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

[44 AMP]

Constitutional rights cover principles and are not technology dependent.

agreed

My point is something more along the lines of "absence of evidence is not evidence of absence..", except that, sometimes, it is...

Slavery might not be the best example, but it WILL be one people will bring up. IT was something that was legal until it wasn't, and the law making it illegal being made in 1865 not 2018 doesn't change that.

But lets just stick to something closer to hand, magazines of over a certain arbitrarily chosen size limit. ENTIRELY LEGAL and unregulated UNTIL the law made them otherwise.

"False is the idea..that would take fire from men because it burns...or water because one may drown in it.." Cesaere Beccaria

Is this not what we are looking at the law doing here?? And why we challenge it??

[Metal god]

Lots going on in this case now , hope you all like reading haha

Plaintiffs response to spreadsheets 1 and 2

1- https://storage.courtlistener.com/re...2089.166.1.pdf

2 - https://storage.courtlistener.com/re...2089.166.2.pdf

States "5" page argument 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.

https://storage.courtlistener.com/re...2089.168.0.pdf

Both parties now have 10 days to file responses .

[natman]

Originally Posted by 44 AMP

agreed

My point is something more along the lines of "absence of evidence is not evidence of absence..", except that, sometimes, it is...

Slavery might not be the best example, but it WILL be one people will bring up. IT was something that was legal until it wasn't, and the law making it illegal being made in 1865 not 2018 doesn't change that.

But lets just stick to something closer to hand, magazines of over a certain arbitrarily chosen size limit. ENTIRELY LEGAL and unregulated UNTIL the law made them otherwise.

The test of "Text, History, and Tradition (THT) works like this:

The THT Test is more faithful to the Constitution because it focuses on the actual words of the Second Amendment. It then uses history and tradition to confirm the interpretation of those words, by determining how the right was understood when the Amendment was ratified.

https://firearmslaw.duke.edu/2022/05...-constitution/ [emphasis added]

So the first part is to look at the text of the Second Amendment. After Heller, Caetano and Bruen, SCOTUS is very clear that it protects an individual right to keep and bear arms, independent of militia membership. If the government wants to interpret the amendment otherwise, the burden is on the government to provide proof based on history and tradition AT THE TIME OF THE AMENDMENT. Modern laws do not apply.

[raimius]

https://storage.courtlistener.com/re...2089.168.0.pdf

So, their "argument" is that since booby-trap guns were banned, they get to keep their awb...?
Brings a new meaning to "grasping at strings!"

[zukiphile]

Originally Posted by Metal god

States "5" page argument 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.

https://storage.courtlistener.com/re...2089.168.0.pdf

Thank you for the links.

My recollection from school is from property class. I thought they were described as "spring guns" and the point was that they were very much disfavored in english common law because it shows a plan to injure someone for a transgression that might not merit deadly force. At the time, I thought these must have been a common type of trap for this to be a widely recognized subject in common law.

A spring gun or trap gun isn't a specific configuration of a firearm, but a method of constructing a trap that involves a firearm.

[Aguila Blanca]

Originally Posted by zukiphile

A spring gun or trap gun isn't a specific configuration of a firearm, but a method of constructing a trap that involves a firearm.

Now THAT's interesting. I have encountered the term "spring gun," but I can't recall if it was in my state's statutes or when I was compiling a tabulation of anti-gun provisions in municipal zoning ordinances across the state. I assumed the term was a reference to BB guns such as the Daisy Model 25, which uses a spring to power the piston.

https://www.daisy.com/product/model-25-pump-bb-gun/

[Spats McGee]

I haven't had time to catch up on all the reading here (or much of anywhere, really...), but zuk may be referring to what I would call a "booby trap."

[zukiphile]

Originally Posted by Spats

...zuk may be referring to what I would call a "booby trap."

Yes, and involving a firearm.

The idea was that a landowner could rig a door or gate to shoot when someone entered.

Originally Posted by Aguila Blanca

I assumed the term was a reference to BB guns such as the Daisy Model 25, which uses a spring to power the piston.

I think they were referred to as "spring guns", but it was an 8AM class and a long time ago. To me, a "trap gun" is a wildly expensive shotgun.

[Metal god]

Wow , I just read that brief you all have been discussing. OMG is that really the best argument they have ? The judge asked for there best “5” arguments and they could only come up with one and the “one” is very week as far as I read it .

I really thought there were better arguments, not that I thought of any but figured smarter people then me could . I guess all you saying these CA restrictions are all going away because of Bruen were right . I mean if the trap gun designed to go off at anything or anyone that trips it is there best argument . I don’t see how the 9th circuit will have anything to work with to over rule what this judge is surely about to do .

[Sharkbite]

because it shows a plan to injure someone for a transgression that might not merit deadly force.

Im wondering how a “castle doctrine” would effect this? The presumption is that someone forcefully entering your home means to do you harm. So, someone kicks in my front door in the middle of the night and my booby trap goes off, killing them….

With the presumption that they meant to do me harm….hmmmmm. Just something for the legal eagles to ponder.

[Aguila Blanca]

Originally Posted by Spats McGee

I haven't had time to catch up on all the reading here (or much of anywhere, really...), but zuk may be referring to what I would call a "booby trap."

Understood. That's why I posted, because when I read the statutes (or ordinances?) that prohibit "spring guns" the notion of booby traps never occurred to me.

Here's an example of where I have encountered the term. This is from a municipal ordinance in my state:

It is unlawful and is prohibited for any person to store, sell, offer or expose for sale at retail or have in possession with intent to sell at retail or with intent to use within the limits of the city any air gun, rifle or pistol, spring gun or pistol or any implement not a firearm which impels with force a pellet of any kind.

[Metal god]

There spring gun or booby trap restrictions were more likely put into law not because of the design but rather the arbitrary nature on who or what it can harm . Lets take the example from above that someone is breaking into your home and you were lucky enough to set the trap on the actual door/window in which they used to enter . Ok great worked as intended but is that how everyone will set that up . What about setting those things up on the curtilage of your property ? Now you are booby trapping areas of your property that reasonable people would feel it should be safe to move in without there heads being blown off . Like maybe the mail man , gardners, pool boy , friends and neighbors, neighborhood animals, family members etc . I believe it’s those areas that the ordinance is trying to prevent you/us from setting up traps/trap guns and booby traps . Mostly because of the arbitrary nature of the harm that can and “likely” will occur to people otherwise there legally.

Take that one step further these types of traps are generally if not completely out of the persons control who set them up once set up . Meaning once set up you really have no idea who or what will set it off . Sure depending on where it’s set up you might have an idea who or what it may harm but that’s not enough . That is very different from an attachment installed on a firearm like a flash hider , suppresser , collapsible stock etc which still requires the the end user to be in complete control of the weapon to include when , where and “if” said equipped weapon is to be used .

To me the AW ban and the trap gun ban really have virtually no similarities in reason or purpose for the regulations respectively. It really blows me away thats the ONLY historical analogy they came up with .

EDIT I thought the court ordered there 5 best arguments . After rereading the order I now see he simply asked for there best argument ( singular )

[44 AMP]

Not reading through the volumes of stuff at this point, and simply going on the context of the recent posts I would point out a couple things...

"Spring guns" refers to guns operated by a spring (such as most air rifles) and is a really poor choice of terms if used to mean a gun set up as a booby trap.

Setting up a gun as a booby trap is mentioned in older laws (including some Fed ones, IIRC) and the term used then was "set gun".

The reasoning "set guns" are illegal is simple, and has to do with the employment of deadly force. Setting up a booby trap to protect your PROPERTY simply doesn't meet legal requirement for justifiable use of deadly force.

Doesn't matter if it is a gun, a grenade, a crossbow, a deadfall, or another device, if you are NOT THERE, you CANNOT judge if deadly force is justified, and if you are not there, to be at risk, and to make the judgement, then under the law, use of deadly force is NOT justified, or justifiable, and YOU are liable for any death or injury that results.

And, putting up a sign isn't enough to CYA, either. Nor does it matter if someone has to physically break through a barrier to get to the place where the trap is. You WILL be found liable and guilty for creating the situation and ALL its possible consequences.

[Spats McGee]

Originally Posted by Aguila Blanca

Understood. That's why I posted, because when I read the statutes (or ordinances?) that prohibit "spring guns" the notion of booby traps never occurred to me.

Here's an example of where I have encountered the term. This is from a municipal ordinance in my state:

And I think you read it correctly. My gut reaction to the ordinance you posted is that it refers to something the Daisy BB gun described above, not a booby trap.

[HiBC]

I recall reading of these booby trap guns long ago. At the time they were called "set guns". The message was always "They are illegal"

In some cases they were used as predator control. In others it was like setting claymore mines to protect your garden.

Its pretty hard to make the case a device can justify being in mortal fear.

A curious child can trigger a set gun.

Bad idea.

[44 AMP]

It is important to remember that the people making laws and regulations are seldom subject matter experts in the technical terminology of items they are regulating. The often get terms wrong, either through simple misunderstanding or intentionally misinterpretation to support their agenda. And, they also create terms, with their own definitions out of "whole cloth" (thin air) but once enacted into law, those terms and definitions become valid legal terms.
(think "assault weapon" for a recent example)

I recall one case (though I no longer remember where) that a "simple misunderstanding" led to a ban on slingshots as deadly weapons. Yes, the Y-fork rubber band powered kids slingshot was being banned as a deadly weapon!! Why??

Because the legislator(s) involved were "updating" a 200yr old ordinance and it included "sling shots"!!!

Except it didn't. What the original regulation said was "slung shot". There is a difference, a big one. But the lawmakers didn't know that, and figured "slung shot" was the old way of saying "slingshot". It's not, and was so pointed out to a court and slingshots were then removed from the law.

Not all of the laws depriving or restricting our rights is done with deliberate intent (though most is, I feel), sometimes its just due to simple ignorance on the part of simple people who happen to have won the popularity contest that got them the job of writing law....

[Metal god]

Plaintiff's response brief

https://storage.courtlistener.com/re...2089.169.0.pdf

States response brief

https://storage.courtlistener.com/re...2089.170.0.pdf

All briefs are in and it's now in the judges hands once again . He can order more briefs , hearings or make a final ruling at any point moving forward. Based on his previous ruling in this case before Bruen and being in the court room a few times watching him work . My guess is he makes a final ruling inside of 6 weeks and does not stay his own order like he did the first time .

[armoredman]

Fingers crossed.

[Metal god]

The last couple pages of the states brief address there trap gun argument. In a nut shell there argument is that , the law at the time banned accessory’s added to the firearm which has been there general argument all along . Pointing out at the time the firearm was not banned nor were the accessory string , pins , springs etc were not banned either . What was banned was the configuration of the firearm and said accessories together.

When said that way there analogy makes a little more sense . Im not buying it but there argument makes more sense now .

[tangolima]

Same here. Can't wait to take those dorky compliance winky dings off my rifles. The fin grip is the worst. I went out of my ways to avoid it.

Bless the Saint.

-TL



Sent from my SM-N960U using Tapatalk

[Metal god]

Don't forget this lawsuit does not address the California AW registry/registration aspect . There has been some debate on that aspect that seems conflicting . Some seem to think if the judge in this case finds the AW ban unconstitutional they can configure their rifle back to "featured" ( pistol grip , flash hider , adjustable stock etc ) problem is when one does that they become a person in possession of an unregistered AW in CA . Some say that will force the state to reopen the now closed registry . OK that does not mean much to me because I went featherless to avoid registering my so called AW in the first place . Even with a win in this case I'm not going to register my rifle if there is any legal way not to . To the point of disassembly If that's all that's left . at this point there is no constructive possession aspect to the laws so some think removing the upper from the lower is good enough because an assembled lower is not a functioning semi auto anything .

I personally will not do anything at first with my featureless rifle until it's crystal clear what is legal like the pistol brace ruling has made clear

[tangolima]

Oh it was my simple mind trying to think. If the assault rifle ban is unconditional, it wouldn't break any law to possess such a rifle, would it? That should make the register moot.

-TL

Sent from my SM-N960U using Tapatalk

[Metal god]

Moot-ish I guess , you can still own them . What about those that bought there unregistered lowers before 2014 and went featureless to avoid the registration , not so moot for them ? All firearms sold in CA are required to be registered since 2014 and all handguns sold in CA since 1998 or so have been required to be registered . There is nothing to date saying registration of a firearm is unconstitutional and CA has a separate assault weapons registry that prohibits the possession of an unregistered AW as defined in section bla bla . This case will allow the sale , importation etc of AW in CA . However every single one of those will be required to be registered upon transfer just like all other firearms are registered when transferred now . Except the AW will go into a second searchable AW registry as well . If anything , one can argue since the firearm regardless of type pistol or long gun is already registered automatically now . Why is there a need for a second registration of a firearm as an AW when that same weapon was already registered in your name when you bought it originally .

So in theory not only will CA be required to reopen the registry it will need to stay open as AW will be bought and transferred daily moving forward . Will they do as the pistol brace reg is doing and grant a grace period for anyone who wishes to convert back to featured ? Likely yes but that does not mean you won't be required to register you firearm if you convert it back to an AW as defined by CA statute .

At least that's how I see them doing it . Spats Mcgee is a lawyer here in CA I believe maybe he can chime in on this for some clarification . Regardless I'm not doing anything with my rifle until it's as crystal clear as it can be .

[OPC]

Judge Benitez is in the news regarding his conduct on the bench.

CNN report: Misconduct Investigation of Federal Judge

Reuters report: California Federal Judge faces review

The Reuters report suggests his investigation should have been kept confidential and he is being treated differently.

I wonder if our learned members can shed some light how these matters affect the cases assigned to the judges... like Miller vs. Bonta?

[zukiphile]

Judges have control over their courtrooms and judicial misconduct isn't rare. A common scenario is a judge putting an attorney in lock up for an argument the judge doesn't want to hear or denying counsel to access to the record for the purpose of noting grounds for an appeal in the record.

I would consider the judge's conduct as related in the Reuter's piece to be misconduct. He isn't there to send a marshal to teach the girl a lesson.

The "necessary to maintain public confidence in the judiciary's ability to redress misconduct" rationale for departing from normal procedure stinks. If transparency were necessary for that purpose, then confidentiality wouldn't be the rule.

This is an area in which many of your ordinary intuitions may not prevail. For instance, though there is a 1st Am., attorneys can be disciplined for saying something like "There can be a lot of self-dealing and politics in regulation of judicial misconduct" if that were found to undermine public confidence in the judiciary.