CA AW ban struck down.

M

Mk-211

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@LiveLife

And like the mag ban, I'm sure it will have to go to SCOTUS! The 9th will probably violate their oaths and do an en banc "emergency" hearing.

There's already a 10 day waiting (where have we heard this before) period, er... stay on this!

Gotta love Benitez, he added this little tidbit.

Like Baghdad Bob during the first Gulf War in 1991, the State clings to a wish.

The State wants to believe that the firearms prohibited by the “assault weapon” ban are
not commonly owned or are not commonly owned for self-defense.
 

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More facts, used against them.

During the most important period of history, there were relatively few gun
restrictions. This conclusion can be drawn from inspecting the State’s comprehensive
historic law list and it is confirmed by at least one historian. “Between 1607 and 1815 ...
the colonial and state governments of what would become the first fourteen states
neglected to exercise any police power over the ownership of guns by members of the
body politic . . . . These limits on colonial and early state regulation of arms ownership
outlined a significant zone of immunity around the private arms of the individual
citizen.”82 More importantly, it is a conclusion confirmed by the Supreme Court. Bruen
says, “[a]part from a few late 19th-century outlier jurisdictions, American governments
simply have not broadly prohibited the public carry of commonly used firearms for
personal defense.”83


It is remarkable to discover that there were no outright prohibitions on keeping or
possessing guns. No laws of any kind.86 Based on a close review of the State’s law list
and the Court’s own analysis, there are no Founding-era categorical bans on firearms in
this nation’s history. (87) Though it is the State’s burden, even after having been offered a
clear opportunity to do so, the State has not identified any law, anywhere, at any time,
between 1791 and 1868 that prohibited simple possession of a gun. (88)
 
Mk-211 said:
It is remarkable to discover that there were no outright prohibitions on keeping or​
possessing guns. No laws of any kind.​
Click to expand...
Since there was no history of antigun laws in colonial America, the obvious question is why did the Founders consider it necessary to have a Second Amendment?

The answer is that they were looking back at British attempts to disarm the colonial militias (and not the individual colonists). Emblematic of this was the British raid on the militia arsenal at Concord, the incident that sparked the Revolution in the first place. The Founders didn't want a repeat of this, this time with the federal government trying to disarm the state militias.

I still believe that the individual RKBA has some connection to the militia (unlike what Justice Scalia said in the Heller case). But, the "militia" is not the National Guard. It's the militia as it existed in 1791, that is, it includes just about everybody. You're a member of the "militia" simply by being a U.S. citizen. So, you derive the individual right indirectly through the collective right.

Ultimately, this interpretation is stronger for gun rights than the Heller interpretation. It means that the arms that are protected are those in common use in the military, not those in common use in civil society. So, we can all have our "assault rifles" (the true fully automatic ones), no question.

This California case wouldn't even need to be litigated if Scalia had gone in the other, suggested, direction.
 
AlexanderA said:
Since there was no history of antigun laws in colonial America, the obvious question is why did the Founders consider it necessary to have a Second Amendment?
Click to expand...

In point of fact, "the Founders" considered no such thing.

The Bill of Rights was a product of the First Congress as a direct result of every state in the Union demanding it and each sending their own input on what they thought should be in it.

Two states went so far as to make it clear that their own ratification of the new Constitution was conditional on the specific inclusion of a RKBA and if it wasn't resolved to their satisfaction during the First Congress, they'd withdraw from the Union. (New York, ironically, and North Carolina.)
 
I am not a lawyer, just a layperson posting on THR.
Mk-211 said:
@LiveLife

And like the mag ban, I'm sure it will have to go to SCOTUS! The 9th will probably violate their oaths and do an en banc "emergency" hearing.
Click to expand...
Not necessarily.

District court cases appealed to the 9th Circuit are reviewed by 3 judge panel first but can be reheard before en banc panel at the request of parties or circuit judge - https://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_Banc_Summary2.pdf

Following the issuance of a three judge panel order or opinion, parties may seek rehearing before an en banc court. The parties may also elect to bypass that process and seek review by the United States Supreme Court.​
​
Under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a "suasponte en banc call." Under Court procedure, the judge who made the request is not identified.​
​
In Duncan v Bonta (CA magazine ban), district court ruled magazine ban unconstitutional and when appealed to the 9th Circuit, 3 judge panel supported district court ruling but a circuit judge requested en banc hearing where the 3 judge panel ruling was overturned before being appealed to the Supreme Court (And remanded back down for "reconsideration" mandate of "text and history ... tradition") - https://michellawyers.com/wp-conten...erra_Order-Granting-Rehearing-En-Banc_101.pdf

In Miller v Bonta (CA AW ban), district court ruled AW ban unconstitutional and decision was appealed to the 9th Circuit but case was put on hold pending Bruen decision. After Bruen ruling, case was remanded back down to the district court for "reconsideration" and judge Benitez ruled AW ban unconstitutional again. When appealed to the 9th Circuit, 3 judge panel will review the case and following could happen - https://www.firearmspolicy.org/miller
  • 3 judge panel decision reheard by en banc panel
  • 3 judge panel decision appealed to the Supreme Court without en banc rehearing
  • En Banc panel decision appealed to the Supreme Court
In Duncan v Bonta, since the case was already heard by 3 judge panel, district court's "reconsideration" decision post Bruen ruling (After remand back to 9th Circuit then remand back to district court) was appealed to 11 judge en banc panel where majority decided to break court procedure and took the case on "emergency" hearing basis with vehement dissent from minority judges.

In Miller v Bonta, since the case was never heard by 3 judge panel, appeal will be heard by 3 judge panel first and decision could bypass en banc panel and be appealed to the Supreme Court. Only if parties or circuit judge request en banc rehearing will the case be reheard by en banc panel.
 
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