BREAKING: Justice Kennedy Asks Sunnyvale, CA for Response to Motion to Stay High Cap Mag Ban

Damon Root at reason.com is reporting on what could be another interesting development in California. Fyock v. City of Sunnyvale has been winding its way through the lower courts. The plaintiffs argue that the city’s high capacity magazine ban is unconstitutional. So far, they’ve been unpersuasive. The plaintiffs’ latest move was to ask the SCOTUS (specifically Justice Anthony Kennedy who oversees the ninth circuit) for an emergency stay in order to preserve their 2A rights while the case is pending. As Root writes, “Something in that emergency motion appears to have caught Kennedy’s attention, because earlier today the justice asked the city of Sunnyvale to submit a response to him by 3 P.M. on Wednesday. Is Kennedy seriously entertaining the idea of putting the ban on hold while the case is fought out in court? We should have an answer later this week.” Watch this space.

comments

  1. avatar Excedrine says:

    Hmmmm. Interesting. If a hold is put on the ban, even then that would send shockwaves through the Kalifornian wing of the civilian disarmament industrial complex. What if the ban is declared unconstitutional? What kind of effect would that have on them?

    They would probably be sounding “CODE BROWN.”

    I’m still waiting tentatively for the results of the en banc review of the other case that sits at the 9th.

    Are the anti’s really going to start losing this much ground in their own backyard?

    1. avatar Daniel Silverman says:

      I am hoping he does put a stay in place. No reason to make criminals out of law abiding citizens.
      to that end right now there has been no ruling on the En Banc. All Harris asked was to be added to the case. I don’t even know if she will.
      We also have oral arguments on the Pena case which is the hand gun registry. I hope it is considered null and void with no stay. That would send Moms Need Action into a hissy fit of epic proportions!
      We also have the ten day wait in court as well.

      1. avatar Dirk Diggler says:

        actually, the more I think about Harris (not in the Shannon Watts way)(comment moderated 🙂 ), I start to wonder if her motion to intervene is not subject to Rule 11 sanctions as she turned down an opportunity to participate in the suit much earlier in the litigation. I need to look at my rules of civil procedure again, but it strikes me as an attempt to delay unnecssarily, etc.

        1. avatar Avid Reader says:

          I sincerely hope you’re correct. I’ll be watching this space for your further commentary.

        2. avatar Mark N. says:

          No doubt Rule 11 applies (as it applies to all pleadings filed in a federal court), but I seem to recall that she did not sign any of the briefs, so if sanctions are assessed, only her minions will get hammered. and having read the briefs, plus Michel’s comments, I think sanctions will be a very serious concern.. Michel is relying on pleadings filed in the Mehl case, but I think there are several other cases as well where the AG has been sued and successfully extricated itself based on arguments that are entirely inconsistent with those presented in support of the intervention motion.

      2. avatar Excedrine says:

        No reason to make criminals out of law abiding citizens.

        Tell that to the DISconnectedcut, Barryland, Screw-You Jersey, Taxachusettes, and Zoo York legislatures, too, while you’re at it.

        Hopefully Harris is not added to the case, as she had her opportunity much, much earlier and she quite clearly missed the boat when she abstained. That was her mistake, and since she made that bed she should be made to sleep in it.

        The handgun registry should damned well be declared null and void with no stay. I hope that goes before the 9th and, failing that, up to the SCOTUS.

        Even we can score even a minor victory in any of these case, MDA will have a conniption fit, which I shall celebrate with song, dance, and draft Irish ale.

      3. avatar Randy Drescher says:

        Fingers crossed for you here in Wi. Dan.

  2. avatar Jake Tallman says:

    God, I’m so thrilled with some of the recent court rulings coming out of CA regarding our gun rights. Having lived there for 14 years, I never thought I’d see such things (NorCal tends to be more pro-gun, but SoCal has significantly more people and tends to be extremely anti-gun), but these victories are major ones. I think concealed carry is probably the most important aspect of our gun rights, and probably the one most antis want to see abolished the most (though they focus on civilian versions of assault rifles because that’s the low-hanging fruit). The fact that CC laws have come so far in the last few decades bodes extremely well, especially given the challenges of anti-CC laws in places like CA and IL.

    1. avatar William Burke says:

      I’d still recommend caution in your enthusiasm. It could be we’re being set up.

      1. avatar DrVino says:

        for what?

        1. avatar Ralph says:

          Interplanetary invasion.

      2. avatar Jake Tallman says:

        I don’t see how. These are significant victories for us, and I can’t think of any way the antis could be allowing this because of an angle. These are also indicative of how weak the anti-gun movement has become. Sure, you have the major players. Fienstien, Bloomberg, Watts, etc. who will continue to scream bloody murder and pump money into the movement, but such crippling defeats in their own backyard (and one of the most anti-gun places in the country) do NOT bode well for the entire movement.

    2. avatar CPT Obvious says:

      They’re still reeling from monster bong hits last New Years. They thought they were voting for more Cheetos.

    3. avatar CA_Chris says:

      It’s not North vs South, it is Sacramento and the SF and LA regions vs the rest of the (very large) state.

  3. avatar Accur81 says:

    Woah!!!

    Does this mean my .30 Cal AR that can fire 30 clips in half a second is now legal?

    1. avatar BillF says:

      Not if it’s a ghostgun!

      1. avatar Daniel Silverman says:

        I have been searching California high and low with a full spectrum camera, MEL meter, and even rim pods, but no ghost guns so far… I think it is a big hoax! 🙂

        1. avatar michael nieto says:

          I hope you have a proton pack just in case

        2. avatar Marcus Aurelius says:

          Have you tried a seance?

        3. avatar J in OR says:

          Don’t cross the streams!

    2. avatar Avid Reader says:

      Does it have the thing that goes up? And the disposable magazine clips?

  4. avatar Cliff H says:

    I think it is incorrect to describe California as the anti-2A crowd’s “own backyard.” They are more like squatters who built a shack on someone else’s property who must now go through all kinds of legal machinations to have them evicted rather than chasing them off with a shotgun.

    1. avatar DrVino says:

      Nice analogy.

    2. avatar Rick says:

      Yes, I spent 13 years (1980-1993) in California during my Navy career.

      The constant thought on my mind was “THESE are the ‘Sons of the Pioneers’?”

      1. avatar Ralph says:

        Well, they were the sons of something, but not the sons of Roy Rogers’ backup group.

        1. avatar peirsonb says:

          Dating yourself, Ralph.

      2. avatar CA_Chris says:

        No, actually most are descended from folks who immigrated into CA during the dust bowl and WWII, or later. They aren’t the goldminers and explorers, they are the folks who never owned the land they worked and were driven West in their search for easy living and low-hanging fruit.

  5. avatar jack says:

    Can someone please explain this to me. If we win this case, will we be able to have standard capacity magazines in California?

    1. avatar PPGMD says:

      Unlikely, the court will probably just look at these particular laws which ban pre-ban magazines, not at the magazine ban as a whole.

      But hey you never know, they might decide to rule on the magazine ban as a whole.

    2. avatar Accur81 says:

      I’ve given up trying to understand the CA legal process. And I’m in law enforcement, in the LA area.

      1. avatar NYC2AZ says:

        Without revealing too many details about which dept you’re with, what is the opinion within your department on Peruta and the possibility of shall issue? Is it even discussed?

        1. avatar Accur81 says:

          My personal opinion is that “May issue” clearly favors those who are politically connected. Many CCW in the LA area had given presents to or thrown parties for Lee Baca. Virtually everyone else was rejected. Most people in our department are pro-gun. Some are not. I suspect if anyone was subjected to reality and facts long enough, that they would be pro-gun as well.

        2. avatar NYC2AZ says:

          Thanks for the info Accur81.

        3. avatar rlc2 says:

          PS to A81: you are not alone in trying to figure out the CA legal process with no luck. Not being a lawyer I have to google every other word it seems. And that doesnt even begin to help understand the process, which is arcane as he!!, much less the inside politics of the courts.

          My take on reading Calguns.net for a few years is that the understanding has evolved, along with the quiet realization that its a 3D chess game at the level where Gura and Michel and SAF/NRA are playing, and at some point- you want to hold your cards close to your chest, if only to avoid tipping off the other side.

          More important, its also clear that the many years of historical analysis of the Founders writings, as I believe Volokh pointed out, have given the legal substantiation for evolved views which led to the Heller and McDonald decisions, and as Ralph here and others have said gave the 9th majority such a strong base to deliver a truly impressive legal decision in Peruta with clarity and power of that step by step strategic precedent foundation.

    3. avatar Daniel Silverman says:

      No, but it does help.
      The ban in Sunnyvale, and also San Francisco includes possession, even ones purchased back in the day. These are baby steps and having the local law thrown out means that an attempt at a state law would be fruitless.

    4. avatar Mark N. says:

      As discussed around here yesterday (the Volokh article) mag limits are most certainly arbitrary, but there is a good chance that they will be upheld in one form or another, unless the courts really get serious about intermediate scrutiny–which so far they have not, waiting on the Supreme court to set the standard (which it so far has declined to do). One of the issues that may have caught Kennedy’s eye is that the ban is retroactive to include mags that are currently legal under State law (grandfathered at the time of the enactment of the 10 round limit in 2000), and there is nothing in the law requiring the banning public entity to pay owners for their confiscated property.

      1. avatar rlc2 says:

        Mark, I haven’t read back to yesterdays post on Volokh, but reading his pdf in the UCLA law review, I have one quibble about his conclusion that magazine limits are probably ok- using his own proposed danger burdens, and the idea that the militia should generally be equipped with the weapons of the day, to defend themselves from bad guys and bad governments,

        Volokh refers to revolvers, with 5 or 6 rounds between reload is a reasonable standard of a limit without a danger burden to the citizen, and some standard set in 2000- sorry forget which.

        Yet he forgets it was the Miami shootout in 1996 who were hopelessly out-gunned when relying mostly on those same revolvers,

        which forced the FBI and multiple LE agencies around the country to update to more powerful semi-autos- read the Glock book for the history.

        And more recently, the LA Bank Robbery forced many PDs to re-evaluate the “poodle shooter” patrol carbines, as those were not heavy enough to stop those bad guys in body armor.

        Certainly 10 (or 7) rounds of semi-auto in either handgun or your MSR wont last long in a gun-fight in a mall, or school, or on the street, when the bad guys routinely disobey the law and carry the standard 30 round mags in ARs, and 15 plus in semi auto handguns.

        Following Volokhs, and the ignorant lefties logic, rather than the conclusions of the pro’s- the cops on the street on what works, today…

        well, we might as well all go back to shooting black powder Brown Bess’s, to be reasonable…

        1. avatar Scott P says:

          The shootout was in 1986. You are 10 years too late.

  6. avatar PPGMD says:

    As a matter of practicality, it makes sense to issue an injunction to prevent the enforcement of the law, as once the city gets the pre-ban magazine they will likely destroy it. And it isn’t like the city can just go buy a replacement magazine and declare it pre-ban.

    So if the law gets overturned, the result is the same they people that owned pre-ban magazines will no longer have them. So even if Justice Kennedy agrees with the law, it only makes sense to prevent the enforcement until people get their due process.

    1. avatar Daniel S. says:

      Hmm.. Ban a firearm/firearm related item > Confiscate > Destroy > Profit > Ban declared unconstitutional > “Oh no your stuff has been destroyed, Sorry bro.”

      very smooth civilian disarmament complex.

    2. avatar Mark N. says:

      Actually they could. It’s not like mags have a manufacturing date.

  7. avatar Sammy says:

    Is this the same Justice Kennedy that advocated the repeal of the Second Amendment, or am I mistaken?

      1. avatar Sammy says:

        Thanks. By record is Kennedy pro or anti?

        1. avatar Felix says:

          Swing vote generally. I get the feeling that he’s not anti-gun, but open to reasonable restrictions, for unpredictable and variable definitions of “reasonable”.

        2. avatar Ralph says:

          Kennedy voted with the pro-2A majority in Heller and McDonald.

    1. avatar ropingdown says:

      It is interesting that Justice Kennedy is a Sacramento native, appointed by Ford to the 9th Circuit, then by Reagan to the Supreme Court. What is interesting is his view on the importance of letting the small-d democratic experience on the ground in the states develop when possible before SCOTUS is called upon to rule on an evolving right which is rooted in the Constitution, but which must be interpreted in our era, and brought to a more uniform understanding among the various states, much as Brown v. Board did decades ago. Say what you will, 2nd amendment law is evolving rapidly. Kennedy was with the majorities in Heller and McDonald, but also wrote the majority opinion in United States v. Windsor, which held that §3 of the Defense of Marriage Act (DOMA) was unconstitutional. I take it as heartening, then, that Kennedy (the un-Scalia regarding Originalism) joined the Heller majority. It indicates that the Court really is moving to give the 2nd amendment teeth, both from originalist and evolving rights interpretations of basic constitutional rights. Certainly there has been wide fermentation of the 2nd amendment issues in the various states and circuits by now. The time may have come, in Kennedy’s view, at which the court can rule on more 2A cases, developing a somewhat more specific jurisprudence of possession and carry. I don’t think it would be foolish to suppose that Justice Kennedy’s closeness to the 9th Circuit is reflected in Peruta.

      1. avatar rlc2 says:

        More info here on Fyock v Sunnyvale at the Calguns forum:
        http://www.calguns.net/calgunforum/showthread.php?t=867249

        Its current as of this post, at 231 posts/six pages, total, and for any new to the forum, you can start at the beginning, or skip to more current status at about #220. Theres a link and a good explanation about the motion by Michel and Associates, the Attorneys for the petitioners, at #230.

        Kudos to Calguns and NRA. Nice work Michel and Associates.

    2. avatar mrvco says:

      No, but I believe that Justice Kennedy was the deciding vote greenlighting Obamacare.

      1. avatar HamChuck says:

        Pretty sure it was Roberts.

      2. avatar jerry says:

        Nope, it was Roberts

  8. avatar Nighthawk says:

    If they can get a stay of execution for a convicted serial killer while they investigate whether lethal injection is “humane”, they can stay this ridiculous, unconstitutional magazine ban. Additionally high capacity magazines need to be accurately defined as “any magazine made to an aftermarket specification that is not what the manufacturers developed the firearm around”: 30 rounds for AR-15s and AKs, 20 rounds for most 30 cals, etc. etc.

    1. avatar Randy Drescher says:

      To be fair, what they meant was their f’n potheads declared them illegal while they were high.

  9. avatar Daniel says:

    I have tried to read more info on this sace and have yet to see any mention of state preemption in firearms laws or if it would apply here.

    1. avatar Ron says:

      There is a separate lawsuit being fought in the state courts regarding the preemption issue. This Sunnyvale lawsuit is challenging the law on constitutional grounds. Ultimately if the plaintiffs prevail this may mean the death of California’s magazine limits. That is likely several years away though and the current issue is simply to allow the plaintiffs (and others) to be able to keep their pre-ban magazines in the city while the case is being fought.

  10. avatar ST says:

    I used to think CA was Ground Zero for the Disarmament Lobby. Yet, whilst wearing an Endo Apparel “Keep Calm and Carry One” tshirt , on Hollywood Blvd. no less, I got a thumbs up from a passers by.

    The Times, they Are A Changin….

    1. avatar Ralph says:

      They probably thought it was a t-shirt for a new boy band.

  11. avatar Ralph says:

    Is Kennedy seriously entertaining the idea of putting the ban on hold while the case is fought out in court?

    Read the Cato Institute amicus brief in Drake, presently pending at SCOTUS. Cato posed the question:

    “Was this Court serious in District of Columbia v. Heller when it ruled that the Second Amendment protects the individual right to keep and bear arms?”

    Good question. Between Drake (petition for cert under consideration) and Abramski (opinion due), we will know the answer.

  12. avatar Jonathan - Houston says:

    Kennedy’s wishy-washy and revels in his swing vote status. With the court locked up, 4 rabidly partisan liberals vs. 4 intellectually honest conservatives, he sits in the middle and holds court. Literally.

    Some describe his philosophy as moderate-conservative or centrist. Some say he just focuses on his legacy and how he’ll be remembered. Toward that end, he supposedly wants to be on the right side of history. He votes the way he feels the momentum is already moving, so as to be with now the side that would be the eventual winner later, anyway.

    I’m not a lawyer, let alone a Constitutional scholar; but I do read most of the Court’s major cases’ majority, concurring and dissenting opinions each term. Kennedy’s writings seem to me a mash-up of competent, if perfunctory, rote legal reasoning, which people pick up on as “conservative”, and stilted, national mood idealism, which others interpret as liberal.

    I see him more as the same pathetic, politicians’ bagman he was back in 1960’s California private practice, doing things then that have since been made illegal, and less as the grand philosophical thinker of his own hopeful imagination. But a vote is a vote, and I’ll take his whenever I can get it.

    So why’s he considering the stay and requesting the city’s response? My guess: partly because he wants to be viewed as fair, partly because pro-2A has racked up some wins lately and he wants a foot on that bandwagon, and partly because he wants people out there to obsess over him and speculate about his actions.

    1. avatar Felix says:

      “4 intellectually honest conservatives”? Not even Thomas fills that bill. Every single justice is partisan as all get out. Not a single one is consistent in their interpretation of the Constitution.

      1. avatar Jonathan - Houston says:

        I was being generous, VERY generous, with Roberts, but I stand by the rest. Even Roberts is good in general. He just chokes on some of the big cases. Obamacare, for example.

    2. avatar ropingdown says:

      I’ll stick up for Kennedy, though I don’t agree with all of his conclusions. He is on the record in favor of observing the diverse evolving views on a constitutionally sensitive issue before the court rules on it in any broad or deep way. What this means (to me, at least) is that his views (whether on gay rights or gun rights) are more likely to attract a majority than would Scalia alone. That is not a trivial fact in the current setting. He will not have wanted to stand with the holdings in Heller and McDonald only to see them trivialized in practiced. With Peruta ticking its way to either SCOTUS or simply circuit-level authority, his evolving views are a positive for us. Kagan could well come to a consensus with Scalia and Kennedy on 2A issues. It is time to establish the breadth of the right in practical living terms. More effective self-defense against violent crime is, really, part and parcel of a broad realignment of the US criminal justice system. Next will be the reduced non-rehabilitative use of jail for minor crimes and substance-abuse offenses, an issue Kennedy has been vocal about.

      1. avatar Jonathan - Houston says:

        The criminal justice system, with rare Constitutional exception, rightfully belongs in the political process for policy decision making, not the judicial system. The Supreme Court was never intended to be the Super Senate.

        1. avatar ropingdown says:

          Criminal Justice System is a synonym for “The system which uses the force of the state to investigate, arrest, judge, and incarcerate (mostly) citizens.

          Each of the steps are subject to decisions by a judge, either the trial judge or appellate judges. The legislature plays no active role, and indeed the constitution forbids that by prohibiting ex post facto laws. It has been this way since the the founding. The legislatures have never paid particular attention to the rights of citizens nor the constitution. The judges are required to protect both to the extent they can.

          I am not so sanguine when the court creates a new right freed from potential legislative veto by claiming it emanates from some more obvious right, but I’m glad to have the Court breathing down the neck of the courts and law enforcement, as little as it does so. The court reacts to cases. The legislatures react to voter sympathies of the moment. Turning around legislation once passed can prove impossible notwithstanding majority opinion among the public: That is not the institution providing vigilance over my right to a free trial based on untainted evidence.

  13. avatar John C says:

    Could a ruling effect the magazine ban in Colorado or Connecticut somewhere down the road?

    1. avatar mrvco says:

      Maybe I guess… eventually… but I’d rather regain some ground at the ballot box in 2014.

      1. avatar John C says:

        That’s a given I think. The Hick is done. I think we get control of the State Senate. And at some point the magazine ban in Colorado will be overturned in the courts.

  14. avatar JoshuaS says:

    Live in Southern California and have lived in the Bay Area. Will have to say, working at various venues in LA and Hollywood (I was born and raised in So Cal but never before this year saw the Hollywood sign or the award walk) I have heard nothing but support of Peruta and CCW and all that. Many I have talked to wouldn’t like AZ Constitutional carry, or open carry, but were supportive of CCW with a background check.

    That is significantly different than the politicians make it out to be.

    When I lived in the Bay Area there was more hostility, but even then, even in Berkeley I knew many gun owners….living within blocks of UC Berkeley.

    The thing is people vote either based off brand loyalty or a handful of issues, at best. The average Californian is at least not staunchly anti-gun, but it is also not that important to him. He votes for the gun grabber for other reasons. I think where the real change is that more people, especially thanks to the media’s coverage (and even exaggeration) of the effect of Peruta, are voicing support for at least less gun control than what we have.

    Do remember, that anti-gun initiatives have consistently failed to make it to the ballot, and the last time one did (prop 15, effectively a ban on handguns) it went down in flames.

    If we get more and more CCW (even say merely doubling the current number) that will further erode support for gun control as nothing ill comes from it.

    1. avatar ropingdown says:

      Interesting. It is one of the particular functions of the Supreme Court to uphold the constitution, including the bill of rights, when popularly elected officials forget that democracy can only nullify constitutional rights through constitutional amendment. I am hoping that the Court continues to take this duty seriously in regard to the 2nd amendment. It has been a long time coming.

  15. avatar rlc2 says:

    From the Reason piece:

    “By contrast, the lower courts have endorsed a “Hobson’s choice,” requiring otherwise law-abiding gun owners to either hand over their property “or continue exercising their constitutional right to possess the items in violation of the law, subjecting themselves to criminal penalties.”

    Sounds a lot like CT. Hopefully Justice Kennedy will see the wisdom of de-fusing the same powder keg in CA, that the wanna-be cool kids in Sunnyvale copied, from the wanna-be cool kids in CT- the Dem Gov and state legislators who unwisely set THAT one up to blow there.

    Where do we the people find these prog-tard nitwits who believe “They Know Best for All the Rest of Us?”

  16. avatar jwm says:

    I’ve said it before and I will keep saying it. If we break gun control in Ca, then it’s finished. The gun market alone is ginormous here.

    I have lost count of the number of immigrents that have asked me questions about how to buy a gun and if they could. It seems as if the first thing they do when they get here, after securing a job and place to live, is find out what it takes to buy a gun.

    Constitutional carry by the end of the decade. Nationwide.

    1. avatar B says:

      I can only hope. Its amazing the difference a year makes. 12 months ago we were staring down the barrel of unstoppable national UBC and a new AWB while antis danced in the blood of the innocent. CT and Maryland are going dark pending some appeals, but we got shall issue CCW in Cali and Illinois, normal priced AR’s and ammo (save 22lr,) and most importantly momentum to take back the rights that have been stolen from us. People want to know more about their rights, both gun and natural born.

    2. avatar rlc2 says:

      JWM Thanks for that ground truth. I’m seeing much longer waits for range time at indoor ranges and note a new upscale LGS in an affuent subourb that tends to be slow to approve anything controversial. Solid and steady PD presence at schools but no MDA like nit-wittery. My take is the people who get it on the economy and what it takes to raise kids are solidly pro 2A.

  17. avatar dan says:

    MASSIVE Civil disobedience is needed while the ‘courts’ rule…If you wait for a ‘ruler’ to GIVE you something that is YOURS to begin with….then YOU are a slave and deserve nothing…Stand for your creator given rights or perish….imho

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