Federal judge blocks CA magazine ban

[natman]

San Diego-based Federal judge Roger Benitez issued an injunction stopping California's ban on magazines over 10 rounds, saying the law violates the Second Amendment and amounts to confiscation without compensation.

http://www.foxnews.com/politics/2017...azine-ban.html

Yeah!

We shall see what unfolds.

[62coltnavy]

Now THAT'S a surprise! As I recall, the 7th Circuit allowed a complete ban of ARs to stand in Highland Park, and the 4th circuit allowed a Maryland ban of ARs to stand as well. Now, to tell the truth, I don't know if those other cases involved laws that required ridding oneself of possession of such items, as the California law does, but that may been the difference for this case.

[gc70]

The injunction.

[KyJim]

I just finished reading the 66-page temporary injunction. It could hardly have been written better for our side. It takes to task those courts which use the sliding intermediate scrutiny test over what it calls the "simple" test in Heller. It applies both tests and concludes the law fails both.

The state presented opinions by experts who admitted there was no good data available. They mostly relied upon two sources --- a survey of mass shootings by Mother Jones and one by Mayors Against Illegal Guns (now part of Everytown). The court analyzed each incident cited and concluded there were only a few where there was any evidence that a gun with a magazine of greater than ten rounds had been used. Of those, the court determined a ban on ten round magazines would likely not have prevented the mass shooting. The court seemed aware of the biases of these two sources but nevertheless treated the data as credible in making its findings. That would seem to make its findings harder to attack on appeal.

The court did emphasize that its findings could change upon presentation of better evidence by the state at trial.

[62coltnavy]

A tour de force. The judge actually knew something about guns, and looked through all the hypocrisy of the anti-gun coalition position--which is basically that in order to protect law abiding citizens, we must take away their power to protect themselves, while criminals will ignore the law completely.

If I were the State, I would take an immediate appeal. And I wonder how long it will take Ninth Circuit chief Judge Thomas to reverse it (sad to say). (and what is w orse, this is not a case that the Supreme Court will likely select for review.

[MagnumWill]

I've got my fingers crossed that Kolbe vs. Hogan eventually makes its way to the Supreme Court, as that would also benefit from this ruling. Good news for CA is few and far in between, so this is a welcome sight...

[g.willikers]

The most disturbing part of this entire affair is how many Californians voted for all these recent gun control laws.
Apparently the legislature representatives are claiming they're just following the desires of their constituents.
Here's an article about it:
http://www.sacbee.com/news/state/article158965184.html

[Aguila Blanca]

Originally Posted by g.willikers

Apparently the legislature representatives are claiming they're just following the desires of their constituents.

They can say whatever they want, but that doesn't make it correct. A man I worked for many years ago was fond of saying that, "Everything you see in the media is true ... unless you have first-hand knowledge of the facts."

My home town just enacted (actually, revised) an anti-gun ordinance. They sneaked it in -- along with several members of our state's pro-gun advocacy group, I met with the town's governing body a number of times to discuss the practical and constitutional flaws with the ordinance. They went ahead and passed it anyway, but they waited until the pro-2A side thought it had gone away, then they packed the meeting with their own friends, all of whom spoke in favor. Those of us who would have been against weren't informed of the meeting.

So the ensuing newspaper article duly reported that "several residents at the hearing spoke in favor of the ordinance."

[g.willikers]

Are you saying politicians can be untrustworthy?
Horrors, who woulda' thunk.

[ATN082268]

Originally Posted by g.willikers

The most disturbing part of this entire affair is how many Californians voted for all these recent gun control laws.

The voters only voted for the gun control laws directly if it was by referendum. The main problem, IMHO, with referendums is the brief blurb/description next to the voting button doesn't tell you what the whole law says or what all of it will do. Even if someone has access to the whole referendum along with all relevant laws and read it all, I'm not sure what percentage of people would understand it. So, a lot of referendums boil down to who can spread their propaganda the most effectively.

Originally Posted by g.willikers

Apparently the legislature representatives are claiming they're just following the desires of their constituents.

If a political candidate clearly campaigned on a gun control platform during their election/re-election, then I'd agree. Otherwise, no.

[doofus47]

Didn't see that coming....

[natman]

Originally Posted by ATN082268

The voters only voted for the gun control laws directly if it was by referendum. The main problem, IMHO, with referendums is the brief blurb/description next to the voting button doesn't tell you what the whole law says or what all of it will do. Even if someone has access to the whole referendum along with all relevant laws and read it all, I'm not sure what percentage of people would understand it. So, a lot of referendums boil down to who can spread their propaganda the most effectively.

I agree about the effective propaganda part. The media in California are relentlessly anti gun and most people lap it up. Proposition 63 passed by 63%, so it reflects the will of the people of California, at least those who live in the urban parts.

However, the people are just as capable of passing unconstitutional legislation as the legislature is. I daresay that a referendum in favor of school segregation would have passed in Alabama in 1963. That wouldn't have made it constitutional.

[KyJim]

Giving any weight to a referendum restricting constitutional rights is simply acquiescing to the "tyranny of the majority" a/k/a mob rule. That is exactly why we have a written Bill of Rights.

[DaleA]

In a related story, after hearing about the California court's ruling, a group of scientists hurriedly prepared an unmanned probe to check the temperature the nether-world. "I'll bet it's just as frosty as anything down there now" said one scientist gleefully.

[xcc_rider]

Problem is California doesn't care about the bill of rights. Our own elected officials have stated that they don't care (no, not all of them but enough) if it says xxxx if they want yyyy, they'll enact yyyy.

Seems like the governing body only likes it when the feds write checks to the state. Otherwise they'll do what they want. There's already talk of Calexit again. I guess the feds should have done staggered payments for the rain damage instead of one lump sum.

Sad really...

[Spats McGee]

Originally Posted by KyJim

Giving any weight to a referendum restricting constitutional rights is simply acquiescing to the "tyranny of the majority" a/k/a mob rule. That is exactly why we have a written Bill of Rights.

We have a winner! The Bill of Rights is thoroughly undemocratic -- and that's how it's supposed to be.

I've only skimmed this decision so far, but I'm hoping to get it digested this weekend.

[DaleA]

I've only skimmed this decision so far, but I'm hoping to get it digested this weekend.

Well, I'd be interested in what you (or anybody else with any legal training) thinks are the chances of this being upheld.

I'm all for getting rid of the magazine restriction, because it doesn't do any good and it's stupid, but those aren't legal reasons. (I guess...)

Also, how can this judge say California can't have a 10 round restriction when other states have a 10 round restriction? Or is it because California is actually making you get rid of over 10 round magazines? Or will other states have to get rid of their restrictions too?

Thanks to any that answer.

[natman]

Originally Posted by DaleA

Also, how can this judge say California can't have a 10 round restriction when other states have a 10 round restriction?... Or will other states have to get rid of their restrictions too?

The judge has ruled that the 10 round restriction violates the Second Amendment. The judge is only ruling on California's law, although it would set a precedent that would be useful in fighting the restrictions in other states.

So far it's only an injunction to keep the law from going into effect immediately. The case still has to go to trial. If the decision overturns the law the case would undoubtedly be appealed to the 9th Circuit Court. If the decision is as firmly written as the injunction and given the clear definition of "arms" from Heller, it will be interesting to see how the 9th Circuit manages to twist things to reinstate the law. Twisting Heller into knots to justify decisions that are clearly against it has become something of an art form recently.

If the 9th upholds the magazine ban, it would be appealed to the Supreme Court, who may or may not decide to hear it.

Originally Posted by DaleA

Or is it because California is actually making you get rid of over 10 round magazines?

The confiscation of personal property without compensation is another angle against the law.

[Gary L. Griffiths]

Next Step: CA petitions for an en banc hearing, case is reheard, Judge Benitez's ruling is overturned with extreme prejudice, and all CA gun owners who own 10+ round magazines are now felons! Win-win for CA!

[Al Norris]

This is a preliminary injunction that preserves the status quo while the case winds it's way towards trial. Since the case is still ongoing, the only thing to appeal is the injunction itself.

It may well be a "given" that the State will appeal the injunction, but it won't immediately go to an en banc court. What is the more likely scenario is that the State will file its notice of appeal and an emergency petition to stay the injunction. That is two separate actions.

Regardless of who is selected to be on the panel to hear the appeal, another (different) panel, will rule on the petition to stay the injunction. Whatever is decided about the emergency stay, will stand as the actual appeal winds its way through the process.

Meanwhile, most processes at the district court level will be stalled until the 9th circuit makes a final determination on the appeal. Should the state lose its appeal, then the state may petition for an en banc hearing.

We should remember that these hearings are only on the matter of the preliminary injunction. That is the only thing Judge Benitez has ruled upon.

[raimius]

True, although I think Gary's point is that if the state loses the case, it will eventually go for the en banc, which will twist all forms of logic (and Heller/McDonald) to rule in favor of the state.

[Al Norris]

Another twist to all of this, is that on Friday, June 30, US District Judge William Shubb, for the Eastern District of California, denied a preliminary injunction in the case, Weise v. Becerra.

This is a similar case filed by Calguns and the 2nd Amendment Foundation (SAF). Expect this to be appealed also.

I also suspect the cases may be consolidated, but that is not a given. Regardless, we now have two similar cases where the Judges have ruled exactly opposite to each other. Attached is the 23 page pdf.

edited to add: While I think that the Chuck Michel (NRA) case to be the stronger case, this may be entirely negated by opposing rulings.

[62coltnavy]

It does not matter how well written the opinion is, just as it did not matter how brilliantly simple was Judge O'Scanlain's original opinion in Peruta, as there is no doubt but that Chief Judge Stanly Thomas will find a way, no matter how lame, to overturn the decision. He will be undoubtedly ebulliently bolstered by the denial of cert in Peruta, and he knows full well that if the Supreme Court won't take a carry case, the most fundamental aspect of the Second Amendment, there is no way that it will take a case on magazine bans, any more than it took either of the two AR ban cases. enjoy the opinion while you can, as it will vanish in short order.

And just to add the latest scuttle butt: Justice Kennedy has already hired his clerks for the next term (but not the next), so he li8kely won't retire for at least another year.

[5whiskey]

Giving any weight to a referendum restricting constitutional rights is simply acquiescing to the "tyranny of the majority" a/k/a mob rule.

Exactly.

We have a winner! The Bill of Rights is thoroughly undemocratic -- and that's how it's supposed to be.

And we have another winner! I cringe at the word "Democracy." A true "Democracy" is when 51% of the population can vote to do whatever they want to the other 49% at any given time.

[publius42]

Went looking for the latest activity in the Duncan case.

http://michellawyers.com/wp-content/...-Deadlines.pdf

An order granting an extension for Duncan's brief to Sept 22. Two weeks ago.

Does anyone know if it was submitted or another extension granted?