Did Hell freeze over


Second Amendment activists were given a surprise boost this week when the liberal Ninth Circuit Court of Appeals backed a lower court’s decision to suspend California’s ban on the possession of large magazines.
Activists, supported by the National Rifle Association, have argued that the state's ban on ownership of magazines holding 10 bullets or more is unconstitutional. They won a preliminary injunction by a San Diego district court last year, and a three-judge panel on the Ninth Circuit backed that injunction Tuesday.
The court found that the district court did not abuse its discretion in granting the injunction or by concluding that magazines fall within the scope of the Second Amendment.


"The district court did not abuse its discretion by applying the incorrect level of scrutiny," the judges also found. "The district court concluded that a ban on ammunition magazines is not a presumptively lawful regulation and that the prohibition did not have a 'historical pedigree.'"

“This is a significant win for law-abiding gun owners in California,” Chris Cox, executive director of the National Rifle Association’s Institute for Legislative Action, said in a statement. “This unconstitutional law criminalizes mere possession of many standard capacity magazines and would instantly turn many law-abiding gun owners into criminals.”

Dissenting from the ruling, Judge John Clifford Wallace said that evidence provided by the state, including studies and surveys showing the use of large-capacity magazines increase the lethality of gun violence, “was more than sufficient to satisfy intermediate scrutiny.”

National Review’s David French, who opposes the ban, noted that the Ninth Circuit ruling was limited but also linked constitutional protection of firearms to potential militia use -- a development he described as “encouraging.”

The NRA noted that a ruling in the lower courts is expected soon, and that the case therefore will likely be before the 9th Circuit again.
But President Trump has nominated Judge Brett Kavanaugh, who has a strong record of defending gun rights, to the Supreme Court. The NRA reflected that in its statement, expressing hope that if the the case is appealed, “the Supreme Court will likely have a new justice who respects the right to keep and bear arms as protected by the Second Amendment.”
The California Department of Justice told The San Diego Union-Tribune that it will “continue to vigorously defend the challenged law.”

Based in San Francisco, the Ninth Circuit has a reputation for being one of the nation's most liberal courts. Critics have branded the court the “Nutty 9th” or the “9th Circus,” in part because many of its rulings have been overturned by the U.S. Supreme Court. This includes an infamous 2002 ruling that the Pledge of Allegiance is unconstitutional because of its use of the phrase “under God.”

Republicans have been working to fill vacancies with conservatives, but suffered a setback this week when the White House withdrew the nomination of Ryan Bounds for the Ninth Circuit after realizing it did not have the necessary support in the Senate. He faced criticism over past college writings.


http://www.foxnews.com/politic...fornia-ammo-ban.html

Two words: en banc.


https://en.wikipedia.org/wiki/En_banc

^^^ Since there are no delays in hearing the underlying case down in the Southern District of California, I'm not sure that there's time (or anything like a pressing need) for a full circuit court review. Nor is it likely that California can make the case that time is of the essence in enforcing this law, so it's kind of hard to see how California can talk the full 9th Circuit into rehearing arguments over a preliminary (and, by definition, quite temporary) injunction to not start rounding up every magazine in the state that can accomodate more than ten rounds.

For those who are interested, here's the original decision that was appealed to the 9th Circuit:

http://michellawyers.com/wp-co...inary-Injunction.pdf

It's actually quite a pleasant read from a pro-Second Amendment perspective, and promising in that further cases (or a remanded case, if that happens) are likely to get a sane hearing.

Here's the 9th Circuit's decision:

http://cdn.ca9.uscourts.gov/da...8/07/17/17-56081.pdf

Again, the majority is perfectly reasonable. FWIW, the dissent seems to be desperately searching for bits and pieces of an argument out at the edge of what the law justifies. Note that it's stamped "Not For Publication" - that should just mean that they want one more chance for minor editing rather that there's likely to be any profound change in the way the decision is structured.

Even a broken clock...

^^ No, really, go read the decisions. This could realistically lead to some very good news.

quote:

Originally posted by Il Cattivo:
^^^ Since there are no delays in hearing the underlying case down in the Southern District of California, I'm not sure that there's time (or anything like a pressing need) for a full circuit court review. Nor is it likely that California can make the case that time is of the essence in enforcing this law, so it's kind of hard to see how California can talk the full 9th Circuit into rehearing arguments over a preliminary (and, by definition, quite temporary) injunction to not start rounding up every magazine in the state that can accomodate more than ten rounds.

For those who are interested, here's the original decision that was appealed to the 9th Circuit:

http://michellawyers.com/wp-co...inary-Injunction.pdf

It's actually quite a pleasant read from a pro-Second Amendment perspective, and promising in that further cases (or a remanded case, if that happens) are likely to get a sane hearing.

Here's the 9th Circuit's decision:

http://cdn.ca9.uscourts.gov/da...8/07/17/17-56081.pdf

Again, the majority is perfectly reasonable. FWIW, the dissent seems to be desperately searching for bits and pieces of an argument out at the edge of what the law justifies. Note that it's stamped "Not For Publication" - that should just mean that they want one more chance for minor editing rather that there's likely to be any profound change in the way the decision is structured.

Not for publication means it isn’t intended for official reports, not to be cited as precedence etc.

If every decision and order was published in official reports, those would soon be clogged up as to become unusable.

If any party asks, and has a good reason, the court will sometimes remove that legend and have it in official reports.

quote:

Dissenting from the ruling, Judge John Clifford Wallace said that evidence provided by the state, including studies and surveys showing the use of large-capacity magazines increase the lethality of gun violence, “was more than sufficient to satisfy intermediate scrutiny.”

Why is this even a factor? The right to bear arms doesn't preclude exceptions which may increase the lethality of gun violence (whatever the heck that is - it's really people violence but whatever).

The right is not to be infringed, not matter the abuse.

In fact, if the right is not to be infringed at least partially because of threat of government tyranny, and the government is in possession of the object in question, then it better not be infringed. The government has 'increased lethality' capability against the people.

The people should be capable of being better armed than the government. After all, we fund it.

quote:

Why is this even a factor?

This is part of the shit that has to be shaken out of the law. The dissent has to argue for intermediate scrutiny because it seems unlikely that the magazine grab would survive a decision based on the same standard that wound up being applied by the Supreme Court in Heller. We've seen courts use the same logic (and the existence of the same kind of "evidence") to uphold gun regulations and bans over and over again. Heller and cases relying on the Heller decision constitute a crack in the dam. Now the dam has to be broken and washed away by forcing court after court after court to abandon reflexive reliance on intermediate scrutiny in order to protect legislative infringements on Second Amendment rights. As we've seen, that ain't necessarily easy or quick.

Yes, it's the law. And yes, judges have policy preferences and opinions about whether or not you should be allowed to own a certain gun, magazine, or type of ammunition. So, yes, the shit has to be flushed out of the sewage system even if that flushing has to go pipe by pipe rather than sewage system by sewage system.

quote:

Dissenting from the ruling, Judge John Clifford Wallace said that evidence provided by the state, including studies and surveys showing the use of large-capacity magazines increase the lethality of gun violence, “was more than sufficient to satisfy intermediate scrutiny.”

One of the all time dumbest comments ever uttered by an well educated jurist. A 'potential' change in lethality does not alter or change the 2A right. To suggest otherwise proves beyond a shadow of a doubt this jurist's opinions are more important than the context of the actual law.

The ruling here is indeed good news. If we can finally get the courts to accumulate guns, mags, ammo, and accessories into the same category, protected by the 2A, maybe we can finally reach some sense of reasonableness when it comes to firearms.

quote:

Originally posted by bigdeal:

quote:

Dissenting from the ruling, Judge John Clifford Wallace said that evidence provided by the state, including studies and surveys showing the use of large-capacity magazines increase the lethality of gun violence, “was more than sufficient to satisfy intermediate scrutiny.”

One of the all time dumbest comments ever uttered by an well educated jurist. A 'potential' change in lethality does not alter or change the 2A right. To suggest otherwise proves beyond a shadow of a doubt this jurist's opinions are more important than the context of the actual law.

The ruling here is indeed good news. If we can finally get the courts to accumulate guns, mags, ammo, and accessories into the same category, protected by the 2A, maybe we can finally reach some sense of reasonableness when it comes to firearms.

Wallace has been on the 9th Circuit since I was in law school, more than 40 years. He was a district court judge briefly before that. He is 89 years old, a senior judge.

I imagine a hearing en banc will be next. Those are not automatic by any means. Also, this is merely the propriety of the preliminary injunction, not a verdict on the merits.

After that, an appeal on the merits, and then the Supreme Court.

quote:

Originally posted by JALLEN:
Wallace has been on the 9th Circuit since I was in law school, more than 40 years. He was a district court judge briefly before that. He is 89 years old, a senior judge.

Perhaps the better term might be 'senile'. As someone who is considered old by many, I truly believe there needs to be an age limit put in place for both judges and elected officials. Some of these people are dinosaurs whose mental acuity needs to be called into question.

quote:

Originally posted by bigdeal:

quote:

Originally posted by JALLEN:
Wallace has been on the 9th Circuit since I was in law school, more than 40 years. He was a district court judge briefly before that. He is 89 years old, a senior judge.

Perhaps the better term might be 'senile'. As someone who is considered old by many, I truly believe there needs to be an age limit put in place for both judges and elected officials. Some of these people are dinosaurs whose mental acuity needs to be called into question.

Do you know him? Talked to him recently? He writes pretty well for a dinosaur.

In the OP: “10 bullets or more” ought to be “more than 10 bullets”.

CA residents can't buy standard cap magazines with this, it's simply an upholding of an injunction by a lower court in regards to Gavin Newsom's Prop 63. From what I see, the prior laws of possessing such mags are in effect; only pre-bans prior to 2000 are legal, as well as "parts kits". This will eventually go to the full 9th circuit.

Sure. But I'll be damned if the arguments in the lower court's decision weren't written with a view to surviving scrutiny by the Supreme Court regardless of what kind of appeal is made or what the 9th Circuit finally decides.

quote:

Originally posted by JALLEN:

quote:

Originally posted by bigdeal:

quote:

Originally posted by JALLEN:
Wallace has been on the 9th Circuit since I was in law school, more than 40 years. He was a district court judge briefly before that. He is 89 years old, a senior judge.

Perhaps the better term might be 'senile'. As someone who is considered old by many, I truly believe there needs to be an age limit put in place for both judges and elected officials. Some of these people are dinosaurs whose mental acuity needs to be called into question.

Do you know him? Talked to him recently? He writes pretty well for a dinosaur.

Nope, don't know him or have met him. I'm only evaluating him on the content of his utterly absurd dissent noted in the linked story.

But if we can be honest for a moment, we all degrade with age, both physically and mentally. Some more so than others, but no one escapes the effects. An age limit on participation in our legal system and government would help weed out many people who should not be there. And after all, the decisions these people make potentially effect the lives of millions of Americans.

quote:

Originally posted by oddball:
<snip>
From what I see, the prior laws of possessing such mags are in effect; only pre-bans prior to 2000 are legal, as well as "parts kits". This will eventually go to the full 9th circuit.

As of 1/1/2018, no mags with >10 rounds capacity are legally possessed by ordinary CA residents.

Several years ago there was another Pro 2A decision by a 3 judge panel in the 9th. I believe it was Peruta v San Diego County and dealt with the way this state handles CCW and the requirement for “good cause”.

It was reversed when it went to the full circuit and the federal SC did not take it up.

Disclaimer: all from memory and I’m no legal beagle.