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

[Tom Servo]

I'm certain it will be argued by someone(s) that the agenda was to deny RKBA based on race

There's quite an academic history on the idea.

• The Racist Roots of Gun Control by Clayton Cramer, which got the ball rolling
• The Second Amendment: Toward an Afro-Americanist Reconsideration Reconsideration, by Cottrol and Diamond
• Racist Gun Laws and the Second Amendment, by Adam Winkler

The last one is notable because Winkler is usually the go-to guy for media interviews on gun control and history. Even if the arguments aren't made in court, there will no doubt be briefs citing these papers.

[Metal god]

I've read that first link then jumped to the third and I'm about half way through that . I'm not buying there argument that the anti's can still use racist laws from the past because they were banning dangerous or unvirtuous people which is basically the same thing as banning felons or mentally ill people nowadays . . What the hell is that kind of argument , I'll tell you - IT'S RACIST !!!! I'd love for the state to make that argument . OMG there is NOTHING in your skin color that indicates how unvirtuous or dangerous one might be and to think so is the very definition of racism . Anyone trying to compare banning someone based on there skin color or social status and someone proven to be a danger to society is comparing IDK apples to skyscrapers ??? Trying to argue we'll just take out the "backs can't" part and just add "anyone who" because it's basically the same thing is ridiculous . Oh please PLEASE have the state make that argument .

I wish I had the vocabulary to make my point stronger , I just know what that sure looks like to me .

[Metal god]

Here is the transcript from the hearing on 12-12-22 . Worth a read , I left a lot of nuance out and a rather large section in the beginning I did not even report on.

https://drive.google.com/file/d/1ZlV...-Sj-fpxev/view

[Aguila Blanca]

Aaaah!

So the judge asked BOTH sides, in all four cases, to submit spreadsheets tabulating the history of "restrictions" (his term) on the 2A. He didn't request this just from the State. So if the State somehow "overlooks" some laws or regulations that were later overturned or repealed, hopefully one or more of the plaintiffs' attorneys will include that in their analysis.

[Metal god]

Yeah it’s a joint effort I guess . The plaintiffs didn’t want to participate at first stating the burden was on the state but eventually said they will take a look at what the state comes up with and note any disagreements or absences . Which will be taken up at another time if need be . All parties acknowledged that the state was better equipped to find such information and I believe the burden was for the most part put on the state to come up with the spreadsheet . I do agree it would be pertinent for the plaintiffs to do as much research as I can because the state is not going to do them any favors .

I was wondering what the plaintiffs are going to do about the 20th century spreadsheet. The judge ok’d it but made it clear he did not see any relevance of it . So what should the plaintiffs do with that with the limited 25pg brief . What happens if they basically take the judges lead and not say much about but on appeal the 9th ends up putting great weight behind the 20th century spreadsheet.

[Metal god]

The spreadsheets are in

https://storage.courtlistener.com/re...2089.163.1.pdf

https://storage.courtlistener.com/re...2089.163.2.pdf

[Aguila Blanca]

Seriously? The state started with 1383 England?

Gimme a break.

[ballardw]

Folks really didn't like Bowie knives or Arkansas Toothpicks.

I, as not a lawyer in any form, would wonder if the passing of other laws later for such things as concealed carry, constitutional carry should be noted in the repeal column as voiding restrictions on carry of pistols for defense.

[Tom Servo]

Notice this text in all the regulations passed within two decades of ratification:

Prohibited “any Negro or Mulatto slave”

This is the essence of gun control, and I can't believe they're actually using these statutes to justify their actions.

[Aguila Blanca]

Having grown up near New Haven, Connecticut, I feel fairly confident that the 1890 ordinance the state listed in the second link is not in effect and has not been in effect in my lifetime -- yet they don't show it as having been repealed.

[Metal god]

I can't believe they're actually using these statutes to justify their actions.

I don't think they are , They are just showing laws that were implemented . I can't for a second think they will actually use those as precedent in there briefs as favorable to there argument , although I hope they do .


What I am seeing as I read through this spreadsheet. Is that there is a clear precedent without repeal or challenges of many Second Amendment restrictions . No it doesn’t appear that there are any that seem to be nationwide but there is clear evidence that just about every state did some sort of restrictions . That seems like a clear tradition to me especially for those of us that believe states have sovereignty over their own territory .

I’ve only read through 12 pages so far so I could be wrong but there definitely seems to be a pattern here . To be honest I'm a bit surprised how many of those laws were not repealed or challenged at all . Is that to mean they are all still good law now ? Or has the state left out other laws that make those irrelevant ?

[Aguila Blanca]

Originally Posted by Metal god

I’ve only read through 12 pages so far so I could be wrong but there definitely seems to be a pattern here . To be honest I'm a bit surprised how many of those laws were not repealed or challenged at all . Is that to mean they are all still good law now ? Or has the state left out other laws that make those irrelevant ?

But you are supposing that they have not been repealed.

The second spreadsheet lists an ordinance enacted by New Haven, Connecticut, in 1890. I grew up near New Haven -- my mother's family were from New Haven. I happen to have a recent book that enumerates all the anti-gun, anti-weapon, and anti-hunting ordinances in all towns in Connecticut. So I looked up New Haven -- and I didn't find the ordinance shown on the spreadsheet. Could the editor have missed it? Perhaps. But I know the book was carefully researched, so I'm inclined to doubt it.

If anything, it may be an ordinance that fell out of use and is no longer codified with the city's ordinances, but which perhaps was never formally repealed. I don't know what the legal status is of an ordinance that hasn't been repealed but which doesn't appear when a person searches the ordinances.

[Metal god]

Correct , I’m assuming regardless of when a law or ordinance was repealed or challenged it should be noted in the repeal or challenged section when originally enacted .

[Metal god]

Just found Plaintiffs disagreements spreadsheet that challenges the states spreadsheet , didn't realize they were going to have one of there own .

https://michellawyers.com/wp-content...t-Statutes.pdf

EDIT , I should note that this spreadsheet was submitted in the Duncan vs Bonta case . Which is the CA large capacity magazine case . I'm just now starting to read it so not sure if they are addressing all 4 cases that were co-mingled in one spreadsheet or if this spread sheet is specific to the Duncan case . FWIW at least 3 of the 4 cases are being represented by the same law firm , maybe all 4 .

EDIT 2.0 this spreadsheet only addresses Duncan

[Metal god]

Looks Like Plaintiffs in the Miller case (AW ban) have chosen to wait until defendants response to the spreadsheet Looks like there will not be a disagreement spreadsheet in this case like there is in Duncan .

https://storage.courtlistener.com/re...2089.163.0.pdf

Originally Posted by link above

On January 4, 2023, undersigned counsel for Defendants emailed
surveys of laws that Defendants have determined are relevant to this action. On January 10, 2023, George Lee, counsel for Plaintiffs in this action, emailed the following response: “You may indicate to the court that due to the length of defendants’ surveys, plaintiffs will reserve all objections to the form of the surveys, and the relevance of the purported statutes contained therein, until the filing of their responsive brief in thirty (30) days per the court’s order of Dec. 12, 2022 (ECF
161).”

[Aguila Blanca]

Originally Posted by Metal god

Just found Plaintiffs disagreements spreadsheet that challenges the states spreadsheet , didn't realize they were going to have one of there own .

See posts #53 and 54.

Whether they were required by the court to submit one or not, the plaintiffs attorneys would have to be nuts to allow the defense (the state) to submit such a compilation without both countering it, and fact-checking it.

[Metal god]

Filed by the court

MINUTE ORDER issued by the Honorable Roger T. Benitez: The State defendants are directed to file a brief which identifies the best historical regulation that is a proper analogue and relevantly similar to a statewide prohibition on possession of a firearm with listed features. The brief shall be limited to five pages and shall be filed with the brief currently due 30 days after the filing of the law list. (no document attached) (gxr) (Entered: 02/07/2023)

What I don’t see is a historical timeframe in which these laws must have been relevant. He ordered the same basic thing respectively for each of the 4 co-mingled cases .

[zukiphile]

Originally Posted by Metal god

What I don’t see is a historical timeframe in which these laws must have been relevant.

I read "a proper analogue and relevantly similar" as covering a lot of ground, including the time in which the asserted analogue is framed.

If we were the court, we would not want to word the request so specifically that the state would produce an answer that didn't work, but then argue that the example doesn't constrain them because the court's standard was too narrow. Letting the party put its best metaphorical foot forward robs them of an excuse on appeal.

[44 AMP]

While I understand the importance of looking at the historical framework, particularly in general terms, what I don't see is how they can be used to apply to current cases involving literally, things that did not exist in the past.

Nor do I see the point looking at laws from the distant past that support things that no longer exist.

Honestly, I don't get the argument as applying to specific modern things. How does any law done before "High capacity magazines" existed have any real bearing on such a case today? Is it, can it? be just the past being used to cite the regulatory authority of the state, over anything it decides to regulate or ban??

Nobody objected to the "high capacity ammunition feeding device" ban of 1848. Why? Because there was no such thing then or laws regulating such things.

Nor do I see something being legal in the past as a complete blanket covering everything today. Perhaps, firearms are a special matter, but what I see as a poor argument is "if it wasn't illegal in 1789 it shouldn't be illegal now" simply because of the guaranteed rebuttal argument about slavery being legal in 1789....(or pick any date, on any subject prior to the law making it illegal)

So, just how is this whole "historical framework" thing supposed to work?

[zukiphile]

Originally Posted by 44 AMP

Is it, can it? be just the past being used to cite the regulatory authority of the state, over anything it decides to regulate or ban??

I wouldn't see an example that broad as "a proper analogue".

Originally Posted by 44 AMP

Nobody objected to the "high capacity ammunition feeding device" ban of 1848. Why? Because there was no such thing then or laws regulating such things.

I think a limitation of indians and eskimos to use of muzzle loaders after breach loading became the norm is a pretty good analogy for a law banning magazines over seven or ten rounds. The problem with that example is that it's a great analogue of a bad law, a law that is bad because the intent to disarm a population substantially is clear. You can use a firearm, but only an inferior one reads to me like an imposition on the right to have arms.

Originally Posted by 44 AMP

Nor do I see something being legal in the past as a complete blanket covering everything today. Perhaps, firearms are a special matter, but what I see as a poor argument is "if it wasn't illegal in 1789 it shouldn't be illegal now" simply because of the guaranteed rebuttal argument about slavery being legal in 1789....(or pick any date, on any subject prior to the law making it illegal)

So, just how is this whole "historical framework" thing supposed to work?

Slavery seems like an awfully poor rebuttal since we fought and won a war over it and then changed the COTUS.

I conceive of the Heller/Bruen test of text informed by history to ask two questions in series. 1) What does the text of the 2d Am. read? and 2) what did people at the time think it meant?

I think that if in the early 19th century there were no laws against free men carrying repeating arms, it's reasonable to wonder whether that's because no one thought the federal government had the authority to prohibit them. On the other hand if there were laws against possession by indians and slaves, the analogy suffers from our change in the way we view the rights of people in those groups.

It isn't just a verbose way to say "What part of shall not be infringed confused you?", but it does challenge people who draft innovative limits on the right to tether their creativity to the text as understood when ratified.

[44 AMP]

I think a limitation of indians and eskimos to use of muzzle loaders after breach loading became the norm is a pretty good analogy for a law banning magazines over seven or ten rounds.

I can see it being a good analogy for banning magazines, but come on, 7, 10, 30? 1?! pick a number, for goodness sakes... (and not you, personally, Zuki, I mean the people writing that stupid crap and making it law)

Slavery seems like an awfully poor rebuttal since we fought and won a war over it and then changed the COTUS.

Not so sure about that, its a perfect example of something that was legal, until it wasn't. Fighting a war, and changing the Constitution is what it took to make it illegal, in the entire United States.

Slavery was STILL LEGAL until we changed the Constitution. Lincoln's Emancipation Proclamation ONLY freed the slaves in states which were in rebellion against the Federal govt.

Look at all gun control, from complete bans to various restrictions, everything they cover was legal, ONCE, but became illegal after a law /ordinance was passed making it so.

I think it is more than a tad ridiculous that various govts (including the Fed with its now sunset AWB) making the ownership if a spring loaded metal or plastic box above a certain arbitrary size a crime.

One thing I noticed in the recent movie "News of the World" that I had not realized before but was a major point in that movie, is how arms were restricted in various ways to former Rebels during the Reconstruction after the Civil War.

In that movie it pointed out how (in the location it was set, Texas, I think) that despite the war being over, and former Rebels having sworn allegiance to the US, they were for some period of years, barred the possession of arms firing bullets. Shotguns with bird shot were permitted, but not slugs, pistols, revolvers or rifles.

Where would that kind of law fit in the historical review process??
My questions aren't intended to convey any kind of approval for the things in the past that were unquestionably considered wrong today, what I'm wondering is what use is their consideration in judging law, today??

[zukiphile]

Originally Posted by 44 AMP

Not so sure about that, its a perfect example of something that was legal, until it wasn't. Fighting a war, and changing the Constitution is what it took to make it illegal, in the entire United States.

Slavery was STILL LEGAL until we changed the Constitution. Lincoln's Emancipation Proclamation ONLY freed the slaves in states which were in rebellion against the Federal govt.

Alright, you've convinced me. The 2d Am. doesn't prohibit slavery.

If we have a war of state against state and brother against brother on the issue of bayonet lugs and vertical pistol grips extending below the stock, then put those changes in the COTUS, a court should acknowledge those changes in weighing the legitimacy of those restrictions.

Originally Posted by 44 AMP

One thing I noticed in the recent movie "News of the World" that I had not realized before but was a major point in that movie, is how arms were restricted in various ways to former Rebels during the Reconstruction after the Civil War.

In that movie it pointed out how (in the location it was set, Texas, I think) that despite the war being over, and former Rebels having sworn allegiance to the US, they were for some period of years, barred the possession of arms firing bullets. Shotguns with bird shot were permitted, but not slugs, pistols, revolvers or rifles.

Where would that kind of law fit in the historical review process??

I'm a yankee, but that era really put the tyrannis in sic semper tyrannis.

In this writer's opinion, there was a lot of balance and insight about human nature in the COTUS. We lost a lot of that wisdom in the Jacksonian revolution, the Civil War, the New Deal and WWII.

In looking for proper analogues, I think it's important to remember that the current restrictions are applied to free citizens, not defeated aborigines, slaves and vanquished rebels.

Originally Posted by 44 AMP

My questions aren't intended to convey any kind of approval for the things in the past that were unquestionably considered wrong today, what I'm wondering is what use is their consideration in judging law, today??

Maybe the use is to show that we don't disarm people we trust or respect.

[44 AMP]

Maybe the use is to show that we don't disarm people we trust or respect.

Isn't that the fundamental principle of all gun control? (and all other "social control?") The ruling class neither trusts, nor respects the underclasses, despite the constant and voluminous lip service about how, and what they do is for the good of the people, etc., its actual performance in realty shows otherwise.

[Metal god]

44 I was thinking that same thing today , how do we compare laws that could not of existed because the items were not invented yet . Couple things there we might look for as zuk points out similar laws that may have anything close or if there were similar things in existence at the time, and there were no laws prohibiting them would seem to be a tradition also . Like belt fed or Gatlin gun types . Meaning firearms that could shoot multiple rounds in a row but not necessarily an actual round count . Meaning were there guns around up into the 1880’s capable of firing multiple rounds in quick succession . If yes , were there any laws banning those gun because they could fire rounds quickly. If not then that to me would show a tradition of allowing/not banning such things throughout history . I believe that would be a good argument against banning “high cap” mags .

So you don’t need an exact just something that is a reasonable comparison . The question will be what is or will be the reasonable comparisons the state comes up with and will the judge buy them .

[natman]

Originally Posted by 44 AMP

While I understand the importance of looking at the historical framework, particularly in general terms, what I don't see is how they can be used to apply to current cases involving literally, things that did not exist in the past.

Nor do I see the point looking at laws from the distant past that support things that no longer exist.

Honestly, I don't get the argument as applying to specific modern things. How does any law done before "High capacity magazines" existed have any real bearing on such a case today? Is it, can it? be just the past being used to cite the regulatory authority of the state, over anything it decides to regulate or ban??

Nobody objected to the "high capacity ammunition feeding device" ban of 1848. Why? Because there was no such thing then or laws regulating such things.

Constitutional rights cover principles and are not technology dependent. SCOTUS covered this in DC v Heller:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. DC v Heller, page 8

Originally Posted by 44 AMP

Nor do I see something being legal in the past as a complete blanket covering everything today. Perhaps, firearms are a special matter, but what I see as a poor argument is "if it wasn't illegal in 1789 it shouldn't be illegal now" simply because of the guaranteed rebuttal argument about slavery being legal in 1789....(or pick any date, on any subject prior to the law making it illegal)

So, just how is this whole "historical framework" thing supposed to work?

Historical framework in this context only applies to constitutional rights. First, a given activity, such as owning a firearm, has to be determined to be protected by the constitution. Then the burden is on the government to establish that there is an historical analogue to the law in question, which may be grounds for the law to stand.

If there's no constitutional protection, historical framework does not apply, at least not in the same way.

Slavery is a poor example because it was abolished by the 13th Amendment in 1865. So the fact that slavery was legal in 1791 has no effect on its being illegal now.