CA Dunkan vs Bonta High capacity magazine ban UNCONSTITUTIONAL

[Metal god]

The ruling here https://storage.courtlistener.com/re...3515.149.0.pdf

This from the start of how we got here

Originally Posted by From link above

We begin at the end. California’s ban and mandatory dispossession of firearm magazines holding more than 10 rounds (California Penal Code § 32310(c) and (d)), as amended by Proposition 63, was preliminarily enjoined in 2017.1

That decision was affirmed on appeal.2 In 2019, summary judgment was granted in favor of Plaintiffs and § 32310 in its entirety was judged to be unconstitutional.3 Initially, that decision was also affirmed on appeal.4

However, the decision was re-heard and reversed by the court of appeals en banc. 5

In 2022, the United States Supreme Court granted certiorari, vacated the appellate en banc decision, and remanded the case.6

The court of appeals, in turn, remanded the case to this Court “for further proceedings consistent with New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

IT IS HEREBY ORDERED that:
1. Defendant Attorney General Rob Bonta, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code § 32310.
2. Defendant Rob Bonta shall provide, by personal service or otherwise, actual
notice of this order to all law enforcement personnel who are responsible for
implementing or enforcing the enjoined statute. 3. This injunction is stayed for ten (10) days from the date of this Order.

IT IS SO ORDERED.
Date: September 22, 2023

I'm still reading through it but wanted to point this little nugget out that might be a spoiler alert for the AW ban this same judge is about to rule on shortly

Originally Posted by From link above

So, the State must demonstrate that its extreme ban is consistent with this Nation’s historical tradition of firearms regulation. As explained below, there is no national tradition of prohibiting or regulating firearms based on firing capacity or ammunition capacity.

I'll have more to say after reading more but wanted to get the good news up for you all .

[LeverGunFan]

From news reports the ruling will not take effect for 10 days, to allow California to file an expected appeal. It's probable that this will be tied up in the courts for a few more years; even if California ultimately loses on appeal, firearm owners are still prohibited from acquiring greater than 10 round magazines while the court actions play out.

[Aguila Blanca]

Thank the deity of your choice for Bruen.

Yes, enforcement is stayed for ten (10) days, but after ten days the decision will be in effect unless the Circuit Court issues a further stay while they consider an appeal. Meanwhile, the California AG is required to notify all law enforcement agencies that the magazine capacity law is unenforceable. Even if an appeal is submitted (which it probably will be), I would anticipate that a lot of police departments or, at least, individual officers may be hesitant to enforce it for fear of being sued -- and losing.

[Metal god]

This case (directly after Bruen) was granted cert by SCOTUS , which they promptly vacated the the 9th circuit en-banc panel decision and remanded back to them . The 9th then remanded it back to the district court of appeals which is where this ruling is coming from .

Although I don’t disagree that the 9th circuit could drag this out . That fact that SCOTUS has already had a hand in this case telling the 9th they got it wrong the first time with the GVR . Makes me think (hope) they got the message and will move on.

This judge is about the rule on a AW ban case , ammo background check case and a billyclub case . All 4 cases were argued so similarly in all the briefs that he actually combined them all to be heard at the same time . I actually went to the hearing and it was very interesting.

This judge has already ruled on two of these cases several years ago . Bruen validated those rulings and there is little evidence his mind has change , in fact based on what I’ve read in this ruling so far . I expect the thorough SmackDown on the remaining 3 cases .

[MarkCO]

Good.

[tangolima]

Bless the Saint!

I'm abating my breath waiting for outcome of Miller V Bonta.

-TL

Sent from my SM-N960U using Tapatalk

[Metal god]

To clarify enforcement, yes there is a stay but this whole thing has been on a stay . What does that mean . When this judge originally ruled on this case back 4+ years ago he did not stay his own order and it took the state a week (7 days) to get his original ruling stayed . This resulted in what we here in CA call freedom week which resulted in thousands if not hundreds of thousands of high cap mags to be purchased here in CA for those 7 days . So when the original order was ultimately stayed there was a provision that any mags bought during freedom week were not subject to any enforcement of the mag ban . So although there “is” a high cap mag ban in place right now you can currently posses them . You can’t however import , manufacture or sell them in CA for at least another 10 days .The AG has released a statement stating he intends on filing an appeal. I’ve read the AG in fact has already filed something, not sure if its just something letting the court know the state intends on filing an appeal or what .

[tangolima]

Standard capacity magazines. 10-round are neutered capacity magazines.

-TL

Sent from my SM-N960U using Tapatalk

[MarkCO]

Originally Posted by tangolima

Standard capacity magazines. 10-round are neutered capacity magazines.

In many of the Statutes, they have been using the term, LCM (Large Capacity Magazine) and define those as anything over their favored number. Usually 10 or 15.

I continue in my testimony to use the term standard capacity and restricted capacity. I also say, in my testimony, that MSR (Modern Sporting Rifle) and AW (Assault Weapon) are political terms.

[44 AMP]

I never really understood "modern Sporting Rifle" and thought it was a weak and nebulous term, at least to me.

To me a modern sporting rifle is any metallic cartridge rifle using smokeless powder used for sporting purposes. I consider black powder and of course muzzle loaders in the "antique" class, but again, that's just me.

I know quite well, when and why the term "Assault weapon" was created, and do note it applies only to certain semi automatic firearms. Since its introduction in law in 1994, the definition of which firearms it covers has been expanded, over and over.

I agree with the terms "standard capacity" and "restricted capacity" TO me, standard capacity is what ever size the manufacturer equips the gun with as their standard. When I joined the Army, standard M16 mags were 20 rnds. A few years later, the standard was 30 rnds.

Note also some of the laws don't say "standard" or "high capacity" but simply say "ammunition feeding device" and include cloth fabric belts for machine guns, and even the cartridge feed strips used by Hotchkiss MG designs.

yes, you might be in violation of the law for having a woven cloth belt made a certain way, its not just spring loaded metal or plastic boxes that are regulated in some places!

I find it somewhat ironic that the people who one would think most likely to use "Assault weapons" (the military) don't use any.

The M16 (and all its variants in service) are not assault weapons, they don't meet the definition of assault weapon in law. Legally they are machineguns under US law, due to the select fire capability.

I think the decision to rule the CA mag capacity ban invalid is a good thing and gives us hope, even though there may still be years of legal challenge back and forth, it shows some folks in the judiciary really do understand the law.

[Aguila Blanca]

Originally Posted by MarkCO

I continue in my testimony to use the term standard capacity and restricted capacity. I also say, in my testimony, that MSR (Modern Sporting Rifle) and AW (Assault Weapon) are political terms.

Good for you, for adhering to industry (and historical) terminology.

The magazine capacity jargon is especially grating, but so is "assault weapon." With both, the fact that different states have enshrined different parameters for the "same" thing is conclusive proof that there is nothing scientific or objective about either term.

I'm on the other end of the handgun magazine spectrum. I carry and shoot almost exclusively 1911s. Excluding a Para-Ordnance double stack, my "standard" capacity is either 7 rounds or 6 rounds, depending on whether I'm carrying a Commander or an Officers ACP. To me, 10 rounds is "large capacity." [But you didn't hear that from me.]

[Metal god]

Check this out ,

So instead of the traditional 3 judge panel at the 9th circuit hearing the emergency appeal for a stay . The 9th circus decided to take it out of the hands of the 3 judge panel and go straight to an en-banc review of the emergency stay . They also granted an extension to the original 10 day stay until Oct 10 .

The check this out part is read this blistering descent by 2 of the judges on the 3 judge panel that was to hear it .

https://storage.courtlistener.com/re...345123.3.0.pdf

[44 AMP]

So, help me and the other slow kids out here...

The "stay" being talked about is the CA govt request to have the court decision ruling their mag ban invalid held in abeyance ("Stayed") ??

And, the court has broken from their usual procedure and extended that stay a week so that more arguments may be filed??

Is that right?

[LeverGunFan]

So the delay of game process has begun by the 9th Circuit Court. Everyone should read Judge VanDyke's dissent, he concludes his comments with this:

The story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion. As uncomfortable as it is to keep pointing that out, it is important the public keeps being reminded of that fact.

[Metal god]

44 yes in the simplest of terms but as the decent points out. The court has done an end run around their traditional ways of going about that. It’s theorized that a few anti-judges at the ninth circuit realized that the current three Judge panel hearing the case was not likely going to keep the stay in place, which would have resulted in a flood of magazines coming into the state . So it appears they literally did some back door secret voting to take the case out of the hands of the three Judge panel, and take it straight to en-banc . Furthermore, which was quite surprising to all that I’ve talked to so far. Is that they apparently pull these types of shenanigans in the original en-banc . Where it appears, they once again, secretly voted to suspend their rules and allow a past due appeal to proceed . Based on what the judge of the dissent said, it sounds like we should’ve never had the original en-banc panel . Meaning this should’ve been settled law 4+ years ago and yet here we are with the ninth circuit playing their games once again with the Second Amendment .

As one commentator put it, at least we now know it wasn’t our imagination. They really are putting their foot on the scale of justice at the night circuit when it comes to the second amendment. .

[zukiphile]

Originally Posted by 44 AMP

And, the court has broken from their usual procedure and extended that stay a week so that more arguments may be filed??

Is that right?

And as Metal god points out, removed the matter from the three judge panel that would handle this because they wanted to accelerate their non compliance with Bruen.

I share Judge Bumatay’s concerns about the irregularities created by this en banc panel’s all-too-predictable haste to again rule against the Second Amendment. Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why.

The bent of the Ninth to expand federal power isn't unique to the 2d Am.

A couple are minority shareholders in an overseas corporation. The Corporation makes money, but retains the earnings overseas, not distributing them to these minority shareholders. Despite the petitioner's not having received any income, the Internal Revenue Service decides to tax them on it anyway.

The 16th amendment to the Constitution grants

Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The issue the petitioner's present is

Whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states

The Ninth Circuit Court of Appeals has decided that the federal government can impose an income tax even where one has not realized income. https://www.supremecourt.gov/DocketP...Certiroari.pdf

[Metal god]

If the 9th ultimately overturns this well written opinion. I believe it would be purposefully done as a political ruling rather then based on law and precedent. That way the 9th will force SCOTUS to rule in there “extremest” ways allowing LCM nation wide . This will work perfectly into anti political adds showing how SCOTUS claims they care about the unborn child only to let them be mowed down by LCM yielding assault weapons carrying young white men .

[zukiphile]

Originally Posted by MG

If the 9th ultimately overturns this well written opinion. I believe it would be purposefully done as a political ruling rather then based on law and precedent. That way the 9th will force SCOTUS to rule in there “extremest” ways allowing LCM nation wide

That would be the silver lining, that we'd quickly develop a string of Sup Ct decisions pounding home the theme of Heller McDonald and Bruen that it's a real right.

The worse result would be for people hostile to the right to study Bruen for weak spots, carefully draft restrictions that nibble away the right at the margins and wait for a more sympathetic Sup Ct.

[44 AMP]

ok, for us simple folks, as it stands right now, unless the 9th Circuit produces another extension to the stay, or a formal ruling invalidating the lower court's decision overturning the CA mag law, in the next week, then the lower court ruling goes into effect in CA??

[Metal god]

44, yes if they either don’t rule by the 10th of October or sustain his ruling the ruling will go into effect . That said , based on there very reliable track record on 2nd amendment cases that will not happen. The reason I we feel that way is that there was literally no reasonable reason they proactively took the case out of the three Judge panels hands . They technically had no idea how they may rule, so why would you change that procedural method unless you anticipated a ruling you may not like or agree with . That’s the point we are all trying to make here while it appears you seem to be saying yeah it’s just a couple more days nothings really changed. While technically that is true, the underlying reasons why they are doing what they are doing is important, and I suspect the Supreme Court is watching closely now that we know from that descent how the ninth circuit has been working when it comes to second amendment cases. I think the only way they climb out of this hole is letting us stay, expire and moving on. Anything less than that, will show their hostility towards the Second Amendment at this point.

Like I mentioned earlier , the same judge in the Dunken case ( this case ) has 3 more 2nd Amendment cases he is sitting on/writing now . I wonder now that the 9th is showing there colors once again . Maybe he waits and sees what they say on this one before authoring the next one . I suspect the assault weapons ban will read very much like this one did .

So the 9th is waiting on responses due on the 1st I believe . If I were plaintiffs , I’d just write a 4 word brief “what Judge Benitez said” .

To further complicate things, a federal judge out of Washington a couple days ago just ruled there magazine ban is constitutional . It’s my understanding the Washington law pretty much mirrors, the wording of California’s law . So now the ninth circuit has a split at the lower courts. Which means they are absolutely going to stay this judges order and likely combine the Washington case together that will allow them to delay the crap out of this.

My thinking on this is that the 9th circuit en banc panel is going to vacate, Judge Benitez ruling . I say that because they’ve done that before in a second amendment case, when a judge wrote a very similar well reasoned, well researched opinion. The theory was they had to vacate that, so no other courts could use it as a persuasive argument in other proceedings. I fully suspect they will do that again here.

[LeverGunFan]

MG, aren't there two court actions going on here?

1st - emergency motion by the state for a stay pending appeal

2nd - appeal by the state to overturn the decision by Judge Benetiz

It seems likely that the 9th en banc panel will grant an indefinite stay, pending the outcome of the appeal. Clearly the 9th did not want the three judge panel to allow the ruling to go into effect for any length of time while the appeal process works through the courts.

Currently the appeal is scheduled for appellant brief on November 21st and appellee brief on December 21st. So the appeal process will drag out into next year, while the stay remains in effect.

[44 AMP]

I am passingly familiar with the 9th Circuit Court's history of supporting gun control laws, and I expect, as long as the same people are involved, they will attempt to continue their business as usual.

What I am curious about is what will happen, post-Bruen and if/when the Supreme Court will "spank them" for not following the rules established by that SCOTUS ruling.

If I understand it correctly (and I may not) SCOTUS won't rule on various state laws, until a case involving them reaches it. HOWEVER, the actions and operating system of the lower Fed courts are within their purview, and they do not need to wait for a specific case to reach them in order to instruct and correct the lower courts if they are in error.

I don't know if it is, but isn't it possible SCOTUS is giving the 9th enough "rope" for them to hang themselves with??

Personally, I think I'd enjoy seeing that happen...but, that's just me.

[Aguila Blanca]

Originally Posted by zukiphile

The Ninth Circuit Court of Appeals has decided that the federal government can impose an income tax even where one has not realized income. https://www.supremecourt.gov/DocketP...Certiroari.pdf

We don't call it the Ninth Circus for nothin'.

[Aguila Blanca]

I think the majority at the Ninth Circus is just shoveling water against the tide. Sooner or later, they'll vacate Judge Benitez's decision, their ruling will be appealed to the Supreme Court, and the Supreme Court will again cite Bruen in telling the Ninth Circus to pound sand.

But they will have delayed the matter by more years, and they will have cost those uppity peasants who appealed California's wise laws more money, so they will have done all they could to advance the cause.

[LeverGunFan]

The makeup of the Supreme Court could change depending on the outcome of the 2024 and later elections, either by court packing or by replacements for current justices. So the 9th Circuit is playing the long game by delaying this ruling and hoping that Bruen will be overturned or ignored by an anti 2A court.