SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?

Dear members @230RN, @AlexanderA, @Jim Watson, @TomVA, please note the thread separation and topic discussion focus as you may be posting in the wrong thread:
Thank you!
 
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armoredman said:
My friend, you do keep yourself busy. :)
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You don't say. My wife keeps me working so hard in retirement with her never ending "honey do" project/chore list that I actually come to THR to take a "mental break". :)

Monitoring 22LR for lowest pricing keeps me in touch with how current shortage cycle is going - https://www.thehighroad.org/index.p...-shipped-pricing.902560/page-12#post-12672658

I am overdue for my one year update of 30+ brands/weights/lots of 22LR comparison testing at 50/100 yards due to unforeseen family/medical/old pets dying issues - https://www.thehighroad.org/index.p...r-ammunition-comparison.908102/#post-12618883

And here's my list of other mental distractions:
 
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Jim Watson said:
230RN said:
JohnKSa said:
That very important "minor" issue is that SCOTUS has not held that firearm registration is unconstitutional. The NFA doesn't prohibit possession, it only requires registration.

ALexander A said,
"OK then, let them just declare that the Hughes Amendment is unconstitutional, and reopen the registry. And declare that registration is a "ministerial" (routine) act, without long administrative delays."

That statutory $200 tax ... was a proscriptive tax measure designed to limit a constitutional right.

Just a reminder and to emphasize that it was most definitely not a mere tax measure.
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Another tax on a constitutional right was struck down in 1965; the poll tax.

Is the Bad Gun transfer tax analogous?
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Disclaimer: I am not a lawyer, just a layperson poster on THR

As far as I know, that question has not come up for AW/magazine ban cases which sued the states after laws were passed banning certain semi-auto rifles and larger than 10 round capacity magazines, the primary topic of discussion for this thread.

As to Bruen mandate of "text and history" requiring historical tradition of analogous regulation, I do believe that applies to state laws passed but constitutionality challenged in court now with analogous regulation requirement dating back to 1791 ratification of Bill of Rights - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-11#post-12528071

National Firearms Act was act of Congress ("We the People" did this) - https://en.wikipedia.org/wiki/National_Firearms_Act

Now, if "We the People" want to do away with the NFA, then "We the People" can tell Congress to do so (Congress can unilaterally start by defunding executive enforcement agencies like ATF leading to modification of NFA).

But continued discussion of NFA is off topic for this thread and I believe better answers can be obtained from the NFA subforum or perhaps from a new thread discussion in General - https://www.thehighroad.org/index.php?forums/nfa-firearms-and-accessories.58/

Thank you.
 
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Update to Duncan v Bonta (CA magazine ban) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-12#post-12640022

Much anticipated ruling from judge Benitez finally came - https://michellawyers.com/wp-conten...ision-Signed-by-Judge-R.-Benitez2263869.1.pdf

California’s ban and mandatory dispossession of firearm magazines holding more than 10 rounds (California Penal Code § 32310(c) and (d)), as amended by Proposition 63, was preliminarily enjoined in 2017. That decision was affirmed on appeal. In 2019, summary judgment was granted in favor of Plaintiffs and§ 32310 in its entirety was judged to be unconstitutional. Initially, that decision was also affirmed on appeal. However, the decision was re-heard and reversed by the court of appeals en banc. In 2022, the United States Supreme Court granted certiorari, vacated the appellate en banc decision, and remanded the case. The court of appeals, in turn, remanded the case to this Court “for further proceedings consistent with New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).” All relevant findings of fact and conclusions of law set forth in the prior decision concluding § 32310 is unconstitutional are incorporated herein.​
​
< 70 pages later >​
​
VI. Conclusion​
​
Removable firearm magazines of all sizes are necessary components of semiautomatic firearms. Therefore, magazines come within the text of the constitutional declaration that the right to keep and bear arms shall not be infringed. Because millions of removable firearm magazines able to hold between 10 and 30 rounds are commonly owned by law-abiding citizens for lawful purposes, including self-defense, and because they are reasonably related to service in the militia, the magazines are presumptively within the protection of the Second Amendment. There is no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried. The best analogue that can be drawn from historical gun laws are the early militia equipment regulations that required all able-bodied citizens to equip themselves with a gun and a minimum amountof ammunition in excess of 10 rounds.​
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Because the State did not succeed in justifying its sweeping ban and dispossession mandate with a relevantly similar historical analogue, California Penal Code § 32310, as amended by Proposition 63, is hereby declared to be unconstitutional in its entirety and shall be enjoined. At this time, the Court’s declaration does not reach the definition of a large capacity magazine in California Penal Code § 16740 where it is used in other parts of the Penal Code to define other gun-related crimes or enhance criminal penalties.​
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One government solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves. The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen. That kind of a solution is an infringement on the Constitutional right of citizens to keep and bear arms. The adoption of the Second Amendment was a freedom calculus decided long ago by our first citizens who cherished individual freedom with its risks more than the subservient security of a British ruler or the smothering safety of domestic lawmakers. The freedom they fought for was worth fighting for then, and that freedom is entitled to be preserved still.The Attorney General respectfully requests a stay of any judgment in Plaintiffs’favor for a sufficient period to seek a stay from the Court of Appeals. That request is granted. Therefore, the enforcement of the injunction is hereby stayed for ten days.​
​
IT IS HEREBY ORDERED that:​
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1. Defendant Attorney General Rob Bonta, and his officers, agents, servants,employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code § 32310.​
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2. Defendant Rob Bonta shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible forimplementing or enforcing the enjoined statute.​
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3. This injunction is stayed for ten (10) days from the date of this Order.​
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IT IS SO ORDERED.​
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September 22, 2023​
HON. ROGER T. BENITEZ​
United States District Judge​
​
This is first of several anticipated case rulings from judge Benitez with Miller v Bonta likely to be next:
With this ruling, we now wait for Wiese v Bonta (CA magazine ban) summary judgement hearing scheduled for October 30, 2023 at 1:30 p.m - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-12#post-12668659
 
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Continued from post #334 on today's Duncan v Bonta ruling.

We get a glimpse of possible Miller ruling in judge Benitez's Duncan ruling - https://michellawyers.com/wp-conten...ision-Signed-by-Judge-R.-Benitez2263869.1.pdf

D. The Best Analogue: Laws Requiring Citizens to Keep and Carry Sufficient Bullets and Gunpowder for Service in the Militia​
​
California ignores Founding-era laws that present the best analogue to its present day magazine law. These are the manifold early militia laws requiring each citizen, not to limit the amount of ammunition he could keep, but to arm himself with enough ammunition: at least 20 rounds.​
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Government remains fixed on the notion that it alone can decide that anything larger than a 10-round magazine is not “suitable” for a citizen to have. But, there are no analogous cases in our history. There are no cases where American government dictated that lever-action rifles were unsuitable because single shot rifles were good enough, or revolvers were unsuitable because derringers were good enough. These choices have always belonged to the People to decide for themselves how much firepower they need.​
​
The right to have firearms for social security was important at the time the Constitution was adopted ... During the Nation’s founding-era, federal and state governments enacted laws for the formation and maintenance of citizen militias. Three such statutes are described in Miller. Rather than restricting too much firing capacity, the laws mandated a minimum firing capacity. These statutes required citizens to arm themselves with arms and a minimum quantity of bullets and gunpowder, not to disarm themselves. When Congress passed the Militia Act in 1792, the law required a citizen to be equipped to fire at least 20 to 24 shots. A 1786 New York law required “no less than Twenty-four Cartridges,” and a 1785 Virginia law required a cartridge box and “four pounds of lead including twenty blind cartridges.” In 1776, Paul Revere’s Minutemen were required to have 30 bullets and gunpowder.​
​
These and other citizen militia laws demonstrate that, contrary to the idea of a firing-capacity upper limit on the number of rounds permitted, there was a legal obligation for the average citizen to have at least 20 rounds available for immediate use. There were no upper limits like § 32310; there were floors and the floors were well above 10 rounds.229 California’s large capacity magazine ban is a diametrically opposed analogue. (Page 67-69)​
 
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irishlad said:
Excellent ruling!! Very curious to see what logic the 9th court of appeals uses to disagree(if when they do).
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FIFY. It's going to be hard for the en banc panel to come up with a reason to overturn Benitez's ruling, given how comprehensive it is, how forcefully it counters all the state's arguments, and that SCOTUS has already told them once they were wrong. But they have found excuses to reject every pro-2A argument they've ever faced and I think they'd rather eat broken glass than start with this one.

I see one of two things happening; they'll stall for as long as they can or they'll cobble up some reason so it goes to SCOTUS and gets overturned in time for the Democrats to use it as a rallying cry for the 2024 election.
 
I wonder if Hawaii, Oregon and Washington might encourage California to NOT appeal this ruling, since a 9th circuit outcome affirming judge Benitez in this case would then also strike down their magazine capacity bans.
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Possible, not likely.
I may be mistaken but I believe CA will fight it to the end.
While there is risk involved it would probably be best in the long run if CA appeals to the 9th, we win in the 9th and CA takes it back to SCOTUS and we win there.
(but of course that will take years....and even if CA thinks they won't win they will continue wasting tax payer $:mad: and will make every effort to drag it out as long as possible)
If we win in the 9th there are some other states that might urge CA to stop then but CA gov has been beyond listening to reason for a while now, so again, I'm pretty sure they will fight it to the end.

My thanks to the California Rifle and Pistol Association for all they have done in this matter and will continue to do in this matter.
If your not a member and you are in CA please think about becoming one, (people in other areas of the 9th should think about it to, since other states in the 9th, not all thankfully, tend to follow CA on this kind of bovine excrement)and whether you are a member or not sending them $5 or whatever would help the cause. (they don't have our tax dollars to waste)
 
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natman said:
FIFY. It's going to be hard for the en banc panel to come up with a reason to overturn Benitez's ruling, given how comprehensive it is, how forcefully it counters all the state's arguments, and that SCOTUS has already told them once they were wrong. But they have found excuses to reject every pro-2A argument they've ever faced and I think they'd rather eat broken glass than start with this one.

I see one of two things happening; they'll stall for as long as they can or they'll cobble up some reason so it goes to SCOTUS and gets overturned in time for the Democrats to use it as a rallying cry for the 2024 election.
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I was fine the way it was, but if you feel better doing that, glad I could help. :D
 
The 9th now has to take Bruen into account when they make their ruling.

On top of that, 71 pages of Benitez handing CA their butts!

The "state" couldn't even come up with a rebuttal to Benitez's homework assignment.

Just proves this is all just for show and political theater.
 
Mk-211 said:
The 9th now has to take Bruen into account when they make their ruling.

On top of that, 71 pages of Benitez handing CA their butts!

The "state" couldn't even come up with a rebuttal to Benitez's homework assignment.

Just proves this is all just for show and political theater.
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What it shows is that they could care less about the rights of their states citizens and thus are not fit to be in government.
 
Update to Duncan v Bonta (CA magazine ban) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-14#post-12721871

As anticipated, CA filed an appeal with the 9th Circuit - https://michellawyers.com/wp-content/uploads/2023/09/2023-09-22-Notice-of-Appeal.pdf

Ex FPC attorney who I believe is working with CRPA now discuss the recent Duncan ruling and the appeal.

www.youtube.com

Supreme Court Ruling & Remand Order Strikes Down "Large Capacity" Magazine Ban!!!

In this video I break down the critical magazine ban decision and what happens now!🇺🇸 Support the Channel🇺🇸Join USCCA http://usccapartners.com/armedschol...
www.youtube.com www.youtube.com
 
Continued from post #334 and post #345 regarding Duncan v Bonta judge Benitez ruling and CA appeal to 9th Circuit with possible update to come after Monday.

Mark Smith from Four Boxes Diner breaks down the details of judge Benitez ruling and discuss how this comprehensive 71 page ruling applying the "text and history ... tradition" Bruen mandate could set the standard for other 9th Circuit cases post Bruen ruling regarding "inferior vs superior courts" and legal test for "arms cases" for the nation. (Remember that justice Thomas stated that "Second Amendment is not a second class right" and we are currently following the footsteps Supreme Court took to uphold First Amendment that led to permanent enforcement and just the same, Supreme Court is laying down the foundation for Second Amendment permanent enforcement building on Heller, McDonald, Caetano, Bruen rulings with growing list of cases headed for the Supreme Court)

In Duncan v. Bonta, Judge Benitez issued an order stating that California's magazine ban was unconstitutional under the 2nd Amendment. California filed an emergency motion seeking to stay that ruling. Mark Smith Four Boxes Diner discusses the merits of California's motion here.​
​
0:00 Major 2A Breaking News!​
0:53 California Files Emergency Motion​
2:09 California's Terrible Arguments​
5:00 Caetano Numerical Threshold​
6:35 Heller Legal Standard & Bruen Methodology​
9:03 Historical Analogues & Examples​
10:40 SCOTUS Has ALREADY Settled This...​
13:33 Burden is on Gov't ONLY​
15:33 Inferior vs Superior Courts​
17:09 CA's Huge Mistake!​
21:01 10 Round Mag Ban is Actually Firearms Case​
23:10 Misunderstanding of In Common Use Test​
24:52 Why Certain Guns Are Used Doesn't Matter...​
28:13 Gun Industry Argument​
30:50 Thank You!​
​
www.youtube.com

DUNCAN v BONTA: California's Emergency Motion to 9th Circuit in Benitez MAG Case Looks Like a LOSER

In Duncan v. Bonta, Judge Benitez issued an order stating that California's magazine ban was unconstitutional under the 2nd Amendment. California filed an em...
www.youtube.com www.youtube.com
 
Constitutional attorney Mark Smith from Four Boxes Diner discuss CA appeal to 9th Circuit en banc "emergency" panel.

California magazine ban: Did judge Benitez have a master plan for Duncan v Bonta?​

In light of the recent decision by an en banc panel of the Ninth Circuit Court of Appeals to jump in and decide for itself a pending emergency motion for a stay of Judge Benitez's ruling, there have been some questions about why Judge Roger Benitez decided to release his Duncan v. Bonta opinion during September 2023. Mark Smith Four Boxes Diner addresses some of these questions and theories floating around the Internet.​
​
www.youtube.com

CALIFORNIA MAG BAN: DID JUDGE BENITEZ HAVE A MASTER PLAN FOR DUNCAN v. BONTA?

In light of the recent decision by an en banc panel of the Ninth Circuit Court of Appeals to jump in and decide for itself a pending emergency motion for a s...
www.youtube.com www.youtube.com
 
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CRPA president Chuck Michel discuss Duncan v Bonta case and what's anticipated from 9th Circuit en banc panel:

0:00 - Intro​
0:56 - How did this Lawsuit get here​
7:44 - Irregularities and Silver linings​
15:04 - Expectations vs. Realities of an En Banc Panel​
18:00 - Duncans Outlook​
20:04 - Final Thoughts​
23:40 - Outro​

www.youtube.com

Unprecedented! Duncan v Bonta Skips 3 Judge Panel!

Unprecedented! Duncan v Bonta Skips 3 Judge Panel!Join CRPA here to keep fighting!!!!!https://crpa.org/membership/https://crpa.org/news/To become a member of...
www.youtube.com www.youtube.com
 
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Here we are with stay expiring and I am interested in how the 9th Circuit's "not typical" taking over the case by panel of judges will proceed since the Supreme Court already remanded the case back down saying the 9th Circuit got it wrong post Bruen ruling. ;)

And interestingly, while CA argued that magazine is not an "arm" and not "essential" to firearm, judge Benitez pointed out CA's Unsafe Handgun Act requirement of magazine disconnect mechanism makes magazine essential to handgun operation (Can't even fire a chambered round without inserting the magazine). :oops::rofl:

I am making more popcorn as I think things will and can get very interesting and perhaps entertaining ... Let the hand waving begin.

Excerpts from judge Benitez ruling proving magazines are indeed "arms" and "essential" component of firearm for the 9th Circuit judges to ponder/contemplate - https://michellawyers.com/wp-conten...ision-Signed-by-Judge-R.-Benitez2263869.1.pdf

... according to Heller. And it is now clear that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (Page 10)​
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A. Magazines Are Protected “Arms”​
​
The State argues that larger capacity magazines are not “arms.” First, the State argues that magazines are not essential to the use of firearms and consequently would have been thought of as accessories. But magazines are “integral components to vast categories of guns.” Fyock v. City of Sunnyvale ... “Most pistols are manufactured with magazines holding ten to seventeen rounds, and many popular rifles are manufactured with magazines holding twenty or thirty rounds.” Kolbe v.Hogan (Page 15)​
​
... “without bullets, the right to bear arms would be meaningless.” This is because the right to keep firearms for protection implies a corresponding right to obtain the bullets necessary to use them.“ The possession of arms also implied the possession of ammunition.” ... "necessary to render those firearms operable.” ... in self-defense ... to effectively load ammunition into the firearm.” ... inserted magazine, or as a separate ammunition feeding component, magazines are usable “arms” within the meaning of the Second Amendment.​
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As the Third Circuit Court of Appeals found, “[w]e therefore must first determine whether the regulated item is an arm under the Second Amendment. The law challenged here regulates magazines, and so the question is whether a magazine is an arm under the Second Amendment. The answer is yes.” (Page 16)​
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... State says: (1) a magazine of some size may be necessary, but a magazine larger than 10 rounds is not necessary to operate a firearm and thus a larger magazine is not a protected “arm”; and (2) statistically people rarely fire more than 10 rounds in self-defense so it can be said that a magazine larger than 10 rounds is rarely used for self-defense, and if a larger magazine is not commonly used for self-defense then it is not a protected “arm.”​
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... Court disagrees. The Supreme Court has not described protected arms in subdivided categories. When Heller found handguns were protected, it did not distinguish between semiautomatic pistols and revolvers. Heller did not classify protected handguns according to the number of rounds one could hold or the caliber of the ammunition that could be fired ... both firearms and their magazines (of all typical sizes) are “arms” covered by the text of the Second Amendment. (Page 17)​
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As this Court has said before, “[n]either magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment . . . But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.” Using reasoning that is still persuasive, the Ninth Circuit agreed, explaining “[p]ut simply, a regulation cannot permissibly ban a protected firearm’s components critical to its operation.” (Page 18)​
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... another state law known as the Unsafe Handgun Act requires new semiautomatic pistols to have an integrated magazine-disconnect mechanism in order to be sold to the public. A magazine-disconnect mechanism prevents a pistol from firing at all, even if one round is left loaded in the chamber, if the magazine is not inserted into the pistol. The state-mandated magazine-disconnect mechanism thus prevents the operation of the firearm without its magazine. :oops::rofl:​
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While rifles are not required to have a magazine disconnect mechanism, the State must concede that at least for semiautomatic handguns the State deems “not unsafe,” firearms for self-defense will not function without a magazine. :oops::oops::oops: Modern magazines, submits the State, are more like founding-era cartridge boxes or “ancillary equipment associated with soldiering” that were not strictly necessary to fire a gun. Today, however, as pointed out above, some semiautomatic firearms will not function at all without a magazine, while others can fire no more than one round. (Page 19)​
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... As such, a magazine is an essential component without which a semiautomatic firearm is useless for self-defense. Therefore, a magazine falls within the meaning of “arms.” (Page 20)​
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... Applying the same measure to magazines, because it is the case that magazines holding more than 10 rounds are owned and possessed by millions of Americans to meet a subjective need for self-defense, this fact alone entitles such magazines to Second Amendment protection. When a magazine is commonly owned by Americans with the subjective intention of using it for self-defense, it is enough to say that it is in common use (or typically used) for self-defense, as the Supreme Court employs the phrase in its opinions. (Page 25)​
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III. BRUEN AND THE MAGAZINE CAPACITY LIMIT​
​
... This Court concludes, once again, that manufacturing, importing, selling, giving, loaning, buying, receiving, acquiring, possessing, storing, or using commonly-owned magazines capable of holding more than 10 rounds for self-defense at home or in public is protected by the Second Amendment. (Page 36)​
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A. Remand for Bruen Review​
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This case was remanded from the United States Court of Appeals for the Ninth Circuit in order to consider the challenged laws under the recent Supreme Court decision in Bruen. Under Bruen, the government must affirmatively prove that its firearm regulation is part of a constitutional historical tradition. It is the same text, history, and tradition standard the Court used in Heller and McDonald. What is different is that the old means-end, interest balancing, tiers-of-scrutiny test is no longer viable. The State now has a second chance to defend its large capacity magazine ban and must do so applying the Bruen test.​
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Bruen says,​
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When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”​
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i. Already Determined: No Historical Pedigree​
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This Court previously determined that a ban on magazines able to hold more than 10 rounds has no historical pedigree. (Page 37)​
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Before Bruen, the State unpersuasively argued that its magazine capacity restriction was analogous to a handful of state machinegun firing-capacity regulations from the 1920’s and 1930’s and one District of Columbia law from 1932—a law the Supreme Court ignored while dismantling the District of Columbia’s handgun ban in Heller. That argument remains unpersuasive today. That was pre-Bruen. Bruen invites a look farther back into the Nation’s history. (Page 38)​
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V. ANALOGUES​
​
... compared to muskets of the colonial era, a Glock 17 with its 17-round magazine clearly represents a dramatic technological advancement. On the other hand, the lever-action repeating Henry and Winchester rifles popular at the time of the Fourteenth Amendment were already dramatic technological advancements in firearms. These popular lever-action rifles had large tubular magazines that held a lot of ammunition and could be fired multiple times in succession, accurately and quickly. Yet, there are no state prohibitions on possession or manufacture of these lever-action rifles in the State’s law list. (Page 58)​
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... Government remains fixed on the notion that it alone can decide that anything larger than a 10-round magazine is not “suitable” for a citizen to have. But, there are no analogous cases in our history. There are no cases where American government dictated that lever-action rifles were unsuitable because single shot rifles were good enough, or revolvers were unsuitable because derringers were good enough. These choices have always belonged to the People to decide for themselves how much firepower they need. (Page 68)​
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... Because the State did not succeed in justifying its sweeping ban and dispossession mandate with a relevantly similar historical analogue, California Penal Code § 32310, as amended by Proposition 63, is hereby declared to be unconstitutional in its entirety and shall be enjoined. (Page 70)​
 
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