California's ten round magazine ban struck down by Federal District Court (UPDATE: Reinstated)

[zukiphile]

Originally Posted by Aguila Blanca

My point simply is that if we're going to discuss what's in the Heller decision, we need to look at the Heller decision rather than argue over what what's-his-name said so-and-so said was in Heller.

That appears beyond reasonable dispute.

Originally Posted by Glenn E Meyer

Interesting topic - if we resolve the issue of Heller not having the term in it, does it aid in advancing the RKBA cause? The list of conditions Scalia mentioned seem to get thrown up as some kind of restrictions, that seem 'sensible' and should be expanded upon.

Again, the passive voice conceals the culprit. That Scalia notes the existence of restrictions doesn't "seem" to be an argument that they should be expanded, and that doesn't "seem" to be floated except by advocates for further restriction.

Of course, being truthful and accurate about the language of the caselaw of civil rights is important in advancing civil rights. When you misinterpret the case, you misinterpret the right.

Originally Posted by Glenn E Meyer

The literalism issue is seen a discussion of the Wall (which we DON'T) want to discuss itself.
***
Here's a quote:

Accusations of literalism aren't a good defense to getting the language of a case substantially wrong because the language of constitutional decisions isn't trivia.

Whether Scalia set up "reasonable restrictions" as constitutionally permissible is not mere trivia to you, but something you've set forth as evidence of Scalia's lack of foresight.

Originally Posted by Glenn E Meyer on October 16, 2016

I said from the getgo that Heller was flawed with the reasonable restriction blather. I recall some onetime visitor to TFL arguing that Scalia was a wily old bird who planned to use it to expand gun rights in later decision. Guy was a moron as we see by results. Lower courts used it to uphold bans and the full court wouldn't take a case as Scalia and Thomas sputtered in rage.

It can't be the key to understanding Scalia's flaws when you make the assertion, but mere trivia when you are corrected, right?

Originally Posted by Glenn E Meyer

The point being - is correcting the non-usage of reasonable restrictions in Heller going to get us anywhere as the next refrain after one corrects the assault rifle usage and/or reasonable non-usage in Heller, will be that the weapons under consideration should be banned as they are extremely dangerous and who cares about those two points.

People who read and understand text care. Who cares what it says if something else happens? is the three card monte of poor rhetoric.

[Aguila Blanca]

Originally Posted by Metal gog

I have no doubt Scalia meant to not undo other restrictions already on the books .

He didn't want to undo other restrictions in Heller, but that doesn't mean he said they couldn't be undone. That's why he referred to them as "presumptively" lawful. In plain English, that basically meant (and means), "They're presumed to be lawful for now, until such time as a court examines them and decides whether they really are lawful ... or not."

The Supreme Court generally doesn't engage in throwing the proverbial baby out with the proverbial bath water. When they take a case, they tend to decide the case very narrowly, addressing only the constitutional issue raised by the case.

In Heller, the question itself was very narrow ... by design. Dick Heller complained that he was not allowed to keep a handgun (he didn't mention rifles or shotguns, so if you read the decision you'll find that the decision only applies to handguns) in operable condition in his home (he didn't ask why he couldn't carry a gun out in public, on the mean streets). And that's why the decision focuses narrowly on the constitutionality of the Washington, DC, law that didn't allow Dick Heller to keep an operable handgun in his home.

That's why the decision only addressed the home. As we have seen, since Heller many lower courts have bent, folded, twisted, spindled and mutilated Heller to claim that Heller said that the right to keep and bear arms applies ONLY in the home. NO! That's not what Heller said. But you have to read the decision to find that out, because so many people (and judges) have erroneously (maybe) or intentionally (much more likely) misstated it.

[TDL]

At this point in US jurisprudence on 2A/gun control, as interesting as the case law and merits are, it is in fact ruled by on partisan basis. We know 8/9ths of SCOTUS are going to rule/vote on most 2A issues to an extremely high level of confidence based on their partisan association.

If there was twin of Thomas on that court instead of Roberts we have, regardless of any analysis of the merits and legal arguments, we have a very good idea of how strict scrutiny, may/shall, AR bans, mag capacity would go. And conversely we also know that if we had a twin of Kagan or Sotomayor how those would go (and how Heller would become meaningless).

We are seeing Roberts move to the space Kennedy occupied, so this is a wild card. We don't know what he will do on strict, we don't know what he will do on may/shall, we don't know what he will do on AR-15, nor what he will do on magazine capacity -- yet it is very likely what he will or won't do is all that matters. Consider Scalia and Kennedy and Heller: Was it really Scalia views at all or instead, how far Scalia felt he could go before trigger non-support by Kennedy? I say it was the latter.

Of course, and make no mistake about it, if RBG is there for 19 or so more months (even with Nuclear Option some number of weeks are needed to get a replacement through) than we can quite easily be looking at Thomas or Alito replaced by a Democrat president and Heller could be whittled to nothing. We would not be talking about mag capacity, we would be having some US jurisdictions happily re-attempting to ban all handguns, all mag fed semi auto rifles of any kind, and mandating that anything else be kept locked and disassembled. Some US jurisdictions might even have “may issue” to even possess a gun. Sure Heller might retard some of that – until it gets to a new SCOTUS that could shred Heller without compunction.

On the legislative side as well, partisan considerations have shown a clear long term sharpening. Legislator positions have gone from about 80% party aligned 25 years ago to 95% partisan aligned today. In the over 10,000 or so data points in the last few years on each individual legislators co-sponsorship, committee votes, floor votes for Federal and state legislators we have see it go from mostly partisan to one of the most fully partisan issues there is. Sure you can find some Republicans in Purple state legislator districts or purple congressional districts cross line on gray area legislation like red flag, and some Democrats in purple districts that are released by Democrat leadership that has the voted to stay out of a fight n the most draconian gun control. But the blue dogs are almost all gone and this issue has gone from third rail to immense money making/lauding opportunity in campaign finance that is almost all upside for Democrats. Between blue dogs disappearing and gun control lobbying and gun control organizations campaign finance channeling becoming highly sophisticated with newly huge amounts of C3 (half cost after tax deductions) being given and spent this will intensify.

Back to judiciary, do we really think the merits were the reason why DC did not kick may/shall in Grace/Wrenn up to the next level which they knew would then force it SCOTUS? I don’t see it. Their decision was knowing exactly how eight were going to vote – exactly on partisan lines -- and the risk of being uncertain on Roberts.

[TDL]

I've often thought about literalism when someone says assault rifles should be banned and the usual reply was they are not assault rifles because assault rifles are like the Sturmboomerbanger. Saw Guns and Ammo TV have a ludicrous presentation of a fully auto M-16 vs. a semi AR-15, arguing the latter is somehow nice and an MSR and not an assault rifle. Thus, it should be banned.

Not being stupid, antigunners picked this up we MSSA - military style semi-autos being common parlance. NZ uses it legally now.

You make a good point.

But when Josh Sugarman scored the victory on terminology with his replacing of the defintion of "assault rifle" he had even less money, less sophistication, less lessons learned than the modern gun control lobby has.

Fighting on terminology, like fighting on rallies (we get tiny ones with stereotype reinforcing old white guys in camo), and fighting in big money fights (we used to have more money, now they have way more) , is all fighting on ground chosen by, or conducive to the strengths of, our adversaries. If you have heavy infantry you don't fight in the deep mud, you don't take your archers and put them in shock combat with heavy infantry, and if you have 50 guys in a castle you don't send them out of the castle to fight 300 guys outside the wall.


Consider how quickly and broadly "gun safety origination" and "gun violence prevention organization" was picked up by the media. The NRA is the only actual gun safety organization in America. it has promulgated massive amounts of safety material and trained tens of millions in gun safety. Yet that was co-opted and stolen in a minute when the focus groups showed "gun control" had some negatives.

The problem with public discourse on gun terminology is not them being smarter than us, but our adversaries a) having the press fully on their side and b) a complete difference in audiences.

Their audience is different. Their audience is virtually all people who would not know what the terms "trigger guard" "muzzle" or "cartridge" mean. Our adversaries are with 100% certainty testing terms with focus groups and surveying to see what terms elicit the greatest levels of fear/disgust reactions -- and/or greatest levels of ambiguity and confusion. that is the whole mechanism and goal of their terminology creation and usage.

We can't play the same way. Our audience tends to know about firearms so we have to be somewhat accurate. We can't just make it up for the most advantageous reaction. They can.

The best response to "military style" or "military style semi auto" is not with a competing term but to get out front noting that the other side is using terms that mean they are talking about grabbing the pistols that the majority of gun owners own for basic self defense and among the most common rifles. Because all semi auto pistols are military style. a 100-year-old design 1911 is "military style semi auto" gun.

if we are going to use any term for what they are trying to get banned we should use the term: "modern civilian guns." or better yet "the most common civilian guns." That is ambiguous to our advantage and not inaccurate.

As far as NZ, when it comes up we should say NZ has no actual constitution, and can ban a lot of speech and end a lot of privacy and criminal defense law we have as well tomorrow, and that on guns they also banned what is one of the most common rifles owned in Canada.

[USNRet93]

Originally Posted by HiBC

.


USN,we covered the Red Flag law . Even the Denver PD came out against it.


No need to do reruns. We are working on making some corrections.


Supposedly,after Pearl Harbor,Yamamoto said something like "I fear we have awakened a sleeping giant and filled him with a terrible resolve." Time will tell.

Not my point..yes, RF law but 'in the trenches'..us individuals who own, buy, use guns..in Colorado, not really very 'glum'..gonna go shooting today up in Pike National Forest with son..large, uncontrolled, outdoor shooting area..great fun..

Buy, sell, use, carry..really no big deal..in Colorado...

[Aguila Blanca]

Originally Posted by USNRet93

Buy, sell, use, carry..really no big deal..in Colorado...

Unless:

• You have a semi-automatic, centerfire rifle with a 21-round detachable magazine in Denver ("assault weapon")
• You're in Aurora and a business owner has posted his premises
• Per Section 29-11.7-104, any local municipality can enact an ordinance prohibiting open carry in any building or facility (which can be a park) owned by the municipality
• Your firearm(s) has a magazine capacity greater than 15 rounds

Colorado is leaning left, and more so every year.

[Brownstone322]

Originally Posted by HiBC

Supposedly,after Pearl Harbor,Yamamoto said something like "I fear we have awakened a sleeping giant and filled him with a terrible resolve." Time will tell.

Just for clarity, that's a made-up quote from "Tora, Tora, Tora." Yamamoto never said or wrote any such thing. He understood his window of opportunity was small, but he had every intention of sealing the deal in 1942.

In fact, in the months after Pearl Harbor, Yamamoto devised a plan to lure the USN into a decisive battle that would finish off their air power and force the Americans to settle. The effort failed spectacularly, but that's another story (and a really bad film).

[Aguila Blanca]

I wrote this at 11:13 today:

Colorado is leaning left, and more so every year.

At 13:25 I stumbled across this:

https://www.cnn.com/2019/03/31/us/co...law/index.html

David Kopel, a constitutional law expert who has written extensively about gun policy in the United States, says he thinks the bill is generally a good idea but that he has serious reservations about how it is written -- in part because of outside influence.

"The gun ban lobbies are getting more and more extreme and aggressive," he said.

The bill allows a judge to order a person's guns to be seized before the person has a chance to appear in court. The bill does require a second hearing with the gun owner present to be held within 14 days, where the owner could make a case to keep the weapons -- but if the owner is unsuccessful, a judge could order the guns seized for as long as a year.

Kopel said it would be difficult to prevent a nightmare scenario in which someone misuses the law to take guns away from a person they intend to target violently.

The burden of proof is low -- "preponderance of the evidence," which is the same standard used in civil cases, and a much lower bar than the criminal standard, "beyond a reasonable doubt."

[44 AMP]

Last I checked I can't get a A1 Abrams , what about different types of missile systems ? Wait I know , how about I get a F22 Raptor fully loaded for my neighborhood watch program ????? yes over the top but with out scalias words in Heller one would be able to have any arm they want . Do you really want the guy next door having a MOAB

You can have a tank, or a fighter jet, or even missiles, IF you can find them legally for sale and AFFORD them.

tanks are actually the easiest. There's no restrictions on it because its a tank. Just the standard motor vehicle rules. The machine guns, however are covered under the NFA, but the cannon isn't. However, each round of cannon ammunition IS, due to the size (if it explodes, its another set of rules)

Jet fighter? sure, but the cannon and its shells are restricted arms, and there are other laws that cover the aircraft technology.

Missiles? its the warheads that are restricted as explosives (and again, the missle tech might be covered under other laws) but without a warhead, its just a model rocket...


Go look and see what Tenche Cox said about the matter..

[zukiphile]

Originally Posted by 44AMP

You can have a tank, or a fighter jet, or even missiles, IF you can find them legally for sale and AFFORD them.

Old MiGs hit the sport market a few years ago, and there isn't any real aviation that I would call cheap.

I have some greater experience with military collectors who have artillery and tracked vehicles. These are people with a passion and a budget to keep these things working. The economics are very much like the old/restored car market, i.e. not cheap, and in both instances where you see a very nice example it represents lots of time and money.

[Glenn E. Meyer]

Kopel was on CSPAN testifying before Lindsay and Diane. Haven't listened to the recording as I've been busy.

He's a good guy. Shot his Springfield 1911 TRP outside of Boulder quite a few years. Very thoughtful.

[rickyrick]

I see civilians driving around tanks and firing them at some events and let people participate for a fee. I see civilians that own miniguns, m2 machine guns, m60s and the like.
I believe that even before the civil war that civilians owned their own armies. Some generals outfitted units with their own funds.

I get adds on Fox News or one of those conservative websites where you can go up in a mig for a fee.

[Glenn E. Meyer]

There are firms that fly old fighter planes for aggressor opponents for our armed forces. Some really neat stuff like Kfirs and Hawker Hunters.

Anyway, we are straying off topic with Japanese misquotes, tanks and fighters. Let's hope this CA decision leads to something reasonable and doesn't sputter away.

[Metal god]

You can have a tank, or a fighter jet, or even missiles, IF you can find them legally for sale and AFFORD them.

No you can't . at least not modern ones . It's in the contracts of the companies building new modern weapon systems . They are not allowed to sell to the civilian population . When the founders wrote the constitution . The civilian population had in there possession the most advanced weapons the world had ever seen . So what happen , Why can't we have those anymore ? The second amendment is the most RESTRICKED right to the point of it really not even being a right anymore . Yet Some think Scalia said restrict it more , no he didn't . In fact with the in common use wording IMO he actually said stop restricting it any further .

tanks are actually the easiest. There's no restrictions on it because its a tank. Just the standard motor vehicle rules. The machine guns, however are covered under the NFA, but the cannon isn't. However, each round of cannon ammunition IS, due to the size (if it explodes, its another set of rules)

Jet fighter? sure, but the cannon and its shells are restricted arms, and there are other laws that cover the aircraft technology.

Missiles? its the warheads that are restricted as explosives (and again, the missle tech might be covered under other laws) but without a warhead, its just a model rocket...

Thank you for making my point for me anyways and why Scalia needed to put those oh so hated words in his decision . Also why the in common use wording goes hand in hand with the rest of the decision . Those things that have been restricted can not be challenged but things that are in common use like 30 mags semi auto rifles etc etc need to be left alone with no more restrictions is how that ruling should be interpreted .

I've not heard anyone say it that way and IMHO that's what our sides talking point should be when the antis say Heller says there can be restrictions and quotes Scalia .

[rickyrick]

I think we are being restricted because we allowed it to happen. Lots of our natural rights have been restricted over the years. Many of the restrictions have been wrong, oppressive and downright evil throughout our country’s history. Many things should never have been allowed to happen within the borders of the USA in my opinion. Many have had their rights restored when enough of the people put up a fight. But, keeping and restoring of rights depends on the support of those being affected AND the support of those unaffected. In our case, the unaffected simply don’t care and many that are affected don’t care either. I hope this stands and serves as an example to other jurisdictions but I don’t have high hopes.
In my opinion the door to more restrictions opened in the previous century.
I do realize that many jurisdictions enjoy more firearm freedoms in recent times, but the momentum is not enough to stem the tide in other states. The “free states” need to fight for the rights of people in other states to make a difference. Many of us simply have the choice to stay and comply or pull up stakes and move on.
I moved to Washington five years ago and at the time I found a pretty gun loving population now I’m contemplating liquidation of my semiautos in favor of pump guns and revolvers if things keep going in the direction that they are. I hope this stands and slows down the loss of the entire West coast but I’m pretty pessimistic. Texas is looking pretty tempting again lol

[2wheelwander]

karrisguns.cim announced via email they are now shipping high capacity magazines to CA.

we now return to our regularly scheduled programming.

[Metal god]

I'm surprised there has not been an emergency stoppage on the judges ruling . Or is it that the antis figure they will win on appeal anyways and everyone that's bought there mags will just have to comply with the original law in the end ?

[Aguila Blanca]

Originally Posted by Metal god

I'm surprised there has not been an emergency stoppage on the judges ruling .

The California AG has applied to the Ninth District for an emergency stay of the ruling pending appeal.

Stay tuned.

[USNRet93]

Originally Posted by Aguila Blanca

Unless:

• You have a semi-automatic, centerfire rifle with a 21-round detachable magazine in Denver ("assault weapon")
• You're in Aurora and a business owner has posted his premises
• Per Section 29-11.7-104, any local municipality can enact an ordinance prohibiting open carry in any building or facility (which can be a park) owned by the municipality
• Your firearm(s) has a magazine capacity greater than 15 rounds

Colorado is leaning left, and more so every year.

Don't disagree with anything you said..but 'Coloradistan'? Denveristan? Hardly..

You need to mention other 'local municipalities' who are the opposite of the above to be 'objective'..like Colorado Springs and Pueblo.

Like
-the 15 round mag limit is grand fathered..not an outright felony to possess.
-ANY local business can declare itself a 'gun free zone'..not just in Aurora..like in say Memphis or Biloxi...
-Again, if I have a greater than 15 round magazine(and I have 4), it is NOT a felony to own if purchased prior to the ban.

So not exactly '-istan'..anything. Colorado has been "Leaning left" for decades..in the eastern slope cities like Denver but certainly not Pueblo or Colorado Springs.

[rickyrick]

Some locations businesses can’t outright ban carry on the premises, some have a process they have to follow to do so. Some “No Guns” signs carry no legal weight, in other jurisdictions they do have legal weight. But I believe private entities can do whatever they want with thier businesses. The constitution and BOR have been applied to private businesses even though I think that’s beyond the scope of the constitution and BOR.

[Aguila Blanca]

Rickyrick is correct. Any property owner can prohibit firearms in/on his/her property, but unless there's a law making violation a criminal offense, the worst that can happen is that the owner asks you to leave. If you refuse, you can then be charged with criminal trespass, but that's still not a firearms violation.

But ... some jurisdictions have decided to give no guns signs on private property legal force. In that case, ignoring the sign IS a criminal violation, and it is a firearms offense.

[Spats McGee]

Originally Posted by Aguila Blanca

The California AG has applied to the Ninth District for an emergency stay of the ruling pending appeal.

Stay tuned.

I'll be a little surprised if the 9th stays this ruling pending appeal. If the 9th stays it, enforcement goes forward, causing (potentially) prosecutions under a law that has already been held unconstitutional at the trial court level and/or Takings. If it allows the trial court's bar on enforcement to stand while the appeal (that we all know is coming) is considered, what happens as a practical matter? Lots of magazines get shipped into the state, the possession of which only becomes a crime if the the trial court's decision is overturned. Maybe law enforcement's job gets a little larger because of the additional magazines, but that's not hear the upheaval that allowing enforcement of the law would. Besides, the trial court's bar to enforcement essentially preserves the status quo from before the law was passed. Courts like preserving the status quo.

[Metal god]

Besides, the trial court's bar to enforcement essentially preserves the status quo from before the law was passed. Courts like preserving the status quo.

Please correct me if I'm wrong . If you include the Federal assault weapons ban in the early 90's . We in CA have not been allowed to purchase mags that hold more then 10 rounds ( standard capacity ) for 25years-ish . During this time if you had already owned standard capacity mags they were grandfathered in and you could keep them but you could not buy assembled functioning standard capacity mags here in CA since the early 90's . Now there was a time when you could buy "repair" kits to fix your grandfathered standard capacity mags . These were simply disassembled standard capacity mags in a bag . However those were made illegal as well .

My point is , If we here in CA have not been allowed to buy slandered cap mags locally for 25+ years and never been allowed to buy standard cap mags off the internet because it didn't exist back when we could buy them . How has this ruling returned us to the status quo ? If the ruling had just allowed possession again maybe but we can now buy and import them , that's a huge change is it not ?

Or how far can you go back and it still be returning to the status quo ? Can we take away the right for women to vote and just say we are returning to the status quo ? Not being snarky , it was the first example that came to mind .

[44 AMP]

Or how far can you go back and it still be returning to the status quo ?

For me, the concept of status quo involves the idea of "what you had before".
This means two things have to be there, YOU and what you had before. So I think that means "a return to status quo" has to be within living memory, and also something you had then, not something you got as a result of the change you are going "back" before.

otherwise, it's a misuse of the phrase. So, in this case, I don't think going back before women had the vote to be a correct use of "return to the status quo". Women got the vote in 1920, and there are only a bare handful of people still alive who were alive then, and I doubt any of them personally remembers the event. Therefore, that event has passed out of living memory.
Going back a mere 25 years means there are still A LOT of people who not only remember those days but remember living in them, as adults.

and never been allowed to buy standard cap mags off the internet because it didn't exist back when we could buy them .

Buying things off the internet is no different than buying them mail order. The only difference is modern tech allows instant ordering and your catalog is online, not a book in your hands.

For those of us old enough to remember those pre-ban days, striking down the ban IS a return to our status quo. For those younger, who never knew a time before the ban, it isn't a return to your personal status quo.

that's how I see it, anyway..others might see it differently.

[danco]

Originally Posted by Metal god

...not been allowed to buy slandered cap mags locally... [Emphasis added]

I know that's a typo, but that's the greatest description I've ever seen: Not "high-capacity" or "standard capacity," but "slandered capacity"!

Awesome! I'm stealing, and using that!