Judge just blocked CA 10 Round Mag Ban

Thanks for the link. Let's hope it holds.

The injunction.

If this stands, it should set a precedent to get these bans overturned in the rest of the country, right?

New York state got away with this exact same nonsense a few years back. The supreme court hasn't taken up that case yet, but it seems like this might force the issue. Hopefully we can put a stop to these unlawful seizures once and for all.

vtsteve said:

If this stands, it should set a precedent to get these bans overturned in the rest of the country, right?

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Right now it is a district court decision. It's not binding on any other courts.

It will likely be appealed to the 9th circuit.

ATLDave said:

It will likely be appealed to the 9th circuit.

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and overturned about 30 seconds into the appeal.

ilbob said:

and overturned about 30 seconds into the appeal.

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And then the 9th People's Socialistic Court of Unconstitutionalism will be repudiated by the Supreme Court. Again.

Time for Congress to disband the 9th Circuit.

The 9th circuit was (unfortunately, IMO) not overturned in the Peruta case. The Supremes refused to grant cert and left the (circular, IMO) 9th circuit ruling standing.

All circuit courts make decisions that get overturned by the Supreme Court. All circuit courts decisions that are the subject of petitions to the Supreme Court are left intact far more often than they are overturned or vacated. Contrary to what some suggest, the 9th circuit is not automatically reversed by the Supreme Court most of the time.

None of us know how the Supreme Court will ultimately rule on a mag-cap law - nor whether they will ever agree to take such a case, much less this particular one.

Injunction only, not overturning the law as I read it. (Maybe Frank can explain it to us better, I am not a lawyer and have no legal background)

Plaintiffs bring facial and as-applied challenges through 42 U.S.C. § 1983 seeking a declaratory judgment that California Penal Code § 32310 (the ban on magazines holding more than 10 rounds) impermissibly infringes on California citizens’ federal constitutional right to keep and bear arms, a right protected by the Second Amendment to the United States Constitution. By this motion for preliminary injunction, Plaintiffs seek only to maintain the status quo until a final determination is made on the merits of their constitutional claims, by temporarily restraining the State from enforcing the dispossession requirement and criminal penalties associated with § 32310 (c) & (d).

And yes sadly the 9th Circuit is not our friend.

NOT LEGAL ADVICE:

That's correct, although for facial unconstitutionality legal challenges, rulings at the preliminary injuctive stage are pretty strongly indicative of how the judge in question thinks the merits will ultimately be decided. And that seems to be the case here, given the district court's language in the decision.

No Circuit in the US is as frequently and with as much exasperation corrected by the Supreme Court as the 9th. The former is a numeric fact while the latter is admittedly somewhat subjective.

I don't want to get into a separate debate about this. As with many things, the truth is more nuanced: http://www.politifact.com/punditfac...-circuit-isnt-most-overturned-court-country-/

More to the point, most circuit court decisions - including those from the 9th circuit - are never the subject of a successful cert petition or other Supreme Court intervention. The Supreme Court lets the huge majority of circuit court decisions stand - even the "wrong" ones. They do not consider their job to be a QC check on circuit courts. They believe they are there to articulate the law broadly and resolve fundamental disputes over what the law is. That means they don't try to "fix" every circuit court decision - even the wrong ones.

Throw in the political calculations of the justices about which cases give them the best chance of getting 5 votes for their views, and projecting Supreme Court outcomes is like betting on sporting events.

https://www.thehighroad.org/index.p...alifornias-high-capacity-magazine-ban.823323/

"In granting the injunction, Judge Benitez explained that Plaintiffs are likely to succeed in this lawsuit because 'public safety interest may not eviscerate the Second Amendment'"


In addition to Duncan v. Becerra, there is another lawsuit by Calguns Foundation.

The case, Wiese v. Attorney General Xavier Becerra, was filed in the United States District Court for the Eastern District of California on 4/28/17 and is supported by civil rights groups The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF) to oppose Proposition 63 and SB 1446 signed by Governor Brown last year - https://www.calgunsfoundation.org/i...on_so_called_large_capacity_firearm_magazines

"Attorney Raymond DiGuiseppe, a former California deputy attorney general who recently defeated former Attorney General Kamala Harris at the California Supreme Court in an important knife case, has joined ... on the lawsuit.

'The inconvenient truth for the government in this case is that its justification for its magazine ban reduces to nothing more than legislative policy choices based on speculative theories about how these standard-capacity magazines could be used to inflict harm – and that is unconstitutional'"

this is actually a pretty limited case that the supreme court might take up because it really doesn't change all that much and whatever way they were to rule would not make all that much difference in the grand scheme of things.

ilbob said:

and overturned about 30 seconds into the appeal.

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Indeed. SCOTUS very recently let Peruta stand.

https://www.nraila.org/articles/201...stay-enforcement-of-california-s-magazine-ban

"Judge Benitez explained that Plaintiffs are likely to succeed in this lawsuit because 'public safety interest may not eviscerate the Second Amendment'"

http://www.foxnews.com/politics/201...gh-capacity-magazine-ban-but-fight-looms.html

"Judge Benitez said he was mindful of voters' approval and government's legitimate interest in protecting the public but added that the 'Constitution is a shield from the tyranny of the majority.'

Gun owner's constitutional rights 'are not eliminated simply because they possess `unpopular' magazines holding more than 10 rounds,' he wrote in a 66-page decision."

There might also be another angle here. the supreme court has ruled on the "keep" part of the RTKBA without directly ruling on the "bear" part. Presumably possession of magazines is mostly within the realm of "keep".

You cannot bear arms without ammunition. Restricting access to ammunition is infringing on the "keep and bear" arms notion.

Imagine the argument that archer can only keep 10 arrows when his quiver could hold 24 arrows?

ilbob said:

this is actually a pretty limited case that the supreme court might take up because it really doesn't change all that much and whatever way they were to rule would not make all that much difference in the grand scheme of things.

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Unless you happen to live in California. Or another state with a similar law. Then it's a very big deal.

ATLDave said:

More to the point, most circuit court decisions - including those from the 9th circuit - are never the subject of a successful cert petition or other Supreme Court intervention.

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Very true. SCOTUS receives 7,000-8,000 appeals for cert each term. SCOTUS decides about 80 cases each term; that's about one percent.

As a litigant (or lawyer for one), planning for the Supreme Court to decide to get involved in your case is like banking on making a sacrifice and having Zeus personally appear and sort things out.

Maybe it will happen. It usually doesn't.

natman said:

Unless you happen to live in California. Or another state with a similar law. Then it's a very big deal.

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By limited I meant that it has more limited potential to disrupt the existing body of law. The carry case had all kinds of potential to be extremely disruptive. This one not so much. I don't know if that gives it a leg up on getting into the Supreme Court or not. It's really hard to get the Supremes to look at any case.

(6/30/17) NRA-ILA - https://www.nraila.org/articles/201...-enforcement-of-recently-enacted-magazine-ban

"Thursday, Second Amendment advocates were cheering a federal court’s opinion blocking enforcement of California’s draconian magazine ban. That opinion, in Duncan v. Becerra, shows what’s possible when a federal judge treats the right to keep and bear arms with the respect deserved by all provisions within the Bill of Rights.

... Judge Benitez held that standard capacity magazines like those affected by the ban are 'arms' within the meaning of the Second Amendment. He further ruled that the law burdens the 'core' Second Amendment right of possessing an arm commonly held by law-abiding citizens for defense of home, self, and state. The burden, he wrote, was 'more than slight' and the ban was neither presumptively legal nor of long-standing pedigree. And even if the ban were subject to the more forgiving brand of 'intermediate scrutiny' under which many gun control laws have been upheld, he found it would not be a reasonable fit with the state’s asserted purpose of public safety because it is squarely aimed at law-abiding persons.

... Judge Benitez also assailed the creeping incrementalism that retroactively seeks to punish facially harmless behavior by upstanding people who are acting in good faith. 'Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining constitutionality,' he wrote. Perhaps not coincidentally, this was exactly the complaint that the NRA and others had raised with the Ninth Circuit’s opinion the Supreme Court had earlier in the week declined to review. By focusing narrowly on the question of whether the Second Amendment was specifically meant to protect concealed carry, the Ninth Circuit had ignored the fact that California has foreclosed every option to lawfully bear arms for self-defense in public.

Judge Benitez framed the questions in Duncan case as whether a law-abiding, responsible citizen has 'a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation' and 'to keep and bear a common magazine useful for service in a militia.' He opined that 'a final decision on the merits is likely to answer both questions ‘yes’… .'

... having a president who respects the Constitution when appointing those judges is a safeguard that no liberty-loving American can overestimate.

Forgive my ignorance here, but haven't 10-round mags been the limit in CA for years now? I have a semiauto rifle (not an AR) that came with a 10-round mag, and while 20 and 30 rnd. mags are available, they cannot be shipped to CA (and other states, I imagine). So, is this decision meant to allow CA gun owners to now purchase 20+ rnd. mags, or just keep those who already own them from being classified as criminals (or both)? I would very much like to have some larger capacity mags for my rifle and still be within the bounds of the law. TIA.

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