Rammifications of Nordyke on Pena???

[IrishPirate]

you know, i can't afford to bring my own lawsuit against the state with my own ideas about how things should be fixed.....i also don't have the legal expertise to try such a case. That's why i don't question the people who do this stuff for a living and focus solely on 2A type cases. perhaps if the lead lawyer was a real estate attorney who had no working knowledge of the 2A, then i might be concerned. My only concern in this case is that the 9th will continue to say "yeah we know that the law is unconstitutional, but here's where we buck that whole thing and just do what we want anyways and hope it sticks because it flies under SCOTUS' radar for a while and the plaintiff drops the case."

other than that, i trust those who are actually involved and i don't see them bringing the case that they brought without knowledge of how it would affect the outcome.



the internet is a good place to rant and sound smart from time to time though....

[M. D. Van Norman]

[Bhobbs]

I think the only weakness to the roster is that you have to continually pay to keep the pistol on the roster. It is tax instead of a safety regulation of any kind.

[notme92069]

This is the roster case's only serious attempt to demonstrate a burden on self defense but the case makes false assertions that are easily disproven. Such as that the plaintiff "cannot operate" a glock with a right handed magazine release. Of course he can, he can just press the mag release with his thumb instead of his index finger. This is a basic part of the "one-handed shooting" portion of most handgun classes and is easily performed. The plaintiff's bigger problem is reloading the handgun once the mag is dropped and an ambi mag release isn't going to help with that. For the life of me I don't know why they are arguing that the right handed glock cannot be operated, it's not true at all. As for the other plaintiffs, all their declarations say is basically "I want this gun" or "I want that gun" with no attempt to demonstrate how their inability to purchase that gun is detrimental exercise of the right to keep and bear arms for self-defense. IMO this is the big failing of the roster lawsuit as currently alleged.

OK, how would YOU attack the roster? I seriously want to know. If you don't want to publish here for our anti friends, please feel free to PM me.

[FABIO GETS GOOSED!!!]

OK, how would YOU attack the roster? I seriously want to know. If you don't want to publish here for our anti friends, please feel free to PM me.

The first thing I would do is postpone it for another day. In the meantime selectively file more compelling cases in which you actually have "substantial burden" and which have a better chance of getting good results and articulating more useful heightened standards of review. And if that happens, then you can take a closer look at the roster and then file a complaint that actually tries to tailor the allegations to best fit the standard of review. The last Nordyke opinion unmistakably announced that burden on the exercise of the right to keep and bear arms for self defense (in the home) was the name of the game. The roster case was filed like a week or 2 later, with the argument framed not in terms of how the roster burdens the exercise of the right to keep and bear arms for self-defense in the home (which was the 9th circuit standard at the time), but with the weak arguments already discussed in this thread and with a "CA wants to ban all handguns" theme that does not jibe with reality, at least not reality perceived by the people who are going to be deciding these cases. There are also some sub-issues here that the case presents --e.g., regulation within a class of protected firearms, the notion of having "freedom of choice" of firearms similar to the exercise of other fundamental rights--that I think are likely to be resolved unfavorably, with negative implications for challenges to other regulations, and the limited upside is not work the risk.

[Serpentine]

Non-rostered handguns, SBR's, SBS's. etc., etc. are 'A-OK' for your police department officers that are 'exempt'.....but not for you.

This makes no sense, because if the LEO's prefer them, they must be superior weapons for self defense in the home.


.

[curtisfong]

"CA wants to ban all handguns"

The CA legislature wants to ban as much as it can get away with. That has always been apparent.

[kcbrown]

There is no chance whatsoever that the Supreme Court would endorse a statistical inquiry into whether a particular firearm such as a Glock with an ambi safety is "in common use" which is what Pena tries to do. Heller certainly didn't do that when it decided that handguns as an entire class of arm were in common use; it never even mentions the particular firearm at issue because it wasn't relevant to the inquiry it was making. The "in common use" inquiry was to decide whether handguns as a class of arms was protected and that has been decided already.

That is certainly a valid interpretation. However, I think there is some ambiguity here.

From Heller:

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

(emphasis mine)

The question is: what does "sorts of weapons" mean? Classes, as in rifles versus shotguns versus pistols? More specific configurations of weapons, e.g. select fire versus semi-automatic versus bolt action? More specific designs of weapons, e.g. AR-15 versus M1 Garand?

But anyway, the roster case doesn't cut it under a Nordyke burden analysis, and it doesn't cut it under the Heller-inspired statistical "in common use" argument that it tries to make.

If "sorts of weapons" refers only to entire classes (pistols, rifles, etc.) then I'm inclined to agree. If it can be successfully argued that it applies to models that happen to be in common use throughout the rest of the country, then the case may have some teeth. But someone is going to have to argue the latter, and I have no idea how the Supreme Court will view such an argument.

[kcbrown]

The first thing I would do is postpone it for another day. In the meantime selectively file more compelling cases in which you actually have "substantial burden" and which have a better chance of getting good results and articulating more useful heightened standards of review. And if that happens, then you can take a closer look at the roster and then file a complaint that actually tries to tailor the allegations to best fit the standard of review. The last Nordyke opinion unmistakably announced that burden on the exercise of the right to keep and bear arms for self defense (in the home) was the name of the game. The roster case was filed like a week or 2 later, with the argument framed not in terms of how the roster burdens the exercise of the right to keep and bear arms for self-defense in the home (which was the 9th circuit standard at the time), but with the weak arguments already discussed in this thread and with a "CA wants to ban all handguns" theme that does not jibe with reality, at least not reality perceived by the people who are going to be deciding these cases. There are also some sub-issues here that the case presents --e.g., regulation within a class of protected firearms, the notion of having "freedom of choice" of firearms similar to the exercise of other fundamental rights--that I think are likely to be resolved unfavorably, with negative implications for challenges to other regulations, and the limited upside is not work the risk.

But that approach means that you're tailoring your argument for the 9th Circuit. Is it not better to tailor it for the Supreme Court? If the 9th winds up disagreeing with you, then that's even better for you because your argument would be tailored to have the maximum effect at the Supreme Court (hence, biggest chance of winning), which would then have the effect of putting the 9th Circuit in their place should you win.

If you tailor your argument for the 9th Circuit, however, they could wind up agreeing with you, but you might lose at the Supreme Court, no? And that would surely be worse.

[Crom]

What a fascinating discussion we have here.

[navyinrwanda]

There is no chance whatsoever that the Supreme Court would endorse a statistical inquiry into whether a particular firearm such as a Glock with an ambi safety is "in common use" which is what Pena tries to do.

Maybe not a purely statistical inquiry. However, a comprehensive survey or compilation seems consistent with the language of Heller

But anyway, the roster case doesn't cut it under a Nordyke burden analysis, and it doesn't cut it under the Heller-inspired statistical "in common use" argument that it tries to make.

Nordyke

[gunn]

Me thinks the roster will fall. If D.C. didn't think it was worth fighting, I don't see how CA will be able to justify it.

For starters, we've got a $2B windfall in higher-than-expected tax receipts which means that a LOT of people are just looking for new ways to spend that money-we-shouldn't-have. I'd love for the roster to fall but I'm sure it will cost us the taxpayers serious $$$ as CA fights it.


-g

[FABIO GETS GOOSED!!!]

The question is: what does "sorts of weapons" mean? Classes, as in rifles versus shotguns versus pistols? More specific configurations of weapons, e.g. select fire versus semi-automatic versus bolt action? More specific designs of weapons, e.g. AR-15 versus M1 Garand?

There is a pretty good discussion of this in the DC Circuit Parker opinion. Heller talks only about "types" and "classes" of arms i.e. "the handgun." It did not undertake any statistical inquiry or fact finding into whether that class of firearm was in common use, never mentions any particular make and model of firearm, and its holding is informed by a historical understanding of the scope of the right (i.e. what types of small arms were citizens expected to bring when called for militia service). There is no suggestion that inclusion in a protected class immunizes a particular firearm from being regulated; arguments can be made and this will get fleshed out (in my opinion not favorably), but the roster case is not a good vehicle for it. One of the plaintiff's argument boils down to "I want a two-tone gun even though I can buy the mechanically and functionally identifcal firearm in black." If you're inclined to make the argument, you don't want to do it with facts like those.

[FABIO GETS GOOSED!!!]

Again, if the roster banned the commercial sale of a substantial portion of an entire class of otherwise protected firearms, wouldn't it be a substantial burden?

The key word here is "if" and we're not there. There is no ban on possession or use of rostered or non-rostered handguns, the roster does not burden anyone's exercise of the right to keep and bear arms for self-defense. Tons of functional, effective handguns on the roster. Weak argument for substantial burden.

Or if the manner of banning those firearms was demonstrably irrational (i.e., either served no valid purpose, or actually made firearms more dangerous, e.g. magazine disconnect), or if it was applied in a arbitrary and capricious manner that banned virtually every firearm in a class (e.g., chamber load indicator), then wouldn't wouldn't the roster fail?

Reasonable minds can certainly disagree on whether a mag disconnect makes a firearm more dangerous. If the threshold substantial burden is met, then there would be some form of heightened scrutiny and we might see those arguments being hashed out. Like I have said there are some vulnerabilities in the details of the implementation of the roster. But the substantial burden hurdle is significant and the plaintiffs' filings especially the cursory, conclusory declarations in support of the summary judgment motion are inadequate for the task. Ultimately, consumer protection and safety regulation are going to be validated. What I think we will also see is affirmation that unlike books, religions, etc., handguns are simply mechanical devices, fungible, and pretty much all do the same thing the same way. I don't see the courts being terribly concerned about the fact that you can't buy your preferred make, model and color choice of 1911 pistol. "Alternative channels"...the roster complaint already lays them out.

[kcbrown]

Maybe not a purely statistical inquiry. However, a comprehensive survey or compilation seems consistent with the language of Heller. Certainly if the number of individual firearms banned reached some threshold portion of an entire class it would become a “substantial burden” on the right, wouldn't it?

I wouldn't expect so, as long as the handguns that are on the roster are easily available and are capable of providing meaningful self-defense.

Remember, "burdening the right" means making it more difficult to actually exercise it. To exercise the right to keep and bear arms, you need to be able to easily acquire some kind of arm that is capable of providing meaningful self-defense. But beyond that, it becomes a question of just how much more difficult it is to acquire that arm.

And so, I am deeply skeptical that the roster will fall on the basis of infringement of the right to self-defense. There may be other ways to take it down, but I don't see how that particular avenue will work.