I suppose is that we (law abiding) are going to shoot up a place with LCM, when a well trained shooter can change mags very fast.
I think in a heated fire fight, a LCM is definitely an advantage, but not for a crazed shooter in a 'no gun zone'.
And where I live criminals have LCM anyway. Our local crime reports often show warrant seized firearms from gangs and other felons with LCM's. Some of them are ridiculously long. Who do they think they're kidding?

[AlmostHeaven]

Democrats do not care about the logic of any individual piece of legislation. They have their sights set on the ultimate goal of civilian disarmament, and any political or legal move that shifts the status quo towards that direction qualifies as a net good.

[Bhobbs]

I don't think there was an SJ phase because mag limits are not a well-litigated area of law.

Remember that SJs are issues before there is ever a trial so everything has to just come from the briefs.



Remember too that in an SJ "tie goes to the opponent".



Basically, SJs are used when the laws and principles at issue are well-established.. If someone today tried to ban handguns or reestablish "may issue", those would likely get tossed at the SJ stage as Heller and Bruen addressed each of these directly.

https://www.law.cornell.edu/wex/summary_judgment

What genuine dispute is there? Duncan wins under Heller and Bruen. The state failed to demonstrate a single valid analogue for mag capacity.

[SpudmanWP]

What genuine dispute is there? Duncan wins under Heller and Bruen. The state failed to demonstrate a single valid analogue for mag capacity.

Remember that at the SJ phase, any ambiguity has to go to the opponent, ie the State. There are too many open questions that will obviously go pro-2A in a proper THT test but are at a point now where they are not "settled" enough to apply in a SJ.