California's ten round magazine ban struck down by Federal District Court (UPDATE: Reinstated)

[4V50 Gary]

What is interesting is the firearms history cited by the court in its opinion. Page 28 mentions Da Vinci's organ gun, the Girandoni air gun carried by Lewis & Clark and the Corps of Discovery, the Lorenzoni flintlock repeater with internal magazine for power and ball, an allusion to the Henry ("That damn Yankee rifle you load on Sunday and shoot all week.") and the Lefauchaux revolver (20 shots).

Page 33-35 discuss the level of court scrutiny. General level of thumb the higher the level of scrutiny, the more the court seeks to safeguard the Constitution against government infringements. Strict Scrutiny is applied where is a compelling government interest. Generally there are no compelling government interest and most laws that come under strict scrutiny are struck down as unconstitutional. Mid-level scrutiny is applied to less than essential liberties like the rights of gays. The lowest, rational relation, is when the court feels there must be a rational relation between the law being challenged and government reasoning for the law. When this is applied, the government almost always wins. Fortunately here, the court applied strict scrutiny (page 43) nor was the law "narrowly tailored nor the least restrictive means of achieving these interests." That's pretty d*mning of California's law.

http://michellawyers.com/wp-content/uploads/2019/03/Duncan-2019-03-29-Order-Granting-Plaintiffs-MSJ.pdf

As a former Californiastan resident, I am happy to see tyranny crushed. Now we have to work on Coloradostan.

 

[Armed_Chicagoan]

No doubt this will be appealed and the 9th Circuit will stay the decision until they reverse it 6-7 years from now.

Just being cynical from past examples.

 

[TXAZ]

Or just move to Texas Gary!
Thanks, this is a (small) glimmer of hope.

 

[4V50 Gary]

Where I live used to be part of the Republic of Texas. C'mon and git us back. I'm your fifth column against Denverstan.

 

[HiBC]

I saw this in the news. Yes,my cynicism ...or loss of naivete prevents me from getting TOO excited...

But things are rather glum in Colorado these days,Gary and I can use a bit of good news while it lasts.

Who knows? If it sticks,Colorado might actually get one good thing via California.

 

[TruthTellers]

I guess we'll see what happens after the 9th strikes it down during an en masse hearing and what comes of the NY SCOTUS case in regards to how that's going to go down and if indeed SCOTUS affirms that strict scrutiny must be applied for all gun and 2nd Amendment cases.

It does seem tho that the judicial branch is doing more to protect 2A than the other two branches are, so hopefully that keeps up. I mean it's pretty simple the confines the gov't was given in regards to the right to own and carry arms: they weren't allowed to do anything.

The only infuriating thing that exists is the "reasonable restriction" wording in Heller, but hopefully, HOPEFULLY the NY case will amend that. At least then all the AWB and magazine capacity and ammo microstamping and various other things can be undone in certain states and prevented federally, but will keep actual reasonable restrictions on stuff like bombs and machine guns. In my ideal world, a machine gun would be treated like an AOW today: you pay a minimal fee for an enhanced background check. I'm okay with that, it's reasonable. Closing the registry and driving prices of already registered machine guns to the price of a new car is not.

 

[USNRet93]

Where I live used to be part of the Republic of Texas. C'mon and git us back. I'm your fifth column against Denverstan.

Do you live in Denver Gary? If you do, strap that handgun on yer hip and walk around Pearl Street Mall..will you be approached by a LEO? Almost certainly but he won't tell you it's illegal, cuz it's not.
Bet you've seen this. Good chart.
https://en.wikipedia.org/wiki/Gun_laws_in_Colorado

Is the 15 round magazine ban(grand fathered, BTW), the one?

But things are rather glum in Colorado these days,Gary and I can use a bit of good news while it lasts.

??

 

[zukiphile]

The only infuriating thing that exists is the "reasonable restriction" wording in Heller, ...

Except that phrase doesn't appear in the Court's decision in Heller.

I hadn't read this about Heller until just a couple of years ago on this forum. I don't know the origin of the assertion, but it isn't true.

 

[Glenn E. Meyer]

Info:

Here's a good summary to my layperson's eyes of court decisions:

https://fas.org/sgp/crs/misc/R44618.pdf

Here's a usage of reasonable restrictions from the popular press:

https://www.huffpost.com/entry/on-guns-supreme-court-emp_b_484828

Heller is full of the use of the words - restriction and restrictions but not reasonable restrictions. The basis for such are discussed. I did find a reference to Justice Stevens previously discussion the basis for 'substantial restrictions'.

Here's the Brady Bunch - discussing reasonable restrictions:

https://brady-static.s3.amazonaws.c...SecondAmendmentAndPublicSafetyAfterHeller.pdf

n the ten years since Heller, courts have almost universally agreed with the Brady view and rejected the NRA view of the Second Amendment. Since Heller, state and federal courts have heard over a thousand Second Amendment challenges to gun laws. In over 90% of those cases, the courts have rejected the challenge, essentially adopting the Brady view that Heller does not prohibit common-sense gun laws.8 The courts have repeatedly held that Heller does not provide a basis to overturn bans on the public carry of firearms, assault weapons, and large capacity magazines. They have also overwhelmingly held that Heller allows for reasonable restrictions on dangerous people possessing and owning firearms, and has upheld safety regulations regarding firearms training, storage, and design.

It might be that the term came from a lower court decision before SCOTUS:

The district court dismissed Heller’s claims, stating that it “rejects the notion that there is an individual right to bear arms separate and apart from service in the Militia” and holding that “because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment.”15On appeal, the United States Court of Appeals for the District of Columbia reversed in a 2-1 decision, concluding that “the Second Amendment protects an individual right to keep and bear arms,” that such a right is subject to “reasonable restrictions,”...

Here we go: https://caselaw.findlaw.com/us-dc-circuit/1388980.html


United States Court of Appeals,District of Columbia Circuit.

Shelly PARKER, et al., Appellants v. DISTRICT OF COLUMBIA and Adrian M. Fenty, Mayor of the District of Columbia, Appellees.
No. 04-7041.
Decided: March 09, 2007

That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols.   The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.  

So the term has some history behind it, even it didn't appear in Heller. It is then used in conjuction with the Heller discussion of some restrictions that are allowable. Such as this interpretation of Heller:

Indeed, as Justice Antonin Scalia noted in the majority opinion, the right to keep and bear arms is “not unlimited,” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”3Rather, the Court identified a non-exhaustive list of “presumptively lawful” gun restrictions, such as gun sales regulations, bans on public carrying of firearms, bans on dangerous and unusual weapons, and bans on gun possession by certain classes of prohibited persons.

From the Brady site but showing the take that they put on things: https://brady-static.s3.amazonaws.c...SecondAmendmentAndPublicSafetyAfterHeller.pdf

 

[HiBC]

But things are rather glum in Colorado these days,Gary and I can use a bit of good news while it lasts. / ??

.


USN,we covered the Red Flag law . Even the Denver PD came out against it.


No need to do reruns. We are working on making some corrections.


Supposedly,after Pearl Harbor,Yamamoto said something like "I fear we have awakened a sleeping giant and filled him with a terrible resolve." Time will tell.

 

[Glenn E. Meyer]

Please, no one post the guns behind every tree bogus quote!!

Let's hope this CA decision has legs.

I wrote this elsewhere:

If the ban is struck down - who knows about the next levels? - then it would seem to imply that the ban against the guns themselves would necessarily be voided. The dangerous nature of the gun is the ability to shoot lots of rounds quickly. The cosmetic features of MSSAs (to use that term) do not truly influence their lethal efficacy. Pistol grips, flash doohickeys, so what.

This was pointed out in the research on why the original AWB didn't not affect any known crime indices at the time. See https://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf , Koper and Roth. I heard a presentation on the research at the American Society for Criminology. The point was made that guns without the AWB features had equal efficacy, so those restrictions were useless. The gun world said - OK - no AWB. The researchers and the DOJ sponsors said - BAN THE SEMIS - totally.

So a total semi ban would negate that positive effect of the disallowing the mag ban - unless such a ban was challenged. Banning all semis is not unknown. There have been rampages with the nice gun (Mini-14) which led to their being banned (see Norway, IIRC). The Montreal schoo rampaged used a Mini-14. So to take out the ban immune guns like the Minis and Ruger PCCs would seem to be based on actions. So do you get bolt actions, higher capacity guns? Weird.

So it's back to the lever guns - until they are banned - if that held. It's kind of like the abortion issue - anti abortion states will come up with all kinds of restrictions based on this or that to take out the thing they don't like. Heart beat bans are just an emotional ploy as the issue is neurological. Same idea use anything you can come up with.

Let's hope this stands and leads to a more expansive set of findings that lead SCOTUS to clarify the ambiguous nature of the 'restrictions' seemingly allowable in Heller in a manner positive to the RKBA.

 

[44 AMP]

an allusion to the Henry ("That damn Yankee rifle you load on Sunday and shoot all week.")

I believe that "damn Yankee rifle" referred to was the Spencer, not the Henry.

The court decision is heartening, especially the use of strict scrutiny as the standard. It may be overturned later, but for now, its a step in the right direction.

 

[Aguila Blanca]

Here we go: https://caselaw.findlaw.com/us-dc-circuit/1388980.html


United States Court of Appeals,District of Columbia Circuit.

Shelly PARKER, et al., Appellants v. DISTRICT OF COLUMBIA and Adrian M. Fenty, Mayor of the District of Columbia, Appellees.
No. 04-7041.
Decided: March 09, 2007

That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols.   The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.

So the term has some history behind it, even it didn't appear in Heller. It is then used in conjuction with the Heller discussion of some restrictions that are allowable. Such as this interpretation of Heller:

Indeed, as Justice Antonin Scalia noted in the majority opinion, the right to keep and bear arms is “not unlimited,” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”3Rather, the Court identified a non-exhaustive list of “presumptively lawful” gun restrictions, such as gun sales regulations, bans on public carrying of firearms, bans on dangerous and unusual weapons, and bans on gun possession by certain classes of prohibited persons.

And this is where I have to differ with Mr. Scalia, as well as with the District of Columbia court of appeals. The comparison with "reasonable restrictions" of First Amendment rights fails because the Second Amendment itself says that it is not subject to restrictions. It says "shall not be infringed." It does NOT say "shall not be unreasonably infringed."

"Restriction," "regulation," whatever you choose to call it -- equals infringement. None of the other rights enumerated in the Bill of Rights comes straight out and says "shall not be infringed." Anyone with a modicum of intellectual honesty would have to admit that "shall not be infringed" means "is not subject to restriction."

 

[zukiphile]

So the term has some history behind it, even it didn't appear in Heller. It is then used in conjuction with the Heller discussion of some restrictions that are allowable. Such as this interpretation of Heller:

Indeed, as Justice Antonin Scalia noted in the majority opinion, the right to keep and bear arms is “not unlimited,” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”3Rather, the Court identified a non-exhaustive list of “presumptively lawful” gun restrictions, such as gun sales regulations, bans on public carrying of firearms, bans on dangerous and unusual weapons, and bans on gun possession by certain classes of prohibited persons.

From the Brady site but showing the take that they put on things: https://brady-static.s3.amazonaws.co...fterHeller.pdf

If the history behind the term "reasonable restrictions" is use by the district court that had failed to recognize Heller's claim and by gun control/ban advocates, we should not confuse that with the text of the Court's decision.

If someone needs to import the term "reasonable restrictions" in order to interpret a Scalia decision that never uses the term, maybe the offered interpretation is erroneous.

 

[Aguila Blanca]

Indeed, as Justice Antonin Scalia noted in the majority opinion, the right to keep and bear arms is “not unlimited,” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”3Rather, the Court identified a non-exhaustive list of “presumptively lawful” gun restrictions, such as gun sales regulations, bans on public carrying of firearms, bans on dangerous and unusual weapons, and bans on gun possession by certain classes of prohibited persons.

It perhaps bears repeating that the expression "presumptively lawful" does not mean "lawful." If Mr. Scalia had intended to say that all existing gun control laws are lawful, I'm sure he would have said exactly that.

However, he said "presumptively" lawful. By that, what I believe he was saying was "There are a metric boatload of other gun laws out there that are not before us for discussion in this case, and so for the purposes of this case we will presume that they are lawful ... until each of them has had its own day in court."

That's what he meant but, since Heller, lower courts have been using [abusing] that statement to justify denying those other laws their day in court by claiming that the SCOTUS has already decided that they are lawful.

It's really a sad day when senior justices on the United States courts of appeals are functionally illiterate.

 

[Glenn E. Meyer]

If the District court in 2007 used the term, it pre-dated Heller. It did not appear in Heller but the folks after the decision, seem to have picked it up in their media prose. If later courts used it, I didn't search on that.

Does the use by the District Court earlier on, somehow imply that was a principle used by the restrictions or discussions by Scalia on various items? That I don't know.

You see things in Heller like:

Many early 19th-century state cases indicated that theSecond Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions.

p.38
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

So the use of restrictions in a positive or negative sense is found through the decision and dissents.

Did the Parker prose become that attached to the Heller prose? Seems like it. Given the discussion in Heller of some restrictions - that phrase takes on a life of its own and used against the RKBA.

It make a 'literalism' defense (a term used as a fault in critiques of the Humanities pedantic nature in discussion modern politics) of Heller, miss the issue in some sense. If that's what the media, people and lower courts think - it's a problem.

 

[zukiphile]

If the District court in 2007 used the term, it pre-dated Heller. It did not appear in Heller but the folks after the decision, seem to have picked it up in their media prose.

None of which excuses attribution of the term to the Heller decision. It may be that people use that having mistakenly relied on secondary sources, or that they intend to deceive the reader, but in either event the attribution is false.

So the use of restrictions in a positive or negative sense is found through the decision and dissents.

Did the Parker prose become that attached to the Heller prose? Seems like it. Given the discussion in Heller of some restrictions - that phrase takes on a life of its own and used against the RKBA.

The passive voice conceals the culprit here, people who either didn't read the decision or have misinterpreted what they read have misrepresented the decision itself. That this error is seen in the writing of people largely opposed to Heller itself may not be coincidental.

The existence of restrictions isn't disputed. Heller noting the existence of restrictions cannot competently be construed to mean that Heller legitimated "reasonable restrictions" as a standard for firearms restrictions.

It make a 'literalism' defense (a term used as a fault in critiques of the Humanities pedantic nature in discussion modern politics) of Heller, miss the issue in some sense. If that's what the media, people and lower courts think - it's a problem.

If the issue is what the Heller decision contains, that's not difficult to resolve. If the problem is that people are using bad information, better information is the cure.

 

[Glenn E. Meyer]

Interesting topic - if we resolve the issue of Heller not having the term in it, does it aid in advancing the RKBA cause? The list of conditions Scalia mentioned seem to get thrown up as some kind of restrictions, that seem 'sensible' and should be expanded upon.

The literalism issue is seen a discussion of the Wall (which we DON'T) want to discuss itself.

Trump seeming used the term 'medieval' - https://www.washingtonpost.com/outl...lls-worked-they-didnt/?utm_term=.1991052957d8

This led to a bunch of scholars having hissy fits over whether such a Middle ages wall could work as wanted: https://www.washingtonpost.com/outl...lls-worked-they-didnt/?utm_term=.1991052957d8

along with actual use of the term Medieval was insulting to the Middle Ages and thus trivializing the debate: https://www.chronicle.com/article/The-Rise-of-the-Pedantic/245808?cid=wcontentgrid

Here's a quote:

Readers who doubted that the moment demanded a defense of the Middle Ages could be forgiven. In a political battle of such high human stakes, the question of whether calling Trump’s proposal "medieval" constituted "an insult to the Middle Ages" (as the Vox headline put it) might seem worryingly beside the point. But the wave of furious responses was entirely predictable. In their parochial, self-serious literalism, they exemplify a style that increasingly pervades public writing by humanities scholars — a style that takes expertise to be authoritative and wields historical facts, however trivial or debatable, as dispositive answers to political questions. Such literalism is bad rhetoric, a way of dissolving argument into trivia.

I've often thought about literalism when someone says assault rifles should be banned and the usual reply was they are not assault rifles because assault rifles are like the Sturmboomerbanger. Saw Guns and Ammo TV have a ludicrous presentation of a fully auto M-16 vs. a semi AR-15, arguing the latter is somehow nice and an MSR and not an assault rifle. Thus, it should be banned.

Not being stupid, antigunners picked this up we MSSA - military style semi-autos being common parlance. NZ uses it legally now.

The point being - is correcting the non-usage of reasonable restrictions in Heller going to get us anywhere as the next refrain after one corrects the assault rifle usage and/or reasonable non-usage in Heller, will be that the weapons under consideration should be banned as they are extremely dangerous and who cares about those two points.

 

[Rockrivr1]

Those of us behind enemy lines in Massachusetts, which has a very restrictive magazine ban, are watching this ruling closely.....

 

[Glenn E. Meyer]

Fingers crossed as it is a long path to go for a decision which covers the entire country.

I would like our friendly legislators and White House, to perhaps mention this is a good step forward. Maybe the DOJ could chime in. It chimes in on other issues.