Big 2A Win in CA!

[Hawg]

A big win for California!

By Associated Press | August 14, 2020 at 1:43 PM EDT - Updated August 14 at 4:01 PM
SACRAMENTO, Calif. (AP) — A three-judge panel of the 9th U.S. Circuit Court of Appeals on Friday threw out California's ban on high-capacity ammunition magazines, saying the law violates the U.S. Constitution's protection of the right to bear firearms. https://www.wbtv.com/2020/08/14/th-c...ity-magazines/

[TXAZ]

Don’t worry, the 9th circuit will likely stay that over the weekend using the theory of bovinesus excretas.

[44 AMP]

such as WA/OR/HI that all have capacity limits,

WA state doesn't have magazine restrictions.

not sure about the rest.

[Hawg]

Originally Posted by TXAZ

Don’t worry, the 9th circuit will likely stay that over the weekend using the theory of bovinesus excretas.

True but you know Pelosi's panties are in a wad.

[BJung]

This is a win but the illness is still there with Liberal Politicians there still wanting to destroy the 2A, Liberals voting to support them, and Liberals moving from these California and infecting Texas like a cancer.

[Tom Servo]

We'll have to wait and see. Most likely, the state will ask the 9th Circuit for an en banc hearing, and then they'll overturn this. Since SCOTUS seems utterly disinterested in hearing 2nd Amendment litigation, the book gets closed on the matter.

[Bartholomew Roberts]

The makeup of the Ninth Circuit has changed quite a bit since 2016. An en banc hearing is by no means a sure thing for either side these days.

[Metal god]

I have a question , Is the stay still in effect ?

There seems to be some debate over this and I was told on another forum that the DOJ has sent out a letter saying the stay is still in effect . However the stay was supposed to be in effect until a ruling on appeal which has happened .



I then read this on another forum

A "published" decision is the law until/unless overturned.

That means mag sales to CA should be okay until some further order is made by that court (the 9th) or a higher court (SCOTUS).

“Although the Ninth Circuit has granted a stay of the mandate in Butler, the panel decision remains the law of the Circuit. See, e.g., Chambers v. United States, 22 F.3d 939, 942 n.3 (9th Cir. 1994) ("We reject the government's argument that X-Citement Video is not binding precedent until the mandate issues in that case. In this circuit, once a published opinion is filed, it becomes the law of the circuit until withdrawn or reversed by the Supreme Court or an en banc court."), vacated on other grounds, 47 F.3d 1015 (9th Cir. 1995); United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995) ("The government first urges us to ignore Armstrong since we have stayed the mandate to allow filing of a petition for certiorari; this we will not do, as Armstrong is the law of this circuit."); see also Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (noting that "once a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court's decision as binding authority").

Schuller v. Horel, No. EDCV 08-1128-PA (RNB), 2008 U.S. Dist. LEXIS 125879, at *6 n.3 (C.D. Cal. Oct. 1, 2008)

I’m not saying this is the “ law” pre mandate, but the courts Seem to treat the opinion as law from my research. So.... take that for what it’s worth. And, (something something, soon).....

In fairness our lawyer put out this shortly after the ruling which indicates they believe the stay is still in effect .

Earlier today, a three-judge panel of the Ninth Circuit issued its opinion in the CRPA-supported lawsuit Duncan v. Becerra. This momentous decision strikes down California’s statewide prohibitions against magazines capable of holding more than 10 rounds as unconstitutional. In doing so, the Ninth Circuit upholds the 2019 decision from the United States District Court in San Diego that resulted in hundreds of thousands—if not millions—of magazines being lawfully purchased by California gun owners.

Today’s opinion, however, should not be read as immediately ending the ban on acquiring magazines over 10 rounds. While possession of these magazines remains legal under the injunction issued by the district court in 2017, it is unclear whether today’s decision lifts the district court’s 2019 order staying the injunction that would have halted the enforcement of the manufacture and acquisition ban. According to the terms of that order, it remains in effect “pending final resolution” of the Duncan appeal. And because the state of California may petition for an 11-judge en banc panel to rehear the case or file a petition directly to the Supreme Court of the United States, it may be months before this appeal is finally resolved. Put simply, take caution! It is unclear whether California residents may begin to purchase magazines over 10 rounds yet.

A more detailed analysis of today’s opinion and what’s next will be published shortly. To stay informed on the Duncan lawsuit, as well as other important CRPA-supported litigation efforts, be sure to visit the CRPA website and subscribe to CRPA email alerts.

[Frank Ettin]

Originally Posted by Metal god

I have a question , Is the stay still in effect ?....

Yes, the stay is still in effect. See this from the CFPA. The information from the CRPA is a good deal more reliable than some anonymous post on some other gun forum.

The key phrase in the stay order is “pending final resolution”. The decision really isn't final until all possibilities for further appeal (e. g., en banc hearing, Supreme Court review, etc.) have been exhausted.

[Metal god]

Ok thanks , it appears not even the smartest people in the room are sure and are recommending caution when moving forward. I do know there are several out of state vendors now shipping to CA .

[TXAZ]

I’m hoping for a second Trump turn that sees the entire 9th circuit replaced with judges from Oklahoma, Idaho, Montana and West Texas.

(Can’t I dream a bit)

[BJung]

Good to see some fellow Californians here. I live in Redwood City. Frank, do you know if the Golden Gate NRA Members Council is still active?

[Aguila Blanca]

The National Shooting Sports Foundation (NSSF) agrees with Frank. Froma recent e-mail blast:

Originally Posted by NSSF

We have been asked by California retailers, distributors and ammunition magazine manufacturers across the industry whether Friday's landmark decision by the U.S. Court of Appeals for the 9th Circuit in Duncan v. Becerra means they can now sell to California consumers, ship to California retailers or manufacture in the state for commercial sale in the state ammunition magazines capable of holding more than 10 rounds of ammunition (so-called "Large Capacity Magazines" or LCM). The short answer is "NO."

While the holding in Duncan is a tremendous victory for the Second Amendment, members of the industry should continue to refrain from selling or shipping into California LCMs until after the appeal proceeding is concluded or the stay is modified or lifted. This is because the U.S. District Court’s Order Staying In Part Judgment Pending Appeal, dated April 4, 2019, remains in effect "pending final resolution of the appeal from the Judgment." The appellate proceedings have not concluded or been finally resolved, so the stay remains in place.

[BJung]

Very nice. Thanks Aguila..

[KyJim]

A federal appellate court will normally issue a "mandate" to indicate a decision is final and enforceable.

[raimius]

What would be a "normal" timeline to finalize or for the state to seek an en banc?

[Aguila Blanca]

Originally Posted by KyJim

A federal appellate court will normally issue a "mandate" to indicate a decision is final and enforceable.

Link to the decision:
https://d3n8a8pro7vhmx.cloudfront.ne...pdf?1597420688

The district court's decision included a stay. The appelate panel didn't lift the stay in its decision.

[KyJim]

AB --- The district court's stay would end once the Court of Appeals issues a mandate under Federal Rule of Appellate Procedure 41. That would be 7 days after the time for filing a petition for rehearing or denial of rehearing or denial of a motion to stay the mandate in the Circuit Court of Appeals. The appellate court can stay the mandate for up to 90 days pending a cert petition and can extend it further for "good cause" or other specified reasons.

The appellate court does not have to specifically lift the district court's stay since it upheld the district court's summary judgment and there appears nothing left for the district court to do as things now stand. Of course, there will likely be a petition for rehearing and maybe later a cert petition. So, it could be awhile before a mandate is actually issued.

One caveat: I have not looked at the 9th Circuit rules so there could be some variation from the above, though it should not be substantial.

[DaleA]

I'd just like to thank the folk that take the time and effort to dig into these things, use their knowledge and experience in these things and give us a concise, understandable explanation of these things.

And yeah, you can say I should not be so lazy that I ask others to do this stuff, and I should dig through it myself but I am that lazy and I do appreciate their efforts.

[Metal god]

And yeah, you can say I should not be so lazy that I ask others to do this stuff, and I should dig through it myself but I am that lazy and I do appreciate their efforts.

While I understand where you’re coming from I do not agree . I truly have no respect for those guys, the ones that just tell you to go figure it out yourself . These boards are exactly for asking those types of questions. There would literally be no reason to be here if all we/you we’re going to do was look it up ourselves . What would we need these boards for then . You get that kind of crap a lot over at CAL guns .

[50 shooter]

Here's a brief summary of FAQ:

1. What did the Ninth Circuit three-judge panel hold? The Ninth Circuit held that the entirety of California Penal Code section 32310 is unconstitutional under the Second Amendment. The ruling affirms the 2019 order of the Honorable Judge Roger Benitez of the United States District Court for the Southern District of California.

2. What does it mean that the Ninth Circuit applied strict scrutiny in this case? When courts review constitutional challenges to government action, they can apply one of various levels of review. Three of the most commonly levels of review, called levels of “scrutiny,” are rational basis, intermediate scrutiny, and strict scrutiny. Whether a law will be upheld as constitutional can depend heavily on which level of scrutiny is applied to evaluate the constitutionality of a law ... What makes the Duncan ruling so important is that it marks one of the few times strict scrutiny has been explicitly applied in a Second Amendment case. While CRPA is thrilled that this decision struck the ban on magazines over 10 rounds, the court’s application of strict scrutiny is also great news for current and future Second Amendment cases in California. This precedent will no doubt help CRPA in its challenges to numerous other infringements the state has imposed on the right to bear arms.

3. What did the Ninth Circuit say about the use of intermediate scrutiny? Since the Heller and McDonald decisions, CRPA has been disappointed to see courts apply intermediate scrutiny in name only ... the Ninth Circuit finally gave us the fair analysis we’ve been waiting for. While the panel found that strict scrutiny applies, it also conducted a review of California’s magazine ban under intermediate scrutiny and found that it would not survive that more permissive standard either. According to the court, the statute was simply not a reasonable fit to the important public safety interests that it was enacted to serve. As the court writes, “[w]hile the precise contours of intermediate scrutiny may vary, this much is certain: It has bite. It is a demanding test.” And, in what appears to be a clear criticism of the bad-faith review of other circuits, the court states that “intermediate scrutiny cannot approximate the deference of rational basis review.”

4. Does this mean that it is now lawful to own or possess magazines over 10 rounds in California? YES!

5. Can I start buying or selling magazines over 10 rounds in California today? NO!

6. Can I use magazines over 10 rounds that I lawfully acquired at a shooting range? YES!

7. Can I carry the magazines I lawfully acquired with a firearm pursuant to a carry license? YES!

8. I own magazines over 10 rounds that are currently out of state, can I bring them back to California now? NO!

9. Can I travel outside of California with magazines over 10 rounds that I lawfully acquired and then bring them back into California? NO!

10. What are the penalties for violating California’s magazine restrictions? Anyone who “manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazines” can be charged with either a misdemeanor punishable by up to a year imprisonment or felony punishable by up to 3 years imprisonment (known as a “wobbler”). Until it is clear that Judge Benitez’s 2019 stay order is lifted, law enforcement might seek to enforce these provisions, exposing you to criminal liability.

11. How does the court’s ruling affect California’s “nuisance” provision? While law enforcement might in fact seize so-called “large capacity” magazines as a “nuisance” under Penal Code section 32390, it is our attorneys’ view that there is no legal authority for it to do so—at least not for those who lawfully acquired their magazines. In fact, our attorneys believe section 32390 is unenforceable against at least lawfully acquired “large capacity” magazines, regardless of this ruling, as it was never intended to apply to them ... In any event, even if our attorneys’ analysis of section 32390 is wrong, the Duncan decision makes clear that it is unconstitutional and thus unenforceable. The notion that an item whose possession is protected by the Second Amendment can be seized by government provided there is no criminal penalty is absurd.

12. What’s next for the Duncan appeal? At this point, that is largely up to Attorney General Becerra and the judges of the Ninth Circuit. The State might choose to accept the panel’s decision, or it could petition the three-judge panel to reconsider its ruling and/or petition the entire Ninth Circuit to rehear the case en banc. And even if the State chooses not to seek rehearing, a judge of the Ninth Circuit might call for a vote to take the case en banc anyway. If rehearing is ordered, additional briefing may be requested, another date for oral argument will be set, and another decision from the Ninth will issue. At that point, the losing party will decide whether to ask the Supreme Court to weigh in by filing a petition for writ of certiorari ... Alternatively, the State could seek direct review by the United States Supreme Court. That avenue will require briefing by the parties on whether the Court should review the Ninth Circuit’s decision and, if the Court chooses to do so, additional briefing and oral argument ... Either way, this process can take months or years.

13. Where can I view the filings in the Duncan v. Becerra lawsuit? All case filings can be viewed online for free at http://michellawyers.com/duncan-v-becerra/.

14. Who is responsible for litigating Duncan v. Becerra? The California Rifle & Pistol Association (CRPA), with financial support from the National Rifle Association and The CRPA Foundation (CRPAF) filed this lawsuit after hearing the concerns, outrage, and fear from members who were being forced by the passage of Prop 63 and Senate Bill

Metal God, yeah it's sad to see what's become of Calguns. Used to be a great site but the democrats have taken it over also!

[Aguila Blanca]

Originally Posted by 50 shooter

4. Does this mean that it is now lawful to own or possess magazines over 10 rounds in California? YES!

5. Can I start buying or selling magazines over 10 rounds in California today? NO!

6. Can I use magazines over 10 rounds that I lawfully acquired at a shooting range? YES!

7. Can I carry the magazines I lawfully acquired with a firearm pursuant to a carry license? YES!

8. I own magazines over 10 rounds that are currently out of state, can I bring them back to California now? NO!

9. Can I travel outside of California with magazines over 10 rounds that I lawfully acquired and then bring them back into California? NO!

Thank you for this summary. I think this information is what most of the non-lawyers among us (particularly those in California) want and need to know.

[Metal god]

Yes , thank you very much 50 Shooter

That tracks with my understanding but with much greater detail .

I don't see how this gets past an en banc rehearing in are favor . We will almost certainly lose the en-banc and then a refusal to hear by the SCOTUS . I would love to see the AG try to go straight to the SCOTUS . They would have a split and I'd think would need resolving . Then again with Roberts , be careful what you ask for . He has shown to legislate from the bench so who knows what he might do . .

[50 shooter]

Glad I can help, everyone needs to have this info, not just Californians. I would think that people in other states could use this info also if they have to deal with a mag ban.

As far as the stay still being in place, I believe they have until the 28th to go for an appeal. If they ask for an en banc hearing we'll be waiting even longer. That and if they decide to go to SCOTUS.

Downside to this is that if they lose, we will win bigly! It will do away with any mag ban in the U.S. and further help us overturning other bans.

[50 shooter]

CRPA has posted on their site that the state has requested an en banc hearing!

All we can hope for now is that it blows up in their faces!