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

Judge denies states request for additional expert witnesses and gives both side 45 days to file new briefs based on text and tradition. He then will give both sides 15 days to rebut each others briefs .

The state was arguing they need to do a deep dive of the historical traditions of the second amendment . To include multiple historians to come and testify . The judge pointed out several times throughout there back and forth how all the traditions of the second amendment can be found is case law and there was no need for additional expert testimony . Judge repeated multiple times he had confidence council could find what they need on there own .

The state kept pushing claiming there has not been enough case law on what "types" of weapons can be owned , carried or restricted only who and if they can be carried . At that point the judge interrupted and said he believed Heller in fact did just that . He then referenced a billy club case he recently had where he did quite a bit of research on what "types" of weapons can be restricted . Bottom line was that the judge did not feel the need for any more testimony at this time . He did leave the door open to that possibility if the states brief was compelling . He then added if experts were needed that he would cross examine the witnesses him self if need be but at this time he did not see a reason to prolong the case . The judge said this case has been going on long enough and both sides have a constitutional right to have this answered sooner then later . Anything else would be an undue delay . He originally was going to give 30 days then 10 but settled on 45/15 .

FWIW the Plaintiff's wanted to enjoin the new law forcing the lawyers to pay the other sides attorney's fee's . Sorry if I did not get the specifics on that right . Regardless , he denied that as well , saying that is a separate issue that needs to be litigated on it's own . Other then that the plaintiff's didn't have much to argue and seemed OK with what the judge was asking for .

The one interesting thing that happened that I don't understand is at the very end the judge stated he was lifting the previous injunction . I'm not sure what that meant since everything had been vacated as far as I know ????
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UPDATE

CA files brief in case and for the first time had to use text and tradition as there only argument .
https://storage.courtlistener.com/recap/gov.uscourts.casd.642089/gov.uscourts.casd.642089.137.0.pdf


They really have some interesting and novel ideas . One that almost seems reasonable .... ok not really but I can see the anti judges on the 9th buying into it . Which is CA does not ban the firearm/AW it is simply regulating and or banning features you can attach to the firearm that do not effect the general or overall function of the firearm .

This is interesting to me because simply ruling against that argument would allow someone to attach anything to there firearm resulting in a dangerous and unusual weapon Yes/no ?

Silencers are regulated , full auto trigger groups are regulated so why can't other features/parts be regulated like collapsible stocks or other muzzle devices ?

I still need to reed through it but can't wait to see Millers Brief .
 
All briefs are in and it’s now in the hands of the judge .

Plaintiff's supplement brief
https://assets.nationbuilder.com/fi...Response_to_Supplemental_Brief.pdf?1666998199

Defendents supplemental brief --- They again HEAVILY rely on the argument that they are only banning accessories and not the basic firearm itself . Which is interesting because for 30 years the state has been trying to ban AW . All of a sudden AW are not the problem it's the little pieces of plastic you can put on them that make them dangerous "OR" unusual hmm thought that term was supposed to be dangerous "AND" unusual ???
https://assets.nationbuilder.com/fi...'_Response_to_Additional_Brief.pdf?1667019830

Judge can rule based on what he has now or can order more hearings . Most believe he will simply rule on the case rather then prolonging the case . Some expect to see a ruling by mid November. At first I’d think that would be longer then is needed . However as before , this judge will carefully consider everything in front of him as well as do his own research. Meaning IMHO it will take a good bit of time to review and research the relevant data and write what will most likely be a very long and detailed opinion. That and other cases he has to consider might push this into Dec or even early next year .

That said several of his current cases actually are on 2nd amendment issues and need very similar research and review so there may be quite a bit of crossover which may speed up if not this case , the others in the future.
 
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From the state's brief:
As explained in Defendant’s supplemental briefing, however, nothing in Penal Code section 30515 prevents Californians from acquiring or possessing any bearable arms, including AR-platform rifles, so long as they are not semiautomatic centerfire rifles, semiautomatic pistols, or shotguns equipped with any of the qualifying combat-oriented accessories, or are not semiautomatic centerfire rifles less than 30 inches in length (which can be accomplished by equipping a firearm with either a shortened barrel, a collapsible stock, or both).
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Translation: In California, it's completely legal to own an AR-15 rifle as long as it doesn't have any of the things that AR-15 rifles have, doesn't work like AR-15 rifles work, and doesn't use the ammunition that AR-15 rifles use.
 
Yep , they even point out that “featureless” AR rifles are exceptable . I chose to go featureless instead of registering my AR as a AW . The biggest drag of featureless is no pistol grip . You need a flange or other that blocks the ability to wrap your thumb around the grip . Often referred to as a fin grip . The fixed stock sucks to but less an issue then the grip . First off I can no longer reach the safety with my thumb as intended . You need to take your forward hand off the rifle to put rifle on safe .

My fin grip is different then most on the market . I have this extra ledge/step that allows for a thumb rest and actually allows for a good-ish purchase on the rifle with one hand , with out it it's very hard to hold it with one hand to put the rifle on safe . Regardless I still can't reach the safety as intended .
gpU8nv.jpg
 
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I've been trying to think of a similar law that hypothetically might have been written at the founding of the 2nd . Like - you can have a canon but can't put wheels on it to allow it to be moveable ?? Since the wheel is an accessory and not a required part for the canon to function they can be regulated ????

How many others can we think of that can be regulated or banned ? FWIW they are saying the same thing about magazines in the mag limit case .

Scopes/optics ?
Slings ?
cases ?
 
The Second Amendment does not say the citizen's right to keep and bear those arms the government approves, in the configuration the government approves shall not be infringed.

Unfortunately, it also does not say the citizen's right to keep and bear any arms as they chose shall not be infringed, either.

What's a poor judge to do? :rolleyes: No matter which way they rule there will be a lot of people mad about it. Maybe they can kick it around from court to court until they retire, and then its someone else's problem?
(note: the sarcasm is intentional)
 
Unfortunately, it also does not say the citizen's right to keep and bear any arms as they chose shall not be infringed, either.
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Correct and is often where the dangerous and unusual part comes in . I think the danger part is a given but those accessories are far from unusual. Furthermore there is very little of history or tradition regulating firearm accessories .

Regardless I believe the 9th circuit will fall hook line and sinker for this logic . They will first delay as long as possible any opinion and the SCOTUS will be asked to hear this case again in about 2 or 3 years .
 
Correct and is often where the dangerous and unusual part comes in .
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The "dangerous and unusual" language is a court opinion. NOT written in the
Constitution. It is used as the basis for some laws and supporting them, because it is a court opinion, but being what it is, it is not unalterable despite how much time passes before the court changes its opinion, IF it does.

The basic problem I have the the logic of "dangerous and unusual" is that everything is dangerous in the wrong hands, and completely safe in the right ones. The actual mechanism of the arm doesn't change the user intent. And. "unusual" is simply a measure of popularity. Actual machine guns are "unusual" because they are rare, and they are rare because the govt made them hightly restricted and expensive in 1934 and very few people have bothered with the hassle and costs in order to have one.

Its really circular reasoning. "we can regulate them because they are "unusual" when the truth is that they are unusual because they are regulated already, and have been for a long time.
 
Update

Hearing scheduled for today at 10:30 for a motion to intervene . I’ll be in the courtroom today and will report after .
 
Judge wants with in 30 days the state to produce a spread sheet in chronological order of all gun laws that restricted , banned arms since the founding to 20 years after the 14th amendment . He even laughed while saying I'm going to give you an arbitrary number of 20yrs after the 14th amendment . Likely because he said the 10rd mag limit was an arbitrary number the state came up with when he originally ruled on that case . The state argued that they should be able to include the 20th century laws as well and the judge said no at first but then aloud them to submit a separate spreadsheet from 1888 to present but stated he does not anticipate it having any relevance . The state used a small paragraph in the Bruen case as there legal reasoning for the 20th century laws being relevant . Sorry don't remember the exact quote but it was something like - the text and tradition of the 20th century is relevant only if it does not conflict with the founding through the 14th amendment time period .

He also wants in that same spread sheet what each of those laws specifically ordered , if they were ever repealed , if so why and if any where challenged in court and what the outcome if any was in each and every case .

Both side will then have an additional 30 days to file briefs regarding there opinions on said spread sheet .

Both side will then have 10 days to file briefs apposing each sides opinion on the spread sheet .

The state did ask for an additional 90 days for experts to submit history and text briefs which he denied outright stating the states own experts have admitted in 2017 that they had been researching the text and traditions of the second amendment for 20 years . Tack another 5 years to that to bring it to the present and the states own experts in this case have been studying the text and tradition aspects of the second amendment for a 1/4 century . The Judges said that's plenty of research time and that 90 more days was not needed .

Anyways there was actually a lot going on with all 4 cases being co-mingled and it was hard to keep track . I made a huge mistake in not bringing a note pad . I wrongly thought I could take notes on my phone which I quickly found out the hard way I COULD NOT !

I'll likely remember more as we talk about this
 
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Hmm, wouldn't that extra 20 years allow the inclusion of all the Jim Crow style gun laws in the South after the war?
This will be very interesting.
 
Hmm, wouldn't that extra 20 years allow the inclusion of all the Jim Crow style gun laws in the South after the war?
This will be very interesting.
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Yes but he also wants to know what happened to said laws and if they were repealed or challenged. If so , why and what was the ultimate outcome . So sure they not only must include them they will also need to show how they were ultimately repealed or found unconstitutional. Strengthening our argument that there is not text and history of said laws .

Meaning just because there was a law banning x doesn’t mean the US has a history of banning x if said ban was shortly repealed or found unconstitutional.
 
Just out of curiosity, is the judge requiring a history of ALL US gun control laws within the stated time frame, or just CA laws??
 
He was not clear on that and the question was not specifically asked by either side and that was 11 different lawyers standing there . We are still waiting on the formal order .

Right at the end both the plaintiffs and the state asked if the judge was going to give a formal written order . He turned to both with quite the annoyed look on his face and asked/stated "you did not take notes" ? They all said that they summarized what he was asking at which point the judge lowered his head and shook it , looked up and said I’ll see what I can do . So who knows if he actually writes an order on this .

This whole spreadsheet ideas was on the fly and was nailed down over the 2hr hearing . My guess is that his staff needs to go through the transcript to be sure what was all agreed upon then write a draft for the judge to approve. There’s going to be a lot of nuance to this order so it may take a couple days .
 
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Monday was especially interesting to me with all the cases being lumped together. I was literally on the edge of my seat a few times . When the state wanted to include the 20th century in the spreadsheet and the judge just sat there leaned back in his chair head pressed back against the head rest eyes closed thinking about it for what seemed like several minutes but really maybe 20 or 30sec . The court room was dead silent with all eyes on him . What a moment , because his answer could sink them in a second and yet he let them submit a separate brief on the 20th century. That may be the first time I truly realized how much power a judge has as we all sat there in anticipation of what he will say next . I’m guessing although some feel we had a good day . I bet dollars to donuts the state felt they got a big win on that one . At least now they will have the 20th century on record with ALL it’s still standing gun laws and restrictions .
 
The state used a small paragraph in the Bruen case as there legal reasoning for the 20th century laws being relevant . Sorry don't remember the exact quote but it was something like - the text and tradition of the 20th century is relevant only if it does not conflict with the founding through the 14th amendment time period .
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This seems like a pretty shrewd and reasonable argument to include the 20th century data. However, I wonder if they thought it through far enough to realize that, under the new "post Bruen" rules, it could very well come back and bite the state in the ass.

IF "relevant ONLY if it does NOT conflict with those laws and traditions from the founding through the 14th Amendment time period" (paraphrase), the 20th Century gun laws (most if not all) MOST CERTAINLY WILL CONFLICT, so, by having them included in the data, there is the opportunity for the judge to rule the 20th century data "irrelevent", officially, and possibly once and for all (absent another higher court reversal of that ruling).

Ruch a ruling would shoot that part of the argument and line of reasoning right in the butt, dashing any hope of usefulness to the State's case.

I'd consider it a good thing, possibly...
 
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