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Kris Brown, president of the gun-control nonprofit Brady, said the U.S. Supreme Court is unlikely to back Benitez’s rulings if either case reaches the high court.

“I cannot imagine the court rubber-stamping those opinions — they’re lacking in logic,” Brown said. Pointing to Benitez’s ruling in the assault-weapons ban case, in which the judge compared AR-15s to “Swiss Army knives,” Brown said such thinking is “crazy town.”

Eric Ruben, an assistant professor at SMU Dedman School of Law in Dallas and a fellow at the Brennan Center for Justice at NYU Law, said the ruling [overturning the ban on high capcity] magazines is particularly vulnerable to reversal because it didn’t properly spell out why the restriction is a “substantial burden” on the Second Amendment.

“It’s the first time a federal district court concluded that large-capacity magazine bans are unconstitutional,” Ruben said. “And six federal appeals courts have upheld the constitutionality of these restrictions.”

Erik Jaffee, a lawyer for Firearms Policy Coalition, one of the plaintiffs, said California’s lawmakers are the ones who lack logic. He said they pass illegal gun-control laws to score political points instead of focusing on preventing crime.

And plaintiffs’ attorney George M. Lee, who is involved in suits challenging both state laws, said law-abiding citizens shouldn’t be burdened by an arbitrary limit on bullets.

“There’s no evidence that bans on large-capacity magazines do anything to reduce crime or reduce the number of fatalities that are associated with a mass killing,” Lee said.

— Erik Larson in California Gun Laws Reviled by NRA Face Pivotal Test at Hearing


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  1. Duncan is a CRPA case. NOT an FPC case. FPC is NOT a plaintiff in Duncan. This win (so far) was CRPA all the way. As was the win in the Rhode case (ammo purchase background checks), and the Rupp case (Cal black rifle ban challenge). All of these CRPA cases are in the Ninth Circuit, and all of the 2A cases in the 9th Circuit are stayed behind Duncan – including Miller as of yesterday.

  2. Let us refrain from the term “large capacity’ and ‘high capacity magazines” &etc. and call them what they really are – “standard capacity” magazines.

    • I would like to get away from those terms myself. AR rifles can handle anything from one round on up. There is no standard for this gun. The fact that most people are buying 30 rounders and not 100 round drums is superficially recognized. The argument is the same if we’re talking about 20 round magazines. For magazine capacity to be at issue at all is in itself an issue.

      If we want to talk about ‘terms’ then let’s talk about the idea that the are banning assault rifles and at the same time preventing people from having AR15’s. As if they are the same thing. As if you can’t assault someone with a rock on the ground as your weapon of choice.

  3. Politicians are like the devil, they’ll change the contract terms to benefit themselves over what’s originally said. They have created new terms to restrict what was already there. A Cat isn’t a cat, it’s a Tiger. a plane a jet, and so on.

    • More for than only CA. The Ninth Circuit’s decision will affect a total of nine Western States. The Ninth already “ruled” recently that the 2A does not mean what it says, and we don’t have a right to carry/bear arms outside our homes.

      The Ninth is based in San Francisco, so this en banc hearing is certainly only to “correct” their own 2018 ruling in favor of Benitez.

      We only need 6 of the 11 judges to support Benitez’ ruling.

      • It will not effect any other state, not directly anyway, since the case involves a California Penal Code provision not present in most other states in the Circuit. Indirectly, assuming that the law is upheld, it may encourage other states to enact such restrictions.

    • “California Will Argue to Reinstate Its Ban on ‘High Capacity’ Magazines Before the 9th Circuit Today”

      No, not “California”, as in “Californians”, but the tyrranical government of California, who always knows what is better for the people living there than the residents themselves. As for the government action: Well, of course they would…

  4. The decisions upholding restrictions all rely on the absurd premise that the extra rounds have absolutely no value to a responsible gun owner, but greatly facilitate a mass shooter. The 11th and subsequent rounds in a magazine have a very narrow range of utility, apparently.

    • “the absurd premise that the extra rounds have absolutely no value”

      that’s not their premise. their premises are that 1) only government should have guns, 2) only they should be government, and 3) the rest of us have no standing to oppose anything they decree, and thus are to be deprived of any tools to oppose them. there is no shared reasoning behind banning magazines, 15’s, et cetera, they simply are steps towards realizing that goal.

    • The State did make exactly such an argument–that they may be banned since so few SD shootings involve more than ten rounds and the public will not therefore be unduly infringed, while at the same time arguing that the state should ban them because of the admittedly relatively rare occasions they are used in mass shootings. One of the judges called them out on this hypocrisy. The State’s argument proved too much–the restriction will have almost no effect on gun crime in the state. Not that this observation will have any effect on the chief judge Sidney Thomas who apparently believes that anything more than one round is too many, and he’d ban single shots if he cold get away with it.

    • The ink was dry on the opinion reversing Benitez and (ignored by Brady) the three member panel that affirmed his decision 2-1 before the case was/is called for argument. Hell, the last time a case was argued in front of an en banc panel, even judges appointed by Republicans agreed that the 2A does not protect a right to bear arms outside the home. Consequently, with an anti-gun bias infecting the circuit and the apparent rise in “mass shootings,” there really is no chance that the original decision will stand.

      The only question that may be left unresolved is whether the state government can ban grandfathered (pre-ban) mags without paying compensation. My money on that question is a solid “Yes”. They will be declared nuisances and subject to confiscation and destruction wherever and whenever found in California.

      • Case has been argued. 7 of the judges were appointed by Clinton & Obama. 4 were appointed by Bush & Trump.

      • {Pre-Cali Ban magazines}

        “They will be declared nuisances and subject to confiscation and destruction wherever and whenever found in California.”

        You missed one –

        They will be declared nuisances and subject to *prosecution*, confiscation, and destruction wherever and whenever found in California…

      • Remember, Mark, this entire lawsuit was filed because of AB63 (2016), which reversed the grandfather provision established many years ago and criminalized mere possession without compensation.

        There are now – as a result of the famous 2019 “Freedom Week” – considerably more standard mags in CA than ever before, making them even more arguably “in common use” and therefore subject to Heller.

        • Yes, that is what I said. The case is about whether the state can ban pre-ban (grandfathered) 10+ mags. The statute doesn’t address compensation, and that was a subsidiary issue as well–whether a post-hoc ban of previously legal magazines constitutes a “taking”.

  5. Definitely but if for some reason it stands it’s off to SCOTUS.
    If and when they hear the case I’m as confident as I am with the 9th Circuit.
    Two serious challenges to uphold Benitez’s ruling.

  6. Assualt Weapons Ban.
    We’re still fighting Bill Clinton and his assault weapon sht.
    Every weapon is an or can be an assault weapon. It’s time potg quit playing the assault weapon game.
    The right to keep and bear arms, doesn’t say anything about government permission or what arms. They’re all assault weapons and as a citizen of The United States of America we can have them.

  7. I am really confused about the courts using safety or rampant mass murderers as any criteria in their decisions. Only existing law should be the criteria otherwise they are activists and lessen the court validity.

    If the law does not meet constitutional merits it is not constirutional. All feel good or bad is a distraction, period.

    • Case law recognizes that the government has a “compelling interest” in public safety, and liberal courts use this in a “balancing” analysis as weighed against the private interest guaranteed by the particular amendment. Or to put it another way, in non 2A cases, “rights guaranteed by the constitution are not unlimited.” You see this often in First Amendment cases where, for example, speech inciting riot or a conspiracy to commit crimes are not protected speech and may be prosecuted. And this doctrine has crept into 2A cases, most notably in Heller, where Scalia stated in the majority opinion that the right is not unlimited. That little tidbit has been used to validate severe limitations on the exercise of the right to keep and bear arms.

      • Did you say “balancing”? Hmmm. If a bulldozer can be “balanced” against the landscape it is working to change, then yeah, the courts “balance” government’s wishes with citizen’s rights.

      • And that balancing is where the banned items dramatically increase the lethality, thus there’s a public interest in restricting them, yet somehow also provide no benefit at all in defensive use, so restricting them doesn’t burden the rights of law-abiding users.🙄

        • “yet somehow also provide no benefit at all in defensive use”

          the fbi says that the average number of shots fired in any kind of encounter involving firearms is 2.7 (this includes those police encounters where 67 shots are fired). how often does more than one attacker play a role in any self-defense? how often will a 10-cap mag prove insufficient? how often will a 30-cap mag play a role in changing the outcome?

        • Only takes one time, if it’s the time you need a larger magazine.

          IIRC, Judge Benitez cited 3 cases of home defense running up against CA’s 10-rd. limit in his decision to overturn it.

        • “Only takes one time, if it’s the time you need a larger magazine”

          rarely, if at all, and that goes both ways – lots and lots of examples of (say) gang bangers emptying mags in a neighborhood just for fun and missing each other but hitting nearby kids. would you give weight to the theoretical while dismissing the real world cases?

          “IIRC, Judge Benitez cited 3 cases of home defense running up against CA’s 10-rd. limit in his decision to overturn it”

          now that I would like to see. if you can list the source or post the link please do.

  8. “If the law does not meet constitutional merits it is not constirutional”

    for the ones behind all this, they themselves are the constitution.

  9. They are using “substantial burden” on the Second Amendment as a guide.

    However, SHALL NOT BE INFRINGED, puts a no burden limitation test on them.

      • Service in the Militia is not a requirement to keep and bear arms. Nor was it a requirement before. So it cannot be a burden to the right to keep and bear arms.

        In the abstract the Militia Laws could present a burden to those who did not want to participate in training or to serve the community in times of need. Those who could pay another or to pay a bribe to public officials did not feel the burden.

        The Militia is the duty of all able bodied citizens, the burden of protecting freedom has its responsibilities. Being a citizen who enjoys those freedoms owes it to the next generation.

        I think the proper question that should be asked is if freedom requires too much of a burden to maintain?

        • “Service in the Militia is not a requirement to keep and bear arms.”

          but this was the context of the 2nd. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” note that bearing arms is presumed to take place in service in a militia, …

          “Nor was it a requirement before”

          … which miiitia, in accordance with the greek understanding of the polis so popular at the time, is simply presumed. every (white) male between the ages of 16 and 60 was automatically assumed to be in and participating (“well regulated” meaning well drilled and practiced) in a militia and was thus presumed to have arms to serve in the militia …

          “The Militia is the duty of all able bodied citizens, the burden of protecting freedom has its responsibilities”

          … to defend freedom by defending their polis as a militia. the 2nd simply does not address individual self-defense as such.

  10. All kinds of word play.
    Find me one part in the 2A that defines what weapons we are allowed to be armed with and I’ll shave my fur and cut off my tail.
    Limitations are infringements, Shall Not Be Infringed.

    • the 2nd guarantees the local militias’ weapons are not to be restricted or confiscated. individuals are presumed to be participating in a well-regulated militia. individuals functioning independently outside of any well-regulated militia simply are not addressed. most modern rightists proclaim themselves to be loner individualists and thus outside of any militia – the 2nd does not address them.

    • “Find me one part in the 2A that defines what weapons we are allowed to be armed with”

      the 2nd doesn’t. your militia does.

  11. What’s the difference between an high cap mag and a Swiss army knife?
    You can’t bleed out an enemy with a corkscrew in the jugular using a high cap mag.


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