(California) Large-capacity gun magazine possession law on pause while Supreme Court petitioned

[Dial H For Hero]

https://www.sandiegouniontribune.com/news/courts/story/2021-12-21/gun-magazine-supreme-court

A federal appeals court has agreed to put on hold a law that makes it illegal to possess a gun magazine holding more than 10 bullets, to see if the U.S. Supreme Court takes up the case.

An en banc panel of the 9th U.S. Circuit Court of Appeals upheld the law in a 7-4 ruling on Nov. 30. However, gun rights advocates who sued the state over the law in San Diego federal court said they plan to petition the Supreme Court in the case.

The 9th Circuit agreed on Monday to the advocates’ request to stay the possession part of the law for 150 days to allow time for the writ of certiorari to be filed. If the petition is filed during that period, the stay will be extended until the high court makes a determination on whether it will consider the case.

The state Attorney General’s Office, which is defending the law in court, did not oppose the request.

(Excerpt)

[PTWB]

1. I've never really understood the logic of banning standard capacity magazines.

Detachable magazines are designed to be quick and easy to change. Firing 30 rounds with my Glock 19 takes two magazines (one magazine change, or about 1.5 seconds to change magazines)… with a 10 round magazine restriction, I’d be looking at firing 30 rounds in 3 magazines (two magazine changes, or about 3 seconds to change magazines).

Is there any data that suggests we would save a statistically significant number of lives by reducing standard capacity magazines to low capacity magazines?

I understand the argument that even one life is worth saving, but if we are going to be making that argument, there are many more dangerous substances, chemicals, and activities in our society that we should be banning long before we get to standard capacity magazines.

We do have a gun violence problem in our country but at the root of that problem is systemic oppression of minorities and the impoverished. Societal violence is a socioeconomic problem, not a magazine capacity problem.

[AndyS]

4. The problem with your reasoning is that it comes down to

"if we can't save them all why save any"? It also begs the question of walking and chewing gum. It's not a one-at-a-time issue.

On the topic of high capacity magazines you might want to ask Gabby Giffords if having 10 round magazines would make any difference. When Loughner was reloading his second 30 round mag he was taken down by a grandma. Had he reloaded at 10 rounds would it have made a difference? Perhaps we should ask the recipients of the extra 20 rounds.

Then there's the Colorado Movie shooter with a 100 round mag that jammed after only 70 rounds. Or the Las Vegas shooter who had multiple high cap magazines and bump stocks. Yes, fire capacity and cyclic rate make a difference.

I agree with your last line, such things are contributory however they don't exist in a vacuum. It is not a single tiered problem.

[bucolic_frolic]

2. "Arms"

That's all it says. "Arms". The authors has no idea what that meant going forward.

[PTWB]

3. Are you saying that the 2nd amendment shouldn't cover modern arms?

That seems like an argument that wouldn't stand up to any level of scrutiny.

[bucolic_frolic]

5. See? You're interpreting every bit as much as the courts must /nt

[PTWB]

6. I was asking what you were trying to say.

[yagotme]

7. The authors listed freedom of speech, but didn't foresee computers,

or copiers. But here we are.

[PTWB]

8. The Internet isn't mentioned in the Constitution, either.

But our government is prohibited from censoring our speech on forums such as this one. The Internet is no less different when compared to constitutional era communication mediums than modern firearms are different when compared to constitutional era weaponry.

[bucolic_frolic]

9. Shoulder fired rocket launchers and suicide bombers with backpacks are also bearing arms

Just sayin'.

[PTWB]

10. And you can't falsely shout fire in a crowded movie theater.

No one here is arguing that our rights are unlimited and without restriction. The debate is over the reasonableness and effectiveness of restrictions past, present, and proposed.

[Dial H For Hero]

11. Thank you for phrasing that correctly.

The use of the far more common "You can't shout fire in a crowded theater" is a pet peeve of mine.

[PTWB]

12. You're welcome.

If I were in a crowded theater and someone noticed a fire, I’d greatly appreciate them shouting it at the top of their lungs!

[The Mouth]

16. It's sad, though, that this verbiage came out of a terrible decision

That basically justified locking up anti-war protestors.

I mean it's like finding one thing that floats your boat in Dred Scott; maybe it's true but so loathsome was the decision that I hate seeing it.

[yagotme]

18. A shoulder launched rocket would be fun to have/shoot,

an exploding backpack, not so much. I guess it falls to intent of usage. A fella out on the back 40, shooting off an RPG at an old car, I could care less, as long as it's not at another person or other's property. A suicide backpack, well, pretty much has but one use. (I know, anti-gunners use the "Only one use" phrase, but they are incorrect on that.)

[discntnt_irny_srcsm]

13. Responding here to the Founders intent.

Folks on both sides of this conflate the RKBA with the 2A. I think we all know that the 2A doesn't confer, conger or create a right out of some idea or agreement among the Founders. As I understand it, the 2A was intended to protect the RKBA, an inherent and preexisting right, from government. The essential spirit of the Bill of Rights was to limit the reach of government.

Did the Founders imagine we would have machine guns, under-barrel grenade launchers and nuclear weapons? I have no idea. The detailed descriptions for the militia list arms matching what typical soldier would carry. The various militia acts have covered that their are both an organized and an unorganized militia. No where for the first century of US history are their laws on the books that totally deny an individual RKBA.

IMO individuals' rights were to be expressly protected both to the ends of self and state protection. In its wisdom and political evolution government today has found a way to imbue our standing military with the idea that they are not special, not above the law and that they are among the citizenry in general. In the 18th century British troops were doing the bidding of the British Crown. Our Founders sought to prevent such a military here.

Historically the line between standard military arms such as shoulder fired rockets and civilian semi-auto rifles and handguns has moved as to what is permissible/legal. A hundred years ago hardware stores sold Thompson submachine guns. That no longer happens. Case law and state and federal laws have clearly delineated civilian arms.

Many things stop people from obtaining firearms from licensed dealers. I've said here on this site that private sellers should at least have a means of getting a background check for a prospective buyer. Universal background checks would be a good step in the quest for keeping guns out of the wrong hands. That would be worth a compromise like taking suppressors off the list of NFA weapons. A suppressor is not a silencer. A 117+ db noise is anything but quiet. It's worth the trade off. As a comparison, modern testing on a selection of handguns has shown that they produce 156 to 168 dB when firing without a suppressor, and 117 to 140 dB when firing with a suppressor.

So 'arms is all it says' leaving it to the legislatures and courts to interpret. I infer that explains the reference to "animating contest for freedom" written about by Sam Adams.

Have a great holiday week.

[Surf Fishing Guru]

15. Compliment and comment . . .

Awesome post.

The only thing I could add are on this statement:

post #13 by discntnt_irny_srcsm: Historically the line between standard military arms such as shoulder fired rockets and civilian semi-auto rifles and handguns has moved as to what is permissible/legal. A hundred years ago hardware stores sold Thompson submachine guns. That no longer happens. Case law and state and federal laws have clearly delineated civilian arms.

As you make clear the RKBA is an original, fully retained right; no aspect of the possession and use of the personal arms of the private citizen was ever conferred to he federal government (which is to say, never surrendered by the citizen, "We the People" ).

The obverse to that tenet is that "We the People", when empowering the federal government did surrender some specific limited powers over some arms, specifically the weapons of open, indiscriminate warfare. In the founding period private citizens owned warships, through the Constitution that power of citizens to maintain and sail a warship was conferred to Congress in Art I, §8, cl. 11; "Congress shall have the power: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water".

I would argue the principle behind that grant of power is extended through the other (supreme / preemptive) war powers, and the power claimed by Congress to set the rules for the acquisition, possession and use of modern weapons of war like "shoulder fired rockets" (bazookas & RPG's) all the way up to NBC's, by private citizens, are legitimate.

The argument for blanket justification of the limits created by NFA-34 on machine guns, sawed-off shotguns, SBR's/AOW's, is weaker given Miller, but of course Heller diluted that with the elevation, if not making primary over military usefulness, the "common use" protection criteria.

YMMV . . .

[discntnt_irny_srcsm]

17. Thanks

when empowering the federal government did surrender some specific limited powers over some arms, specifically the weapons of open, indiscriminate warfare.

As you say, powers were assigned to the government which include raising a militia to counter attacks on the country and its people. An appropriate division of arms between an active militia or army and individuals has been a topic for the courts and legislatures ever since. Such was the origin of the Miller case. In Miller neither Miller (who was dead) nor his lawyer appeared to make any case nor to present any evidence.

The last time I ask a pro-restriction person here about conflating the 2A with its topic the RKBA I got no answer:
https://www.democraticunderground.com/1172211121#post32

IMO one way pro-RKBA folks 'shoot themselves in the foot' is by referring to "second amendment rights." I am equally offended by the term "gun-control". The RKBA is not derived from the 2A nor does "gun-control" actual control the criminals.

Jefferson: "The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crime... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

[Surf Fishing Guru]

14. I consider this stay a concession . . .

Last edited Tue Dec 28, 2021, 03:24 PM - Edit history (1)

I consider this unopposed stay a concession that the en banc decision in Duncan v Bonta is in error -- along with the 9th's abeyance of Miller v Bonta on Rupp v Bonta on SCOTUS deciding NYSRPA (those pertain to CA's assault weapon ban).

I think the realization has set in that ALL these Circuit decisions sustaining AW bans* and LCM bans will be abrogated by SCOTUS when NYSRPA comes down.

The two step interest balancing inquiry invented and used by these lower courts was discussed in NYSRPA with disdain and in fact, has already been rejected by SCOTUS in Heller.

These Circuits had a good ride ignoring SCOTUS but it's over; thank goodness this episode is only going to last 14 years and not 66 years like the various "collective right" perversions lingered.

*Except for the 4th's Kolbe v Hogan, sustaining MD's AW ban, that "M-16's and the like" kookyness will require a different path.

[The Mouth]

19. Vacated and sent back to the courts

Granted certiorari, vacated by the Supreme Court, and remanded to the appropriate circuits to be heard in light of the Bruen decision.