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

[Metal god]

I don’t know what happened in that court room . However I have been in his courtroom and then read the transcript of that same hearing I was in . I can say without hesitation, the transcript does not give a full account of what happens in the court room , only what the parties directly involved say . It also does not have any context , nuance or tone being used . There is a lot missing in all this for sure .

If I had to guess , I’d say this is the anti’s doing what they can to discredit the judge right before his what are expected to be sweeping 2nd amendment decisions. I fully expect when those decisions are handed down . Not one mainstream media outlet will discuss the merits of the case/s but they will with in the first few sentences make sure everyone knows this is the same judge that had a 13 year old girl handcuffed for no good reason .

That said he may have went down the wrong path for a moment but I think it’s the former.

[Metal god]

I'm usually never this right so fast

Gavin Newsumes tweet

[OPC]

That's politics for you. I was aware of that tweet when I first posted (#99) the question of impact on the cases before Judge Benitez. Newsom can only sound off; to my knowledge his office has no authority over federal judges. I'd be (and am) more concerned that by making the investigation public, the Chief US Circuit Judge Mary Murguia referenced in the Reuters article is testing the waters to see if she can get away with re-assigning Judge Benitez's cases. As an infrequent observer of the courts, I do not have the legal experience or legal education to assess if my concerns have any basis in procedure or precedent.

[Metal god]

Wait a second, if you already had seen or knew about the tweet before posting here . When did the incident happen in the court . It now seems like an orchestrated effort by the anti community to defame the judge rather then them just happened to hear about it because it was a recent event .

This counties political leaders are really starting to concern me . The weaponization of everything is getting out of control. Based on my understanding of politics, my guess is they have been sitting on that court room “incident” for awhile waiting to release it at the most damning time .

[OPC]

It is relatively recent.

The incident occurred on Feb. 13 (according to "Law and Crime"), San Diego Tribune ran the story on Feb 28 (behind a paywall), Newsom tweeted on March 1.

[Metal god]

Yeah they ( anti’s ) got wind of it , then needed time to coordinate a response that would come after their strategic leak to the press .

[natman]

Originally Posted by Metal god

I'm usually never this right so fast

Gavin Newsumes tweet

Newsom's opinion varies according to whether he likes what Benitez does. When Benitez struck down the fee shifting that Newsom passed so it could be found unconstitional and thereby condemn Texas' abortion law (yes, CA politics is complicated!), he had this to say:

“I want to thank Judge Benitez. We have been saying all along that Texas’ anti-abortion law is outrageous. Judge Benitez just confirmed it is also unconstitutional,” Newsom said in a statement Monday.

But when Benitez declared California's AW ban:

California Gov. Gavin Newsom delivered an extraordinarily fierce rebuke Thursday of the federal judge who struck down California’s assault weapons ban, calling the judge a “wholly-owned subsidiary of the gun lobby and the National Rifle Association.”

No claim that the ban was constitutional, just a personal attack.

Newsom's latest is to announce that the state of California will no longer do business with Woolworths, because Woolworths won't ship abortion pills - to states where it's illegal to do so.

[44 AMP]

Newsom's latest is to announce that the state of California will no longer do business with Woolworths, because Woolworths won't ship abortion pills - to states where it's illegal to do so.

its Walgreen's (the drugstore chain) NOT Woolworth's (the original 5&10 cent stores...are they even still operating anywhere????)

And there you go, when a Judge rules on something they agree with, the judge is praised for being wise and scholarly and is doing a good job.

When that same judge rules some way they don't like, that same judge is now clueless, ignorant, (possibly scum of the earth) and not someone to be trusted or listened to with "vitally important matters".....

If it weren't for double standards, some people would have no standards at all...

[Tom Servo]

California Gov. Gavin Newsom delivered an extraordinarily fierce rebuke Thursday of the federal judge who struck down California’s assault weapons ban, calling the judge a “wholly-owned subsidiary of the gun lobby and the National Rifle Association.”

I follow the social media accounts of a few major gun-control advocates, and they are beyond peeved at Bruen. I thought they were angry after Heller, but this is different.

And when people get angry, they say inadvisable things they sometimes can't take back. As the lower courts start falling in line with Bruen, I expect quite a few outbursts like this.

Right now, President Biden is under a ton of pressure to renew the Assault Weapons Ban in some form. Even if it were to get through the legislature to his desk, SCOTUS would tear it apart. He must know that.

Problem is, Senator Biden was known for having a nasty temper behind closed doors. I can imagine he'll say something truly unfortunate in public if he doesn't get a win on gun control.

[natman]

Originally Posted by 44 AMP

its Walgreen's (the drugstore chain) NOT Woolworth's (the original 5&10 cent stores...are they even still operating anywhere????)

Oops, brain spasm. Woolworths has been out of business for many years. Autocorrect, yeah, that's the ticket, it was autocorrect.

[natman]

Originally Posted by Tom Servo

Right now, President Biden is under a ton of pressure to renew the Assault Weapons Ban in some form. Even if it were to get through the legislature to his desk, SCOTUS would tear it apart. He must know that.

SCOTUS has granted cert, vacated and remanded the Maryland AW ban back to the Maryland courts. Normally legislatures would wait until the case was resolved before creating any new bans.

Given that it's highly likely that the AW bans will be found unconstitutional, why are so many states rushing to legislate new bans? So that when they are overturned, politicians in those states can say "We tried to keep you safe, but that nasty Supreme Court wants your children to die" or words to that effect. Then they can lobby for packing the court.

[44 AMP]

Given that it's highly likely that the AW bans will be found unconstitutional, why are so many states rushing to legislate new bans?

Because until and unless they are struck down, they are the law. And they may be the law for years or even decades before a court finally rules on them.

So, they score points with the gun ban crowd for "doing something", and count every person who isn't shot as some one "they saved".

This will go on until enough people who cannot be ignored or labeled "extremists" have the spine to stand up and state the obvious truth that the problem is NOT inanimate objects, but PEOPLE willing to do harm and not caring about the consequences.

[armoredman]

Doesn't that actually violate the 16th Jurisprudence, that held unconstitutional laws are NOT laws if they are repugnant to the Constitution? That's what we need to go back to - if a law is challenged as unconstitutional, it needs to be held in abeyance until they can prove it doesn't violate the Supreme Law of the land.

[44 AMP]

That is a point, however, that's rarely done. And, I can see good reasons why its not regularly done.

I think the main reason would be because any law could be challenged by anyone who can file suit, and being required to hold a challenged law in abeyance until the entire legal process is run would, essentially, ensure NOTHING got done as long as there was some one with the cash and the stones to challenge it.

So, these things are ruled on, on a case by case basis. And, in that, we get individual judges interpreting things, which is what we pay them to do.

Remember that there is a difference between inconvenience and actual harm. And if it can be shown that there is actual harm happening or likely, that provides grounds for issuing a stay on enforcement of the law in question, until it is declared valid or not. However if the law is only an inconvenience to some, that may not be sufficient grounds to put a stay on enforcement during the period the challenge works its way through the court system.

We do see cases where one judge puts a stay on some part of a challenged law, and an appeals judge changes that ruling.

[armoredman]

Judge Benitez is taking his time....

[Metal god]

Yes he is but he has 4 second amendment cases he needs to rule on at this time - mag restrictions, assault weapons ban , ammo background checks and carrying billy clubs and other type weapons.

I’m sure there is a bunch of cross referencing to make sure one does not contradict the others as well as each has there own historical analysis so it will take some time . CA just submitted another brief in one of the cases referencing FL law restricting 18 to 21 year olds being prohibited from buying guns . I don’t know all the ins and outs on that law but believe it’s not even settled yet . I believe it just went e-banc so referencing a law that is not even settled law seems desperate to me .

[natman]

Originally Posted by 44 AMP

It would be logical that since the larger framework of review has been "reset" to a degree by the recent SCOTUS decision, cases, and decisions are being re-examined, and sending them back down to a court level where both sides have an opportunity to restate their arguments (in light of the revised review framework) would be the thing to do.

Tedious and time consuming, perhaps, but it does (hopefully) prevent an appeal based on a "lack of being able to argue...xxxx points".

Yes. And while it is frustrating, it's only fair that if you change the rules, you get a rematch. And SCOTUS has made it clear that they expect the cases that they sent back to the lower courts to be resolved quickly, at least by federal court standards.

[Tennessee Gentleman]

So, will all AWB in all the states go away? How many states ban so called Assault Weapons?

[44 AMP]

So, will all AWB in all the states go away?

Not until SCOTUS rules they have to. Recent decisions give me hope, but they will be fought tooth and nail by the people running various states, who are unshakably convinced their views are the only correct ones.

How many states ban so called Assault Weapons?

I suppose, technically, none. Not if by "ban" you mean that the people who have them must surrender them to the state. What several states have done is restrict them. Current owners are allowed to keep them, but (in most of those places) they cannot be sold, traded, or given away, in state. And in some of those places, your heirs are not allowed to inherit them, either.

And of course, new purchase is verboten as well.

[Tennessee Gentleman]

Originally Posted by 44 AMP

Not until SCOTUS rules they have to.

So, what you are saying is that the "common use" test in Heller would have to be specifically applied to the AR-15 by SCOTUS?

[Metal god]

So, what you are saying is that the "common use" test in Heller would have to be specifically applied to the AR-15 by SCOTUS?

Yes , if you want it nationally . If the Judge rules the law unconstitutional again . I say again because this court already had a full hearing on this specific case 3 years ago and ruled then the CA AW ban was unconstitutional . Note - this court used the text and tradition method to come to his conclusion the first time . Now that he has Bruen basically affirming his original decision . We in the firearms community believe he will rule the same way again .

"When" this happens it will only be binding in CA . However the 9th circuit will almost certainly put a stay on his ruling .

I will add to your question though , Why doesn't his ruling become national ? We see Federal judges ruling all the time impact the entire united states , usually with political or social issues but we do see it happen . Didn't the recent abortion pill ruling effect the whole nation yet it was just one federal judge in one state , Can that happen here ?

[Aguila Blanca]

Originally Posted by Metal god

I will add to your question though , Why doesn't his ruling become national ? We see Federal judges ruling all the time impact the entire united states , usually with political or social issues but we do see it happen . Didn't the recent abortion pill ruling effect the whole nation yet it was just one federal judge in one state , Can that happen here ?

No, we don't see federal judges making rulings that affect the entire country. A ruling at the district level doesn't even establish binding precedent. A ruling at the circuit court of appeals level establishes precedent that is only binding within that circuit. Another circuit court of appeals may decide a similar issue in the opposite way. When that happens, we have what is known as a "circuit split." The Supreme Court doesn't want the same law being applied differently in different parts of the country, so a high priority for the SCOTUS is to accept and resolve cases where there is a circuit split.

[44 AMP]

So, what you are saying is that the "common use" test in Heller would have to be specifically applied to the AR-15 by SCOTUS?

Not exactly, but sort of. The issues arises from a combination of what I call "court speak" and the various agenda driven people in different departments and levels of government (Fed, State, city, etc) believing that they can do any/everything not specifically and clearly prohibited by SCOTUS.

In District of Columbia v. Heller (2008), the U.S. Supreme Court held that the Second Amendment protects “arms ‘in common use at the time’ for lawful purposes like self-defense” and arms that are “typically possessed by law-abiding citizens for lawful purposes.”

Now things get a bit tricksy, because there is the actual ruling on the case (Heller vs. DC) which said DC could not ban handguns. The reasoning behind that ruling is explained by the "in common use" language. But its not the actual ruling, directly, its a part of it, and one that the anti gun people easily "break off" and essentially, ignore.

Additionally, the court speak of the explanation gives them what they see as a loophole. Translating the court speak (a bit) the part about items in common use, and the part about other gun control laws being "presumed legal (Constitutional) is related to the (intentionally) overlooked part of the explanation where they essentially said, "Since we're not looking at that, today, we will presume them to be legal, and the implied "until we do look at them, directly".

THIS is how the court works. They look at the issues, in a specific case, and make a specific ruling. THE REST OF THE COUNTRY grabs that specific ruling, or the part of it they want, and runs with it as a general rule.

One of the huge historical examples of that was the Miller decision on the 1934 NFA. That court ruled that "since we have been shown no evidence" (and, they weren't) that the sawed off shotgun in the case was not a milita weapon and therefore not protected under the 2nd Amendment.
That's literally, all they ruled, but the rest of the country took that to mean the entire NFA was Constitutional and we've operated on that ever since.

Another point, widely misunderstood by the general public, is that SCOTUS is not required, and will not "correct misinterpretations" of their rulings. Doing that isn't their job. That is the job of the lower courts. SCOTUS won't get involved, unless a specific case comes before them where an interpretation of a previous SCOTUS ruling is involved. And that is something that happens when there is a "circuit split" as well.

One of the things Heller said (boiled down a bit) is that DC could not ban an entire class of weapons. But "thou cannot ban" is NOT "thou cannot restrict" so we are in a situation where what we are sure the court meant and what others think the court meant are different, and the court will not say who is right, (again, not their job) until a they rule on a case that directly covers this issue.

I believe that until we get a SCOTUS ruling that specifically says "you may not restrict AR-15s (or "assault weapons" or some similar term) there will be people trying to restrict them. And, I suspect, that even if we got a ruling that said those exact words, we'd still have people trying to work around that.

All for our own good, of course...

[Tennessee Gentleman]

So, in declaring any AWB unconstitutional, they (lower courts) would apply the common use test? Since the AWB's I've read about are kind of vague how would that help you with the AR-15 or shouldn't it now be applied to ALL guns in common use?

[Metal god]

If it comes up again or maybe the CA Miller case ( the case this thread is about ) . The in common use wording will be said but it won’t be the substance of the ruling . I don’t even think it will say you can’t ban AW . I suspect it will say something like the semi automatic center fire rifle has been in common use since they were invented. Therefore they are protected under the 2nd amendment. Furthermore we do not believe banning features that don’t substantially effect the internal operations of the firearm shall be banned either .

This type of wording will destroy 99% of all AW bans because they ban semiautomatic center fire firearms with one or more of those “external” features . One of the newer anti gun arguments is that these so called features make it easier for criminals to use the weapon therefore under the guys of safety we need to ban these features . Several courts have already said that is not a good enough reason pointing out by banning those features you are actually making the firearm less safe for law abiding citizens to use said weapons .

The next thing will be standard capacity mags 17rd hand gun and 30rd rifle magazines. These are also in common use and I believe this judge is hearing a large cap mag case as well . He has already ruled the state can’t arbitrarily make up a limiting number with out evidence it has a relevance to safety . That was before Bruen , I have no idea how mag restrictions pass constitutional muster after Bruen . I’ve not read any anti post Bruen arguments on mag restrictions yet .