(Johannes Paulsen contributed to this article)
The Ninth Circuit court of appeals — more generally known as the Ninth Circus — has issued a number of gun rights friendly rulings over the last year. In cases such as Peruta v. San Diego County, Baker v. Kealoha and Richards v. Prieto, the Ninth did serious damage to jurisdictions that require “good cause” to obtain concealed carry permits. But now, when faced with the issue of the city of Sunnyvale’s 10-round magazine capacity limit in Fyock v. City of Sunnyvale, a three-judge panel has ruled that “Sunnyvale’s interests in promoting public safety and reducing violent crime were substantial and important government interests.” The problem is that Sunnyvale’s law, as contracostatimes.com reports, isn’t your typical mag limit . . .
California law since 2000 has banned making, selling, giving or lending magazines that can hold more than 10 rounds, but laws such as Sunnyvale’s go further by making it illegal to possess them in the home. It requires city residents to turn in illegal magazines or risk misdemeanor prosecution.
The ruling is important because,
…other California cities, including Mountain View, San Francisco and Los Angeles, have moved to adopt similar regulations. And given that the 9th Circuit shapes law for nine western states, its Sunnyvale ruling is likely to have a much broader reach if it remains intact.
The Ninth Circuit quoted the Supreme Court’s decision in Heller approvingly: “The Second Amendment right is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'” Further: “longstanding prohibitions on the possession of “dangerous and unusual weapons” have uniformly been recognized as falling outside the scope of the Second Amendment.”
Even though the Heller decision has done much good for the right to keep and bear arms, there are still loopholes, shall we say, in the langauge of the decision. Enough to mean that in areas outside the actual possession of firearms, courts willing to give the benefit of the doubt to government power instead of the rights of the citizenry have arguments to hang their hats on.
The pro-gun rights plaintiffs in the case, including the NRA, now have the option of asking for a en banc review by the full Ninth Circuit or appealing to the Supreme Court.
Chuck Michel, a lawyer for the gun rights groups, pledged to appeal quickly, calling the ruling a “fundamental misapplication” of Supreme Court precedent. He also revealed that organizations plan to file a second legal challenge to the Sunnyvale law within the next week raising new legal arguments.
Those other legal arguments will probably center on the question of whether the Sunnyvale law violates the Second Amendment by limiting firing capacity. A question that would have implications for capacity limits in other jurisdictions. The Sunnyvale ruling didn’t address that question, instead centering whether a lower court erred in refusing to grant a preliminary injunction.
Shal. Not. Be. Infringed.
The Court cannot support the “right” without also supporting the purpose of the right.
All ‘freedoms’ delineated in the Bill of Rights come from GOD, and are freedoms FROM government thereby being guaranteed only by an Armed Citizenry willing to kill their stupid neighbors needing jobs (a/k/a the ‘government’) who have attempted to take away those rights and establish themselves as being in a superior status to their fellow citizens.
Further HOW LONG WILL AMERICA LAST? No one can answer with any certainty
The question is hereby asked, and answer demanded: How long will America last? [10].
This is an unknown, and assertions can be guaranteed by no one. However the existence of
America requires not only the desire by its incorporated societies, to defend it but by THE
VERY MEANS. Therefore, possession and retention of arms (as a right) IS HEREBY
GUARANTEED to outlive even the idea of America. [TERMS, J.M. Thomas R., 2012, pg. 39]
“NO Government can guarantee its own perpetuity,
Aske then, the question again,“How long will America last?” and let the answer fall as mute
silence. Therefore America should not disarm its citizenry [you and I as a pair and as
individuals] up until the point at which it (America) cannot [can no longer] defend itself, and
it collapses, leaving its citizenry [you and I] stranded.
I, for one, will not allow my government to disarm me for the rest of the world “MOLON
LABE.” The U.S. government, for example, has not protected me against people with
automatic weapons, by banning such weapons, any more than their (such persons) lack of
immediate desire (their piqued desire) to do me harm; so that the government is still only be
protecting me after-the-fact. “The more corrupt the state, the more it legislates” – Tacitus.
“Government is not reason; it is not eloquence; it is force. Like fire, it is a dangerous
servant and a fearful master.” – George Washington. http://quotes4all.net/” [TERMS, J.M. Thomas R., 2012, pg. 52]
Sean in Tampa,
And thus our United States Supreme Court lost all legitimacy in their “interpretation”. The Second Amendment does not allow for “reasonable” restrictions: it allows no restrictions — “shall NOT be infringed”.
In order for “reasonable restrictions” to be legal, the word “reasonable” would have to be in the Amendment. It isn’t. For an example we need look no further than the Fourth Amendment … “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The Fourth Amendment allows for reasonable searches and seizures. The Second Amendment has no such wiggle room.
The Heller decision also stated that citizen firearms can be equal to that of law enforcement.
Glocks with standard capacity magazines are arguably the most common LE handgun.
The most common LE rifle is the AR-pattern variety. Most common LE shottie is a pump shotgun.
“Unusual and dangerous” – you keep saying that. I do not think it means what you think it means.
Millions of standard-capacity magazines that hold greater than 10 rounds are in the possession of law-abiding citizens, and pose no danger whatsoever.
That was my thought. They’re using the nuclear bomb exemption to ban the most common magazines. I have no problem with someone getting in big trouble because they’ve got a rental truck full of ammonium nitrate and diesel fuel parked in front of a federal building, but the possession of such a weapon can’t exist without ill intent. This should be acid test to determine if a weapon is ‘unusual and dangerous’. If millions of people already own a weapon or device without any damage to their neighbors it clearly disproves any claim of it being ‘unusual’, and it’s only ‘dangerous’ if criminal intent is added to possession.
Possession of such a weapon without ill-intent is an interesting line of reasoning. I’d like to see it developed further.
It seems to me that possession of a cannon or an RPG ought to fall within the scope of militia purposes for the preservation of a free state; albeit, not the objective of stopping a riot. Now, as to “dangerous and unusual”, you might be onto something.
It would not be either dangerous unusual for a farmer to possess a truck full of ammonium nitrate and a tank of fuel oil. Should a farmer mix the two, that is a weapon of another color. It might be unusual for a non-farmer to possess both a large quantity (more than 50 lbs) of ammonium nitrate and a large quantity of fertilizer even though they were not mixed.
This is worth thinking about for political purposes. We see a red herring argument that the 2A doesn’t give us a right to nuclear arms. What distinguishes a .22 from a .30-06 from a nuclear weapon? Perhaps it is that the former are useful for preservation of a free state. However, a nuclear weapon seems to be dangerous and unusual and not especially necessary to defend the free state. (How to use a nuclear weapon to protect against the cartels or Japanese army from invading us? How to use a nuclear weapon to repeal a standing army firing upon its citizens in the Boston green?) If you find a young fellow in a garage with hundreds of pounds of explosives, pressure cookers and nails; but no tax stamp for a destructive device, well then you can make a dangerous and usual argument. Does it seem as though his possession is with intent to prepare for a defense of a free state or some other lawful purpose? Or, to have a dangerous and unusual weapon without paying the excise tax?
Such a line of reasoning ought to take us as far as we might need to go. E.g., a ski resort could easily justify maintaining artillery for avalanche control. Likewise, a collector or hobbyist for amusement and experiment. Get a stamp and you are good to go. At and below .50, and you are outside the definition of “dangerous and unusual”.
Personally, I don’t like the “dangerous and unusual” prohibition. There is an article that argues that this really meant to prohibit the carrying of a weapon in a dangerous or threatening way. Nevertheless, if we have to live with the Constitutionality of this D&U term, then we might be better off finding a way to interpret it so as to make it politically palatable.
Ten round magazine limits worked out so well at Columbine and Virginia Tech, didn’t they? Because the shooters at those two mass murders only used ten round magazines. Didn’t make a bit of difference. Didn’t slow them down. Didn’t save a single life.
All a magazine limit does is let the antis tell themselves they’re “doing something” and “making a difference”.
You are correct, great points. Also, Nukes, bombs, poison gas, like booby traps are not protected by the 2A because its user cannot necessarily control it’s output of destruction, ie: they cannot discriminate. Booby traps have been deemed illegal for a long time because they cannot discriminate, so, like a booby trap, a weapon capable of that level of destruction like poison gas or a nuke, would not fall under the definition of an “arm”.
Even when it comes to ‘dangerous and unusual’ there really is no need for ‘weapons’ laws in the first place. As noted, destructive devices can be made from common materials. The guy in the rental truck loaded with a diesel/fertilizer bomb is committing conspiracy to commit murder regardless of what tool he plans on using. If someone climbs the clock tower with a couple hunting rifles and a few dozen rounds of ammunition he is committing the same crime. Certain situations lend such a suggestion of ill intent that the burden of proof necessarily shifts to the defense to prove innocence. Where ‘dangerous and unusual’ comes in to play is when the miner can validate why he has 700 sticks of dynamite in the back of his truck. He has a valid reason for an unusual and dangerous device and should have some form of written permission for the sake of avoiding unnecessary harassment by the local PD.
Your points are well taken. Nevertheless, I’m more immediately interested in the political situation with the general public, Congress and the judiciary.
Telling these people that they ought to have a “come to the Constitution moment” is a waste of breath. That’s too large a gap for them to even contemplate leaping.
This audience’s need for some regulatory scheme is overwhelming; such that, your argument doesn’t sell well. I don’t think the burden of proof shifts to the defendant; nor, should it. The prosecution should always hold the burden of proof.
As a child, I sold dynamite, fuse and blasting caps. Didn’t think much of it; just ordinary stock in trade. I knew that there was nothing dangerous about dynamite; it was the caps that were dangerous. To this day, I don’t know of anyone hurt by dynamite. Only one customer was hurt by a cap and it took 40 years between when he bought the explosives to have the accident.
As a practical matter, the only thing I think we can do to satisfy this audience is to admit to a scheme of regulation for some stuff; and I’m thinking that the poster’s reasoning about “dangerous and unusual weapons” is worth looking into.
Under present law to buy and possess dynamite you have to have an ATF license which just about any law-abiding person could get. (I’ll prescind from the details). Want to build a pressure cooker bomb with black powder and nails? Go ahead, pay your $200 and get a stamp. Neither of these is outlawed under the “dangerous and unusual weapons” principle (even if it’s construed as an outright ban).
There is nothing “dangerous and unusual” about a handgun, shotgun or rifle. Nor a magazine nor a pistol grip nor a “thing that goes up”. To try to assert that “a thing that goes up” or a pistol grip or standard-capacity magazine is “dangerous and unusual” stretches the meaning of that term beyond credulity.
Would a sward or dagger have been construed to be “dangerous and unusual” when that term first crept into the Anglo-Saxon understanding of the right to arms? If not, then one must make a case for each and every modern arm.
A stun gun was once unusual; but it is hard to justify a prohibition because it is “dangerous”. A handgun is not unusual; nor, frankly, is it dangerous when compared to other usual weapons such as shotguns and rifles.
The Anti’s won’t go away just because we hold up the text of the 2A to them and ware a neckless of garlic around our necks. We need to frame arguments that widen the meaning of “the right” (of the people to KBA) beyond a nullity and into the scope of what is indisputably “usual”. To this end, we might be able to use “dangerous and unusual” to our benefit.
Well, just because I said there’s no need for certain laws does not mean that I don’t think there will be.
In the real world we have to deal with popular opinion and political ambitions more than they have to deal with the Constitution.
Just to nuance my point about the burden of proof, if you’re caught with a couple of pipe bombs and your excuse is you wanted to ‘blow some shit up’ in your own back 40 then the onus should be on the prosecution to prove you intended to harm someone or destroy someone else’s property with those pipe bombs. But what kind of reason are you going to give for driving a rental truck with a 10,000 pound fertilizer bomb? I can not think of a reason that any reasonable person would accept other than to commit murder. The onus is now on you to convince the jury otherwise. Kind of like if you’re caught with a dead body and the victim’s blood all over you. It doesn’t mean you committed murder, but you’re going to have to prove it (despite the presumption of innocence). Only in this case there’s no dead bodies yet.
The key is that the device must be BOTH unusual and dangerous. If dangerous alone were enough we’d have to regulate the sale and ownership of baseball bats. If unusual were enough than every out of the ordinary object would have to be regulated. Where regulation comes in handy is when you want an unusual and dangerous device, say a pressure cooker bomb, and don’t want any undo harassment, then you can go to the government and get a permission slip, since they will determine that your not a threat to others. Then you can say, ‘I know this looks bad but I’ve got my permission slip right here.’
Yes, I see what you are saying and I think we are on the same page. Might open the way to a practical approach to the destructive device law where – as I understand it – a cannon shell is itself a destructive device. So, if you want to keep a cannon for fun or for avalanche control you would have to register every shell.
It might make a lot more sense to say that you can have a dozen tax stamps which entitle you to an inventory of a dozen shells. Shoot a half-dozen shells and you can make/buy another half dozen.
Well after the Iraq War I can certainly understand why an artillery shell would be considered a ‘destructive device’.
The sad thing is that if you are going to concede ‘reasonable limitations’ to the 2nd amendment, then you open a whole new can of worms for the enemies of freedom. The anti-2nd amendment crowd are NOT reasonable. Identifying how things should be is easy. If you can figure out how to reason with the unreasonable you deserve the Nobel Peace Prize.
You have to wonder what is so sacrosanct about a 10 round magazine? If the goal is to limit a spree-killer’s initial carnage to just 10 dead people at a time then, from a moral standpoint, a city’s gun-control motivation ought to extend to saving even more lives by mandating 5 round magazines. Or, for that matter, 3 round magazines. (Surely people don’t need more than 3 rounds to kill a deer.) The problem with mandating a particular magazine limit is that the decision is immediately arbitrary and capricious, its usefulness as an ideological symbol far outweighing its supposed practical advantages. This raises the question of whether the 2nd amendment’s stipulated rights can be deformed or abridged for a primary intent to support somebody’s exercise in political symbolism.
While they’re at it they could impose a 3mph speed limit on all city streets. That would save more lives than magazine limits.
Baby steps. First 10 rd limit, then 5, then 1, then any firearm.
It’s like when they tried to force us to use the Metric system.
Seriously though, I was watching a home improvement show and the husband was from Australia. The host gave him a standard measurement to rip a board and the Aussie converted it to centimeters saying “we don’t use the King’s foot”.
That’s awesome! I never heard that before and if they had told me that in Elementary School, I would have been more receptive to the idea.
Exactly, reminds me of Gov Christie’s comments when he vetoed a 10rd mag limit in NJ.
Responding to the unproven argument that a 10-round limit might save an 11th victim, Gov. Christie said, “If you take the logical conclusion of their argument, you go to zero, because every life is valuable. And so, why 10? Why not six? Why not two? Why not one? Why not zero? Why not just ban guns completely?”
I won’t say that Christie gets too much right, but he did hit the nail on the head with this one.
And the real problem is you’re not putting a limit on the criminal, this is a limit on the law abiding. How do you know how many rounds a specific individual in a specific situation will need to defend their life or their loved ones life?
How do you know it will be 10 and not 20 or 30?
The problem is one of simple boolean logic.
“Unusual AND dangerous” is not the same thing as one thing that is “unusual” and another thing that is “dangerous”. That would be “unusual OR dangerous”. Because of the AND in it, that clause requires the item under scrutiny to be BOTH “unusual” and “dangerous” at the same time. A 30-round mag for an AR-15 is not unusual in the slightest, and I find it hard to believe that one 30-round magazine is more inherently dangerous than three 10-round magazines. Because you don’t have to take approximately a second and a half to change mags twice? That’s simply not enough to make the 30 round mag, in and of itself, inherently “dangerous”.
It doesn’t increase “firepower”. Each round does exactly the same potential damage regardless of whether it comes from a 30 round magazine or a 10 round magazine. If you have three 10 round magazines, and load them all, you still have to have the same amount of ammunition as if you were loading a single 30 round magazine, so where’s the increase in firepower? Because you don’t have to pause every 10 rounds? That’s silly.
The various definitions of the term “affray” come into question. What is the significance of the “dangerous and/or unusual” requirement? Is it a restriction upon the weapons, or a restriction upon how they are USED?
This paper is to point; a PDF of the entire paper may be downloaded here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1859395
The abstract of the paper is: In dicta, the Supreme Court in Heller cited the historical ban on “Dangerous and Unusual Weapons” to support a common use test on statutes that ban certain types of weapons considered to be, “dangerous and unusual.” This paper examines the historical use and definition of the phrase, “Dangerous and Unusual Weapons,” and concludes that it refers not to a class of weapons, but to a class of behavior.
One would think that if they banned something outright, something that was legal before, they would required to pay compensation for those that own them.
Now THAT’S comedy!!!
Except that it falls under the “taking” provision of the 5th amendment
“nor shall private property be taken for public use, without just compensation.”
Taken for public use is a lot different than banned my friend. We aren’t talking about eminent domain rights here, this is just .gov saying “no soup for you!”
With the amount of proposed new gunlaws for this year for California it drives me crazy. With the amount of proposed laws one would think guns are the only issue California needs to address. It’s a bit disheartening to always take one step further only to end up taking two steps back. They pass more laws making it the never-ending story of unconstitutional laws being passed. Also makes me mad is that my tax money goes to help fund the defense of these bogus laws.
I tried fighting the fight in CA and did so for many years, but I gave up last summer and moved to AZ and have not looked back. I think that state is a lost cause with the price of real estate, high taxes and unconstitutional gun laws. CA, NY, NJ, and CT are where we should round up all of the freedom hating citizens so the rest of the country can remain free.
And then you’ll wonder why we can’t pass a national reciprocity law…
Doesn’t work that way. In most cases, the same folks who are working to pass anti-gun laws are also attacking economic freedom on multiple fronts, and then when they’ve trashed their home economy, the move to another state with a more vibrant economy, taking their general anti-freedom agenda with them.
That sound a lot like the Aliens in Independence Day.
^ Probably where they got the idea!
Sounds like Bridgeport, CT.
next up they’re going to ban any no-fixed magazines. Ugh.
Isn’t Sunnyvale where the Trailer Park Boys live??
Don’t think the trailer park boys could afford to live there.
I always thought it was funny how they’d get out of jail and rob a liquor store on the way home. It must be REALLY easy to get a handgun in Canada.
It is if you aren’t a law abiding citizen with a license… Just go find some yoots inner city. Five seveN s are quite popular for the crimelord on the go.
Now if you are one of those filthy gun owners, expect having to wait 3 days to one month for the transfer/registration (I hear mythical places like Alberta only have to wait 3 hours) Then get .Gov permission to take it home (in the trunk, in a locked case, and with a trigger lock; wouldn’t want that evil handgun/AR to influence you into doing a drive by!) Then be a member of a registered club and get them to ask the government permission to take it STRAIGHT from your home STRAIGHT to your range. If it breaks? Too damn bad, ask permission to take it to a smith if your range doesn’t have one.
Oh and don’t forget to add the 1 to 6 months where they call everyone you’ve ever looked at (including Ex’s) to get a licence for the first time.
Honest estimate of time of deciding you like shooting then wanting to buy a handgun/AR, then actually taking possession? Roughly 1 year.
And they still want more. You have been warned America.
Yea, I thought it was something like that. The other thing I find funny is how they get busted with firearms at the end of every season and at the start of the next they’re getting out of jail again. I take it the penalties for violating Canada’s gun laws are pretty mild then?
Don’t answer that.
Luckily there are some cool guns that are Unrestricted – the Tavor and ChiCom M-14 clones come to mind. That does not make up for all that horrible BS, but there are some ways to have fun with a little less paperwork.
Under Canadian law there is no way to “bear” a handgun for self-defense, even in your own home, so you’re better off with a shotty for that purpose.
Actually we do have carry permits for handguns (Authorization to Carry). However, there are only about 1000 ATC iii ie unrestricted concealed or open carry for protection of life in the entire country. Guaranteed they are all issued to “friends of the party”. There are a few other classes of permit, but they are only for valuables transport (must use company firearm, wear a uniform and only during work) and then trappers/Surveyors/prospectors who work in the far wilderness for protection from predators where a rifle would “be unsuitable and an unacceptable hindrance to tasks” and then with a trappers licence, work vouch etc.
However you can technically* carry a rifle anywhere you can legally discharge it.
*with “good” reason. Usually for “predator” control is the stated reason (note not including the human variety). Also; apparently Newfoundland says carrying a rifle outside of hunting season is poaching, no ifs ands or buts about it.
Sunnyvale is the heart of silicon valley. It’s probably a felony to bring a trailer within a mile of city limits.
If magazine capacity limits become prevalent, there will be two consequences. One will be more compact guns since fewer rounds require less storage space. The other will be more powerful cartridges to make the most out of the number you can carry. 10 mm +P subcompacts anyone?
More compact guns~ more powerful ammo…….
My wrist hurts already…
Before the bang……
Personally I don’t feel the least bit under-armed with 6 rounds of .357 magnum, but if I couldn’t have more than 10 rounds there wouldn’t be much use for my Beretta 92fs.
Better go for revolvers, then, as the microstamping requirement will be shutting down the supply of new (legally sold) semi-auto pistols to CA.
Even revolvers are being squeezed out in Kalifornia. My 6″ GP100 is CA legal but my Wiley Clapp model is not.
Magazine limits are incredibly dumb. Changing mags is a hindrance to someone who is panicking but not to someone who is calm. In a mass shooting scenario the person panicking is the victim fighting for their life. The calm person is the shooter who has already accepted they will not walk out of there alive or the extremely unlikely to be ther Navy Seal.
I can understand the thinking behind a limit on the number of rounds carried (flawed as it is) but not on a mag limit. Still having to shoot after 10 rounds is not going to help calm nerves and give a calm reload. It just gives time for the shooter to aim better.Their slight pause to swap mags isn’t giving anyone time to hide or escape.
There’s a video on YouTube with a sheriff demonstrating all the different limits (ie standard cap, 10 cap, revolvers etc, taking aimed shots and reloading where necessary while using a shot counter. The difference in time? Fractions of a second/single seconds I believe it was. The conclusion was that it made pretty much no difference in time it took to aim, shoot and reload 17 shots whether it was one mag, 2 mags (10s) or even 4 mags (5’s).
So wholesale confiscation, then… Lovely.
Next up will be Turn In Day instead of Buy Back day. Cheaper and more to the point.
How does this change criminal behavior?
Exactly! The point is that it doesn’t, of course, as you imply. But the real point is to blame the guns, magazines, etc. so the criminals can go free and pretend to be victims while the liberals cry for them instead of the real victims. Blaming guns, magazines, etc. shifts the focus from the real issue of too much leniency and plea bargained deals in our legal system.
It doesn’t. The criminals continue to occupy high-level government and court positions.
Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, Section 10. This is one of the relatively few restrictions that the United States Constitution made to both the power of the federal and state governments before the Fourteenth Amendment.
How is it that this is being ignored?
Because the new law is about continuing possession. The law says that you can’t continue to possess them. If the law charged you with the crime of possessing them before the ban took effect, THEN it would be ex post facto. They can make anything they want illegal, they just cant retroactively charge you with a crime committed before it was illegal.
As I have stated before, the mockery that we call our courts are reduced to a lottery: which way the court decides depends on nothing more than the political leanings of the particular judge or panel of judges you get.
Why do we owe any respect to such a system?
But now, when faced with the issue of the city of Sunnyvale’s 10-round magazine capacity limit in Fyock v. City of Sunnyvale, a three-judge panel has ruled that “Sunnyvale’s interests in promoting public safety and reducing violent crime were substantial and important government interests.”
Exactly what substantial and important government interest is being served? It sounds good but why aren’t they being forced to “prove” the interest? As we all know, the only result of this thinking is that the good guy gets less bullets. Certainly asking, should we also limit the number of rounds in a cops gun and why not would get the correct result.
I would like to see some actual data on how this magazine cap makes Sunnyvale safer. I doubt any data exists. Just more “feel good, I did something” bs.
More arbitrary nonsense. 10rds. As an example – the swiss Vetterli from 1868 held 12 rounds in a tube magazine.
With Sunnyvale being right on top of the Hell mouth, you’re gonna need those mags. Buffy can’t save everyone.
The time for non-compliance and resistance to infringement has come. Stop looking to courts to affirm your rights.
I dont know why attorneys when they challenge such laws also try to raise questions about law enforcement exemptions. Given the mercurial tendencies of the 9th Circuit, it would be interesting if the courts struck down the carve outs for law enforcement. You would see the liberals suddenly become very pro police.
1) So the government can take anything it wants without paying or it? Was this not brought up because the opponents of the law wanted it to be a clear ruling on mags instead of property?
2) So what is the ‘non dangerous’ amount of bullets that the government cannot go under? 10? 6? 2?
Another amendment has been violated in this court ruling, the Fifth Amendment prohibition on the taking of property without compensation. This is very dangerous, not just for gun rights but for property rights in general.
I despise judges who despise the constitution. They sit behind a shield of metal detectors and sheriffs carrying 15 round and 17 round mags and spew their arrogance from “on high.” May justice find them in this life or the next. They can find me in contempt for not enforcing their law.
Good for you Accur81. How do we get the rest of the boys in blue to follow suit?
As for, “They can find me in contempt for not enforcing their law.” Pffft. Don’t worry about it. Obummer claims executive privelege. Attorney Generals claim prosecutorial discretion. I am sure there is plenty of leeway for you to claim officer discretion.
California has reached a point where law abiding citizens are going to begin ignoring these unjust and unconstitutional laws. What if you are a legislator and pass these ridiculous and pointless acts of civilian disarmament and basically, nobody cares? Nobody obeys, LEOs don’t care or have time to enforce them except when they are piled on and wobblers on arrests for other infractions. Californians already have been ignoring many gun laws, if you take a look at how much Tannerite, how many Slide Fire Stocks, shouldered SIG braces and post 2000 standard capacity magazines are in use all over the state on a daily basis. We are very close to the point of most gun owners just ignoring the laws and doing what they have always done.
If I lived in Sunnyvale or Los Angeles, I wouldn’t turn in any standard capacity magazines.
I have to stifle a laugh when a recruiter calls about a CA job. I tell them flat out that I can’t afford to move their. I’d have to more than double my salary just to break even and all my guns are illegal in the a55hat of a state.
Until SCOTUS knocks out mag limits, the 9th will do it’s liberal best to disarm. In the cases where it apparently rule for 2A, it’s hand was forced by an existing SCOTUS precedent.
No law regarding mag limits or bullet marking or trigger pull strength have any impact on ‘gun violence’ or public safety. And the judge know this. Criminals do not care what the law says. So judges know that these laws only restrict the law abiding. And they don’t care.
And last I checked the phrase “compelling government interest” is nowhere in the constitution as an exception to any part of the constitution.
Yes the constitution is not a suicide pact.
I’ve heard some people, otherwise educated, say that the constitution doesn’t even apply to state government absent an ‘invented’ incorporation doctrine. But to believe this, one would have to believe that it is then allowable for a state to set up a communist dictatorship within its borders, go house to house and kill everyone who refuses to be disarmed.California is awful close to setting up just such a government. After all, it is driving out the middle class with policies that tax the hell out of them, makes housing unaffordable for anyone earning less than $250K, and practically outlawing self defense. Criminals and the corrupt love California.
I do, actually, have issues with the incorporation doctrine. But it is clear that if it is a valid reading of the 14th amendment, then the entirety of the bill of rights would be included. Those who reject its application only with the 2nd amendment, would also have to stop whining about separation of Church and State. After all, pre-incorporation states could have established religions (as Mass. did until the 1830’s)
As a side note, I think the 2nd amendment, and a few other provisions, would still be applicable to the states without the 14th amendment (selective) “incorporation doctrine.” But that is another subject.
The implications for the Establishment clause are more severe than merely the couple of original 13 States. There is also a doctrine that States are members of the union on an equal basis. There is no notion of a senior vs. junior State; nor are there special deals for each State. So, if Guam wanted to be admitted as a State but wanted to be able to issue Letters of Marque and Reprisal, that would obviously not fly. If there is a right to polygamy, then Utah could not wave that right.
The problem here is that if the doctrine of Incorporation is rolled-back with respect to the 1A, than any State could restrict freedom of speech, press or assembly; and, it could Establish a State religion. That might be quite an appealing option if some sect had a concentration of adherence in any State. So, merely by way of illustration, what if Minnesotans adopted Lutheranism as its State Established religion? What religion might Michigan establish?
There are only a couple of remaining rights that have yet to be incorporated; grand jury is the only one I recall. I don’t see a roll-back of the Incorporation doctrine. There are too many oxen that would be gored. Now that we have McDonald, I think the remaining debate is to find the metes and bounds of “the right” KBA. E.g., does it mandate Shall-Issue? Does it mandate Constitutional-Carry? Does it tolerate magazine capacity limits? Does it tolerate bans on “things that go up”?
A definition of “…Arms.” would be helpful…
Arms are:
“Their swords and every other terrible implement of the soldier, are the birthright of an American”
The full quote:
“Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” — Tench Coxe The Pennsylvania Gazette, Feb. 20, 1788″
every time the Federal judiciary violates the Constitution in the interest of public safety, the simmering anger gets a little brighter.
This was not only expected, the overblown reaction against it on blogs was too.
Now it goes back to the district court for actual trial. All that happened was the District court refused a preliminary injunction, and CA9 upheld the refusal of a prelimnary injunction. Now the substantive issue will go to trial in the district.
Yes a prelimnary injunction, such as we got on the ban on mail order ammo, would have been nice. But the courts haven’t ruled on the magazine law yet, just the PI.
Argh. These comment boxes timing out, wiping out drafts are very frustrating here at TTAG.
Here is a link to lots more insight and commentary at Calguns.
http://www.calguns.net/calgunforum/showpost.php?p=15917623&postcount=17
Imho, if you consider the circular reasoning, vague justification for intermediate scrutiny for “public safety” as “self-evident”, on testimony of police chiefs and their fakey ‘Associations’ (made up of those from major urban cities with the ultra liberal politicians who appoint them) and same semi-hysterical allegations on faux studies, offered by amici such as the San Fran based Soros funded lawyers for gun confiscation,
As the rationale for public safety threats against schools, and law enforcement that these these laws target, mixing the law-abiding in with criminals and the mentally ill, without noticing that icreasing laws that only the law abiding obey… against schools and police officers….and
Consider the mental gymnastics required to sneak in the odd little footnote describing the plaintiffs normal, time saving, expeditious decision on a stay on merits at the PMI to darkly misconstrue it as a weakness or ? In another part of the argument, that the the panel piously excerpted itself from considering, …
Well, to quote a famous blogger, and constitutional law professr of some published repute….
“Its Potemkin Villages al the way down…”.
This makes me think the 9th is side-stepping Peruta, for the technical faults, and lifted the stay on Richards, to potentially apply the same bunkum in en banc there, and self righteously cite itself, hear, along the same lines as now Chief Judge Thomas dissent, on Peruta.
At least it’s a court where the judges appear to be trying to, at least in their mind, be reasonable as opposed to being blatantly anti-2nd Amendment (because of their slapping down jurisdictions regarding CCW restrictions). But they got this one wrong still, IMO. A major mistake of Heller I think is when it uses the phrase “dangerous and unusual” weapons. What exactly constitutes a “dangerous and unusual weapon?” These antis argue that the weapons labeled as “assault weapons” and weapons that have standard capacity magazines (“high”-capacity magazines) according to them are “dangerous and unusual” and thus can be outlawed.
Heller should have provided some explicit descriptions of what “dangerous” means, such as explosives or things like that, not firearms (as ALL firearms are “dangerous” in the sense of being weapons). And they should have left the term “unusual” out entirely, as SO WHAT if a weapon is unusual? One could nitpick and say, “Well the Court said ‘dangerous AND unusual,’ not ‘dangerous OR unusual,'” but still.
Bear in mind that all but the bottom part; the ruling, is mere dicta. Dicta doesn’t stand in the way of SCOTUS reaching a different conclusion in some later decision. I’m beginning to wonder if Scalia wrote some of the dicta in such a way as to make Kennedy comfortable to make for the 5’th vote; the majority.
The lower courts ought to be reading the dicta and be guided by it. Most of them are ignoring the dicta in Heller; they simply read it out of the decision. That could be a costly mistake.
What if Kennedy concludes that the lower courts aren’t taking SCOTUS guidance seriously? Maybe Kennedy is hoping that the lower courts would flesh-out the meaning of “the right” to KBA within the signposts they have been given in Heller and McDonald. If the lower courts refuse to do so and try to flaunt SCOTUS, Kennedy might get fed-up with them and rein-in their ability in the ruling for a subsequent case.
I seem to remember something in the Heller decision about not being able to ban weapons in common use. Magazines with capacities greater than 10 rounds are in common use all over the country. Their next appeal should bring this up, especially as I highly doubt that Sunnyvale PD is using 10 round magazines.
So what if “Funnyvale” going to do? Violate the 4th, 5th and 6th amendments to search and confiscate said normal capacity magazines?
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