9th circuit sends CA AW ban case ( Miller v Bointa ) back down to lower court .

[Aguila Blanca]

From the state's brief:

As explained in Defendant’s supplemental briefing, however, nothing in Penal Code section 30515 prevents Californians from acquiring or possessing any bearable arms, including AR-platform rifles, so long as they are not semiautomatic centerfire rifles, semiautomatic pistols, or shotguns equipped with any of the qualifying combat-oriented accessories, or are not semiautomatic centerfire rifles less than 30 inches in length (which can be accomplished by equipping a firearm with either a shortened barrel, a collapsible stock, or both).

Translation: In California, it's completely legal to own an AR-15 rifle as long as it doesn't have any of the things that AR-15 rifles have, doesn't work like AR-15 rifles work, and doesn't use the ammunition that AR-15 rifles use.

[Metal god]

Yep , they even point out that “featureless” AR rifles are exceptable . I chose to go featureless instead of registering my AR as a AW . The biggest drag of featureless is no pistol grip . You need a flange or other that blocks the ability to wrap your thumb around the grip . Often referred to as a fin grip . The fixed stock sucks to but less an issue then the grip . First off I can no longer reach the safety with my thumb as intended . You need to take your forward hand off the rifle to put rifle on safe .

My fin grip is different then most on the market . I have this extra ledge/step that allows for a thumb rest and actually allows for a good-ish purchase on the rifle with one hand , with out it it's very hard to hold it with one hand to put the rifle on safe . Regardless I still can't reach the safety as intended .

[Metal god]

I've been trying to think of a similar law that hypothetically might have been written at the founding of the 2nd . Like - you can have a canon but can't put wheels on it to allow it to be moveable ?? Since the wheel is an accessory and not a required part for the canon to function they can be regulated ????

How many others can we think of that can be regulated or banned ? FWIW they are saying the same thing about magazines in the mag limit case .

Scopes/optics ?
Slings ?
cases ?

[44 AMP]

The Second Amendment does not say the citizen's right to keep and bear those arms the government approves, in the configuration the government approves shall not be infringed.

Unfortunately, it also does not say the citizen's right to keep and bear any arms as they chose shall not be infringed, either.

What's a poor judge to do? No matter which way they rule there will be a lot of people mad about it. Maybe they can kick it around from court to court until they retire, and then its someone else's problem?
(note: the sarcasm is intentional)

[Metal god]

Unfortunately, it also does not say the citizen's right to keep and bear any arms as they chose shall not be infringed, either.

Correct and is often where the dangerous and unusual part comes in . I think the danger part is a given but those accessories are far from unusual. Furthermore there is very little of history or tradition regulating firearm accessories .

Regardless I believe the 9th circuit will fall hook line and sinker for this logic . They will first delay as long as possible any opinion and the SCOTUS will be asked to hear this case again in about 2 or 3 years .

[44 AMP]

Correct and is often where the dangerous and unusual part comes in .

The "dangerous and unusual" language is a court opinion. NOT written in the
Constitution. It is used as the basis for some laws and supporting them, because it is a court opinion, but being what it is, it is not unalterable despite how much time passes before the court changes its opinion, IF it does.

The basic problem I have the the logic of "dangerous and unusual" is that everything is dangerous in the wrong hands, and completely safe in the right ones. The actual mechanism of the arm doesn't change the user intent. And. "unusual" is simply a measure of popularity. Actual machine guns are "unusual" because they are rare, and they are rare because the govt made them hightly restricted and expensive in 1934 and very few people have bothered with the hassle and costs in order to have one.

Its really circular reasoning. "we can regulate them because they are "unusual" when the truth is that they are unusual because they are regulated already, and have been for a long time.

[Metal god]

Hearing scheduled for today at 10:30 for a motion to intervene . I’ll be in the courtroom today and will report after .

[Metal god]

Judge wants with in 30 days the state to produce a spread sheet in chronological order of all gun laws that restricted , banned arms since the founding to 20 years after the 14th amendment . He even laughed while saying I'm going to give you an arbitrary number of 20yrs after the 14th amendment . Likely because he said the 10rd mag limit was an arbitrary number the state came up with when he originally ruled on that case . The state argued that they should be able to include the 20th century laws as well and the judge said no at first but then aloud them to submit a separate spreadsheet from 1888 to present but stated he does not anticipate it having any relevance . The state used a small paragraph in the Bruen case as there legal reasoning for the 20th century laws being relevant . Sorry don't remember the exact quote but it was something like - the text and tradition of the 20th century is relevant only if it does not conflict with the founding through the 14th amendment time period .

He also wants in that same spread sheet what each of those laws specifically ordered , if they were ever repealed , if so why and if any where challenged in court and what the outcome if any was in each and every case .

Both side will then have an additional 30 days to file briefs regarding there opinions on said spread sheet .

Both side will then have 10 days to file briefs apposing each sides opinion on the spread sheet .

The state did ask for an additional 90 days for experts to submit history and text briefs which he denied outright stating the states own experts have admitted in 2017 that they had been researching the text and traditions of the second amendment for 20 years . Tack another 5 years to that to bring it to the present and the states own experts in this case have been studying the text and tradition aspects of the second amendment for a 1/4 century . The Judges said that's plenty of research time and that 90 more days was not needed .

Anyways there was actually a lot going on with all 4 cases being co-mingled and it was hard to keep track . I made a huge mistake in not bringing a note pad . I wrongly thought I could take notes on my phone which I quickly found out the hard way I COULD NOT !

I'll likely remember more as we talk about this

[armoredman]

Hmm, wouldn't that extra 20 years allow the inclusion of all the Jim Crow style gun laws in the South after the war?
This will be very interesting.

[Metal god]

Hmm, wouldn't that extra 20 years allow the inclusion of all the Jim Crow style gun laws in the South after the war?
This will be very interesting.

Yes but he also wants to know what happened to said laws and if they were repealed or challenged. If so , why and what was the ultimate outcome . So sure they not only must include them they will also need to show how they were ultimately repealed or found unconstitutional. Strengthening our argument that there is not text and history of said laws .

Meaning just because there was a law banning x doesn’t mean the US has a history of banning x if said ban was shortly repealed or found unconstitutional.

[armoredman]

Good thinking.

[44 AMP]

Just out of curiosity, is the judge requiring a history of ALL US gun control laws within the stated time frame, or just CA laws??

[Metal god]

He was not clear on that and the question was not specifically asked by either side and that was 11 different lawyers standing there . We are still waiting on the formal order .

Right at the end both the plaintiffs and the state asked if the judge was going to give a formal written order . He turned to both with quite the annoyed look on his face and asked/stated "you did not take notes" ? They all said that they summarized what he was asking at which point the judge lowered his head and shook it , looked up and said I’ll see what I can do . So who knows if he actually writes an order on this .

This whole spreadsheet ideas was on the fly and was nailed down over the 2hr hearing . My guess is that his staff needs to go through the transcript to be sure what was all agreed upon then write a draft for the judge to approve. There’s going to be a lot of nuance to this order so it may take a couple days .

[Metal god]

Monday was especially interesting to me with all the cases being lumped together. I was literally on the edge of my seat a few times . When the state wanted to include the 20th century in the spreadsheet and the judge just sat there leaned back in his chair head pressed back against the head rest eyes closed thinking about it for what seemed like several minutes but really maybe 20 or 30sec . The court room was dead silent with all eyes on him . What a moment , because his answer could sink them in a second and yet he let them submit a separate brief on the 20th century. That may be the first time I truly realized how much power a judge has as we all sat there in anticipation of what he will say next . I’m guessing although some feel we had a good day . I bet dollars to donuts the state felt they got a big win on that one . At least now they will have the 20th century on record with ALL it’s still standing gun laws and restrictions .

[44 AMP]

The state used a small paragraph in the Bruen case as there legal reasoning for the 20th century laws being relevant . Sorry don't remember the exact quote but it was something like - the text and tradition of the 20th century is relevant only if it does not conflict with the founding through the 14th amendment time period .

This seems like a pretty shrewd and reasonable argument to include the 20th century data. However, I wonder if they thought it through far enough to realize that, under the new "post Bruen" rules, it could very well come back and bite the state in the ass.

IF "relevant ONLY if it does NOT conflict with those laws and traditions from the founding through the 14th Amendment time period" (paraphrase), the 20th Century gun laws (most if not all) MOST CERTAINLY WILL CONFLICT, so, by having them included in the data, there is the opportunity for the judge to rule the 20th century data "irrelevent", officially, and possibly once and for all (absent another higher court reversal of that ruling).

Ruch a ruling would shoot that part of the argument and line of reasoning right in the butt, dashing any hope of usefulness to the State's case.

I'd consider it a good thing, possibly...

[Metal god]

Minute Entry for proceedings held before Judge Roger T. Benitez: Status Conference held on 12/12/2022. The state defendants shall create, and the plaintiffs shall meet and confer regarding, a survey or spreadsheet of relevant statutes, laws, or regulations in chronological order.

The listing shall begin at the time of the adoption of the Second Amendment and continue through twenty years after the Fourteenth Amendment.

For each cited statute/law/regulation, the survey shall provide:
(a) the date of enactment;
(b) the enacting state, territory, or locality;
(c) a description of what was restricted (e.g., dirks, daggers, metal knuckles, storage of gunpowder or cartridges, or use regulations);
(d) what it was that the law or regulation restricted;
(e) what type of weapon was being restricted (e.g., knife, Bowie Knife, stiletto, metal knuckles, pistols, rifles);
(f) if and when the law was repealed and whether it was replaced;
(g) whether the regulation was reviewed by a court and the outcome of the courts review (with case citation).

Defendants may create a second survey covering a time period following that of the first list. If opposing parties cannot agree on the inclusion of a particular entry on the survey, the disagreement shall be indicated and described on a separate list.

The survey list shall be filed within 30 days.
Parties may file a brief up to 25 pages within 30 days thereafter focusing on relevant analogs.
Parties may file a responsive brief within 10 days thereafter.
Parties shall agree within 20 days on deposing Mr. Roth and Mr. Cramer at an agreed place and time.

(Court Reporter/ECR Abigail Torres). (Plaintiff Attorney John W. Dillon). (Defendant Attorney Kevin J. Kelly, Mark R. Beckington). (no document attached) (gxr). (Entered: 12/15/2022)

Looks like they want them all in 30 days , wow that seems like a big ask to me .

[Metal god]

I just got to thinking that the order does not say all statutes . This leads me to believe the state can pick and choose which ones they want to use . Meaning leaving out laws that were repealed or found unconstitutional that may contradict the laws they include .

This would require the plaintiffs to find those contradictory statues them selves ? Is that how others are reading this order ?

[44 AMP]

a survey or spreadsheet of relevant statutes, laws, or regulations in chronological order.

here's the wiggle room, and also a potential "trap", "relevant statutes"..etc...

Wiggle room because the State, (or the defense) might not include what they don't deem "relevant", and the trap, where if something is not included and the judge is informed of this, and considers the omitted information "relevant", then he's not going to be happy and the offending party could be looking at being found to have intentionally failed to comply with the court's order.

I think that might (hopefully) result in a contempt citation.

[Aguila Blanca]

One (well, I, anyway) might hope that the plaintiffs' counsel will expect the state to waffle on what they include, and be prepared with their own list so they can point out "relevant" omissions.

[Metal god]

Deleted, might have been inaccurate.

[44 AMP]

Not providing the court with all the information is what got us the Miller ruling on the NFA 34. If you're interested, look closely at what SCOTUS actually said back then. Essentially, they did not rule the sawed off shotgun in the case wasn't or couldn't be a "militia weapon" and therefore render the Fed case invalid, they stated "We have been provided no information..." and upheld the govt case. It also helped the Fed case that there was no opposition to them in court that day.

In this matter, a judge has specifically requested comprehensive information, so that he may perform one of a judge's primary functions, deciding what is and isn't relevant to the case(s) before him in order to make a ruling.

With the state saying their own experts have been studying this matter for decades, I think any omission would be significant evidence of intentional noncompliance. But that's just the kind of petty individual I am

[Tom Servo]

The listing shall begin at the time of the adoption of the Second Amendment and continue through twenty years after the Fourteenth Amendment.

If they go by that time period, there's going to be one clear, unambiguous trait shared by those regulations. They can be shown to be motivated by an agenda to deny the RKBA based on race.

[Metal god]

I don’t know a lot about the RKBA for that time period but at a glance would agree . My guess is they will find very little “weapons” control unless it was directed at a specific class . I’m not so sure the judge didn’t choose the 20yrs after the 14th amendment on purpose even though in court he made it sound like he just came up with that number on the fly .

[44 AMP]

They can be shown to be motivated by an agenda to deny the RKBA based on race.

This is one of those things that will involve a lot of "splitting hairs" and I'm certain it will be argued by someone(s) that the agenda was to deny RKBA based on race. But take a close look at what the laws specifically SAY, and do separate that from what people actually DID in that era.

Admittedly I have not (at this time) made a detailed study, but my understanding is that what the laws barring arms to "blacks" (or others) do not actually, DIRECTLY say race is the determining factor. What they say about who can/cannot have arms is based on the social position, meaning, slave or free, primarily, and not directly on skin color/race. I believe that a legally free black person (with the papers and everything to prove it) was not legally barred possession of arms.

Socially, people didn't want that, but legally a free man of any color had the RKBA. Like a lot of laws back then, and, to some extent, even today, how poeple get treated is not in line with the letter of the law, but that is, to me, a different matter.

I think the point here, looking at the historical precedents, is that we should not allow the focus to be ONLY on where noble ideals failed, but rather on where they didn't, and why.

[Metal god]

Even if those laws can’t be proven to be specifically rooted in a race-based prohibitions . The next question would be what happened to said laws and are they still in effect . If not why . That is one of the best parts about the judges order . If you include any laws that were struck down or repealed, you also must show why they were repealed or the the case challenging said law .

They can not simply show laws that once were excepted, they also must show why they are no longer exceptable . That should make it a bit more difficult for the state to find laws prohibiting arms that are actually helpful to there case in the time period they are restricted to .