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Just a Man
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I thought we had a thread going about this lawsuit, but I could not find it. News from Firearms Policy Coalition



Firearms Policy Coalition

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In light of last week's Bruen decision, the Ninth Circuit just vacated and remanded a lawsuit we're watching that challenges California's "assault weapon" ban. Judge Bumatay dissents, saying that the 3-judge panel should just hear the case:

Judge Bumatay: "For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it."




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5:04 PM · Jun 28, 2022·TweetDeck

The District Court Docket for this case
 

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You mentioned it mixed in with Duncan v. Bonta, see page 2, but it never had its own thread. Thank you for starting one.

I thought the purpose of the stay was to await the outcome of Duncan v. Bonta? I guess the NYS Rifle and Pistol v. Bruen was enough of a clue that they needed to look at this again.
 

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Lots of stays . . . from Everytown:

  • Monday’s motions panel ruling ensures that the public won’t be put at needless risk while the state of California appeals the extreme outlier decision from earlier this month.
  • A unanimous order from judges appointed by both Democratic and Republican presidents, this is a reminder that we’ve seen only the opening chapter of this legal challenge.
  • The judges said that the stay should remain in place pending resolution of Rupp v. Bonta, in which another district court judge upheld the same California law and the plaintiffs appealed. Rupp itself is stayed pending Duncan v. Bonta, a challenge to California’s restrictions on large-capacity magazines. The Ninth Circuit held en banc oral arguments today in Duncan.

LOL
 

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So, a plain English history of the case, if that helps anybody here. Assault weapons ban lawsuit. District Court granted the .gov's motion for summary judgment in 2019. Two step inquiry and intermediate scrutiny. Plaintiffs had asked the court to use a history based review as suggested by Brett Kavanaugh in his dissent to the Heller case at the DC Court of Appeals (which is the standard now, law of the land, according to the US Supreme Court, as of Thursday.
  1. Heller, however, does plainly provide that the M-16—and weapons “like” it—can
  2. 23 be banned as dangerous and unusual weapons. Accordingly, the proper question is: are the
  3. 24 semiautomatic rifles at issue here “like” the military’s M-16, a historically banned
  4. 25 dangerous and unusual weapon? If so, the semiautomatic rifles are similarly outside the
  5. 26 scope of the Second Amendment. This test makes practical sense. It is undisputed that the
  6. 27 M-16 is outside the scope of the Second Amendment—thus, if a weapon is essentially the
    1. same as the M-16, it is not protected by the Second Amendment merely because gun
    2. 2 manufacturers have given it a different model number and dubbed it a “civilian rifle.” Gun
    3. 3 manufacturers cannot determine the scope of Second Amendment protection; they cannot,
    4. 4 for example, develop a grenade launcher, dub it a “civilian” model, and thereby bring it
    5. 5 within the scope of the Second Amendment.
      1. As to whether the semiautomatic rifles at issue are “like” the M-16, the Court
      2. 7 agrees with Kolbe’s conclusion that “AR-15-type rifles are ‘like’ M16 rifles under any
      3. 8 standard definition of that term.” 849 F.3d at 136 (citing Webster’s New International
      4. 9 Dictionary 1431 (2d ed. 1948) (defining “like” as “[h]aving the same, or nearly the same,
      5. 10 appearance, qualities, or characteristics; similar”)). Indeed, the Court concludes that
      6. 11 semiautomatic rifles are virtually indistinguishable from M-16s.
      7. 12 The difference between the M-16 and semiautomatic rifles like the AR-15 is that
      8. 13 the M-16 allows the shooter to fire in either automatic or semiautomatic mode, while
      9. 14 semiautomatic rifles fire only in semiautomatic mode. (Plaintiffs’ Response to AG’s SUF
      10. 15 ¶¶ 7, 10, Doc. 92-1.) However, based on the evidence presented by the Attorney General,
      11. 16 this is a distinction without a difference. In enacting the now-defunct federal ban on
      12. 17 assault rifles, Congress found that their rate of fire––300 to 500 rounds per minute––makes
      13. 18 semiautomatic rifles “virtually indistinguishable in practical effect from machineguns.”6
      14. 19 (Id. ¶ 11.) See Henry, 688 F.3d at 639–40 (holding that machine guns are “dangerous and
      15. 20 unusual” weapons and outside scope of the Second Amendment). Reviewing similar
      16. 21 evidence, other courts have noted that semiautomatic rifles’ rate of fire is almost the same
      17. 22 as the M-16’


 

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Plaintiffs get serious and hire the Michel law firm for the appeal. Then they appeal to the Ninth Circuit.

Surprisingly few amicus briefs given the nature of the case.

The Ninth Circuit never rules but holds the case in abeyance in an order last December to await the outcome of Bruen.

Now we have Bruen, so we get the order tmoore912 posted above.
 

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So did Heller really say that M-16s can be banned? I don't think so, although Scalia thought so, according to his reactions at oral argument, but that is not actually what the opinion says, and it was not at issue in the case, making it dicta, at best.

It is just a hypothetical statement.

M-16 appears only once in the case.

It is just after a discussion of "dangerous and unusual weapons," a phrase from Miller relating to English common law and distinguishing such things from militia weapons. Miller was certainly not concluding that full auto guns were "dangerous and unusual," nor was it hinting at such a thing. So, following this mention, and a bunch of sources discussing it (that might be useful for any judge or attorney wanting to dig deeper), then the Court says:

"It may be objected that if weapons that are most usefulin military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."

That's it. Then they turn to the DC law to discuss it.

So is that a direction from the Supreme Court that M-16 rifles, the quintessential militia weapon (or, well, the M4), may be banned without offending the Second Amendment? I can see where some, hopeful, would seize upon it as such, but I don't really think that is what it says, and this is not what the court was actually considering. And it is a huge leap to say that AR15s are M16s, especially if you are going to make asinine claims of 500-600 rounds a minute from a semi-auto rifle. Give Judge Josephine Staton 500 or 600 rounds, set your timer and yell "Go!" and see how many rounds she can put downrange in 60 seconds.
 
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But this is part of the problem with what Scalia did in Heller. Miller all but said that the test was whether the item, in this case a short barreled shotgun, was "any part of the ordinary military equipment," and remanded to use that test.

Scalia did not want to do that. So he came up with this new core right of self defense. He could have added that to the militia use test, is it any part of the ordinary military equipment, but he decided instead to divorce the militia context from the right altogether.

During oral arguments, machine guns came up. Paul Clement (the man who got fired for winning too much) pointed out that such items were in common use, as hundreds of thousands are legally owned and registered. Scalia practically blew a raspberry at him, poo posing the idea and dismissing hundreds of thousands as nothing in the context of the population of the country.

BUT NO NEW MACHINE GUNS HAVE BEEN LEGAL SINCE 1986.

Ban something and then declare it not in common use . . .

Anyway, this was never the meaning of "dangerous and unusual."
 
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Clayton Cramer


But are all of these citations correct? They are a reminder that secondary sources are never as trustworthy as primary sources. Most of these cases cite Blackstone and indicate the prohibition of “going armed with dangerous or unusual weapons” comes from the Statute of Northampton (1328). While Blackstone’s Commentaries does attribute this prohibition to the Statute ofNorthampton, 3 the phrase in question does not appear there, or anything even similar to it.
 

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Ibid.

Massachusetts passed a statute in 1789 which prohibited storing loaded weapons in buildings to protect “the lives of those who are disposed to exert themselves when a fire happens to break out in [Boston]”. The items which could not be stored loaded are presumably the sort of weapons that Bostonians kept: “cannon, swivel, mortar, howitzer, or cohorn”13 and elsewhere in the statute:“fire-arms, bombs, granades, and iron shells of any kind...”14
 

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Similarly, a Philadelphia concern called Military Laboratory offered among its products for “Owners and Commanders of Armed Vessels” “Hand grenadoes, filled and fused.”16
 

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So we go from "dangerous and unusual," taken from secondary instead of primary sources, to Heller hinting that M16 rifles may be such items, to declaring that an AR15 rifle, the most popular rifle in America, is unusual, oh, and dangerous. That is the chain of logic to the California District Court case.

I am guessing she is still going to be able to dress up her old ruling to look like it meets the new standard.
 

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But she ought not to be able to do so. Historically, look at the list of items in posts 10 and 11 that were civilian owned even before the Second Amendment had been ratified.

A historical view would declare that field artillery with grape shot and mortars and hand grenades and such, and modern equivalents, would be protected by the constitution (although it is clear that the mass casualty versions could be regulated so as to keep them from being loaded when stored at home, in case of fire, a regulation with real, not pretend, historical precedent from the time of the founding).
 

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Let's start from what I call the Roe v. Wade premise. The courts want to make "X" legal/illegal. How do they write an opinion supporting that conclusion and plausibly link it to the Constitution? In this case, how do they keep the NFA intact and support the right of the people to keep and bear arms. As any five year old could tell you, you can't. So they made up the concept of "dangerous and unusual" weapons, which really means NFA weapons. This is simply legal gymnastics. I'm not necessarily disagreeing with this strategy. We went from Heller (keep) to Bruen (bear) in a decade. It's going to take longer to unwind further, perhaps another decade or we risk a mass backlash from a populace that has been trained to be hoplophobic. The district courts will rule, likely with a split due to the ambiguousness of the verbiage, and the Supremes will eventually have to resolve that split. Meanwhile, the "50 little laboratories" will work on resolving many core changes in law due to Bruen. Courts will likely want those resolved before taking on more edge cases. And PSA will continue to make black rifles "commonly available" to citizens of free states.
 
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