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Calif 10-round mag law blocked by judge

Scoop

.30-06
San Diego Union-Tribune
San Diego judge halts high-capacity gun magazine law from taking effect

by Kristina Davis Contact Reporter
6/30/2017
A law set to go into effect Saturday that would make it illegal for Californians to possess a gun magazine holding more than 10 rounds has been blocked for now by a San Diego federal judge.

U.S. District Court Judge Roger Benitez, in a strongly worded 66-page ruling Thursday, said the law would violate the Second Amendment right for gun owners to defend his home, unfairly take people’s property without compensation and make otherwise law-abiding citizens criminals if they merely possessed such high-capacity magazines.

The judge acknowledged the tragic toll gun violence has taken on this country, but stressed that “public safety interests may not eviscerate the Second Amendment.”

“Gun violence to carry out crime is horrendous and should be condemned by all,” wrote Benitez, nominated to the federal bench in 2003 by President George W. Bush. “Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim.”

Such magazines have been illegal to sell, manufacture, import or transfer since 2000 in the state. Last July, the Legislature passed a bill that would make ownership of the gun parts an infraction, and in November voters passed a similar, clarified measure, Proposition 63. Current owners were told they had to get rid of the offending pieces by either taking them to one of dozens of states where ownership is legal, selling the magazines to a licensed firearms dealer, or turning them in to law enforcement for destruction.

Last month, the California Rifle and Pistol Association — the state arm of the National Rifle Association — and five county residents filed a lawsuit claiming the law was infringing on the constitutional right to bear arms and other rights.

Three of the plaintiffs argued they want the magazines for self defense in the home, while two others are military veterans who say they already own the parts and should not have to give them up.

The judge ruled that a preliminary injunction blocking the law from taking effect was appropriate until the merits of the case can be more fully explored. He ordered state Attorney General Xavier Becerra to provide notice to all law enforcement that the law shall not be enforced. Authorities will still be able to investigate and prosecute the illegal importation, purchase, sale and manufacturing of such large-capacity magazines.

“Ultimately, this case asks two questions. ‘Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?’” Benitez said in his analysis. “Because a final decision on the merits is likely to answer both questions ‘yes,’ but a final decision will take too long to offer relief, and because the statute will soon visit irrevocable harm on Plaintiffs and all those similarly situated, a state-wide preliminary injunction is necessary and justified to maintain the status quo.”

Becerra said in a statement Thursday that the law was overwhelmingly approved by voters “to increase public safety and enhance security in a sensible and constitutional way.

“Restricting large capacity magazines and preventing them from ending up in the wrong hands is critical for the well-being of our communities. I will defend the will of California voters because we cannot continue to lose innocent lives due to gun violence,” he said.

In arguing against an injunction, the Attorney General’s Office pointed to notorious recent mass shootings involving large-capacity magazines, including the Orlando, Fla., nightclub massacre; the San Bernardino terror attack and the Newtown, Conn., shooting at an elementary school.

“When (large-capacity magazines) are used to commit crime, more shots are fired, more victims are wounded, and there are more wounds per victim,” Deputy Attorney General Alexandra Robert Gordon wrote in a motion. “This in turn leads to more injuries, more lethal injuries, and higher rates of death than crimes involving firearms with conventional magazines.”

She pointed to a report by the NRA that showed in half of all cases studied, two or fewer shots were fired when it came to self-defense incidents.

While the U.S. Supreme Court’s landmark ruling in District of Columbia v. Heller confirms an individual right to bear arms in the home, it also found that right is limited in scope and subject to regulation, Gordon said. Possessing a high-capacity magazine is not protected under that right, she argued.

The judge eviscerated the attorney general’s arguments and said while the lawyer was well-prepared in her presentation, she was not able to describe certain intricacies of the law.

“Who could blame her? The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law,” Benitez said. “Statutes must be sufficiently well-defined so that reasonably intelligent citizens can know what conduct is against the law.”

He also dismissed much of the evidence — including 3,100 pages of exhibits — submitted by the attorney general, noting much it was dated and included recent surveys of shooting incidents and news articles.

“In the end, it is a false dichotomy upon which the Attorney General rests his evidentiary case,” the judge wrote.

The lawsuit, filed May 17, is part of “a series of long and carefully planned lawsuits challenging the package of gun bans passed last year” in the wake of the San Bernardino mass shooting, lawyers for the organization said. Another lawsuit filed by the NRA affiliate in Orange County challenges the prohibition on the sale of semiautomatic rifles with “bullet buttons” that make it easier to replace magazines.

The case was filed by Michel & Associates, the Long Beach-based law firm that also challenged San Diego County’s limits on concealed-carry permits. The U.S. Supreme Court on Monday declined to take up the case, Peruta v. California. That means the 9th U.S. Circuit Court of Appeals ruling will stand, leaving the limits in place that require law-abiding permits holders have “good cause” to carry a concealed gun.
 
He sounds like a sensible judge. Good for him. Good for Cali gun owners... at least for the mean time.
 
It won't be long before a 5 round magazine is considered large capacity in California. They are boiling the frog.
 
The thing is you can still buy a dimpled 30 that only holds 10, and knock the dimples out.

I have one 30 that just has a long extention molded with the follower so it just holds 10.

Snip 2 bits of plastic & you have a 30.

Of course anybody can drive over the state line, buy whatever bits, and mail them back to themselves. Totally illegal, but not being stopped. They have never looked in my car or bike, coming back.

There are border stations, but the only thing I have ever been asked is, "Do you have any fruit?" Because the main concern is destructive Ag pests like the Med Fly.
 
The lefties have turned up the heat at the state and local levels since the election. They want absolute power and the only way to accomplish that is to disarm the populace. Turn us into subjects instead of citizens.
 
The NRA & CPRC have been granted injunction for the ban on centerfire rifles with removable mags.

That one would kill almost every gun dealer in CA, sending buyers to other states.
 
Since I actually read the source documents on these cases I am going to use this post to store some links to the library concerning Duncan v. Becerra.

Duncan v. Becerra

Case No.: 3:17-cv-1017-BEN - ORDER GRANTING PRELIMINARY INJUNCTION

IT IS HEREBY ORDERED that:
1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined from implementing or enforcing California Penal Code sections 32310 (c) & (d), as enacted by Proposition 63, or from otherwise requiring persons to dispossess themselves of magazines able to hold more than 10 rounds lawfully acquired and possessed.
2. Defendant Becerra shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice. IT IS SO ORDERED.
DATED: June 29, 2017
Hon. Roger T. Benitez
United States District Judge
 
Thank you Scoop.

I have just three comments about the first post.

1. hOORah!

2. Big Kudos on me "false dichotomy" revelation. Just because someone tells you A begats B, and it seems logical on the face of things, does not make it evidence, but in the case of a false dichotomy any evidence is irrelevant--which is why it was all tossed out.

"Do you still beat your wife?" is a question which implies a false dichotomy.

It presumes that you are either a current or former wife beater and there is no other possibility.

And as Perry Mason would say, "that presumes facts not in evidence!"

So the presumption that we can either "have gun control or have lots of criminals shooting people", and only those two possibilities exist, is the logic of a fool or a swindler.

3. And in that dichotomy I have 100% faith.
 
Okay four:

4. Is it "good cause" to carry a concealed weapon because our legal system lets dangerous criminals out of prison and back onto the streets everyday, and they continue to cause Mayhem and murder?

It is Well documented that we do this and they do that.

Now there is no guarantee that if you let a thousand criminals out of jail that lots of them will commit further crimes, but statistics show us that they do this. It's called recidivism and it's such a problem that we publish a rate... the percentage... the number of people who statistically will re-offend.

If you ask six cops you might get six different numbers but I guarantee they will all be higher than you would like or would feel comfortable with.

Particularly if you are not allowed to arm yourself against these miscreants who our system allows to run wild in the streets.
 
The people in office, Becerra et al, are the very ones we need to be able to protect ourselves from. If they have their way we will be subjects instead of citizens.
 
Ubiquitous mass media has made it very easy for the people they support to cause enormous trouble for the rest of us. They can give the world's biggest soap box to any subversive malcontent that they wish.

Far from reporting the news and acting in the public interest-- the very things for which they are legally licensed to do-- they are fostering violence, social irresponsibility, and hatred.

Outright hatred.
 
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UPDATE [Good News]
From NRA-ILA
Federal Appellate Court Upholds Decision to Block California’s Magazine Surrender Requirement
FRIDAY, JULY 20, 2018

Last summer, we reported on the welcome news that a federal court had blocked California’s plan to require owners of “large capacity” magazines to surrender or otherwise rid themselves of their formerly-lawful property. As the judge in that case had put it: “On July 1, 2017, any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime.” That was a bridge too far, he decided, and blocked enforcement of the law’s dispossession requirement. California appealed that ruling, and now over a year later a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the lower court’s ruling. The case, Duncan v. Becerra, is supported by both the NRA and the California Rifle & Pistol Association.

The plaintiffs in the lawsuit are challenging a 2016 ban on so-called “large capacity magazines” (i.e., most ammunition feeding devices “with the capacity to accept more than 10 rounds”). California’s law went beyond similar laws in other anti-gun states by prohibiting not only the manufacturing, sale, or importation of such magazines but also their possession, including by those who had lawfully obtained them before the ban’s effective date of July 1, 2017. The only way for such people to comply with the law’s new requirements would be to surrender their magazines to the police, move them out of the state, or sell the magazines to a licensed firearms dealer.

On June 29, 2017, Judge Roger T. Benitez of the U.S. District Court for the Southern District of California ruled that the requirement for current owners to dispossess themselves of lawfully-acquired magazines likely violated the Second Amendment and the Constitution’s Taking Clause. “If this injunction does not issue, hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property,” Judge Benitez wrote. “That is a choice they should not have to make.” He therefore ordered California not to enforce the dispossession requirements while the underlying case on the ban’s constitutionality was being resolved. Judge Benitez’s ruling did, however, allow for enforcement of the state’s ban on the manufacturing, sale, and importation of the magazines.

On Tuesday, two out of three judges hearing the case on appeal upheld that decision. Those judges emphasized that Judge Benitez was within his authority to discount the supposed support the state offered for the ban as “incomplete,” “unreliable,” and “biased.” The majority also chided the dissenting judge for substituting his own discretion for that of Judge Benitez, who had the primary responsibility to evaluate and weigh the evidence in the case. Notably, California had attempted to justify the ban before Judge Benitez by invoking, among other things, a 2013 report from the gun control advocacy group Mayor’s Against Illegal Guns.

Unfortunately, this latest decision does not conclusively resolve the case. California can appeal the enforcement ruling to the full Ninth Circuit, which could overturn the decision and allow the surrender provisions to go into effect. And even if the decision is allowed to stand, the underlying case still must be resolved before Judge Benitez, who could change his mind once all the evidence is fully presented.

All of which only underscores the importance of a strong Second Amendment backstop at the U.S. Supreme Court. Judge Brett Kavanaugh — President Trump’s latest nominee to the high court — could play a decisive role in this and other Second Amendment cases currently making their way through the lower courts.
 
I can't believe what is coming out of the Ninth Circus in relation to CCW and Mag restrictions. They used to be the least friendly circuit in the country and now these two rulings coming out in a week are almost too good to be true. Why the sea change in the 9th? I'm holding my breath. I hope this continues.
-- Scoop

The Liberal-Leaning Ninth Circuit Court of Appeals Affirms Right to Self-Defense

By Dave Dolbee published on July 27, 2018 in General

Rub your eyes now, because you are not going to believe what you are about to read. Two different panels of the Ninth Circuit Court of Appeals have written opinions that, when taken together, equate to a roadmap for the right to “keep and bear arms” with the right to open or constitutional carry for self-defense.

Magazine Bans
Last week, a divided court affirmed a trial court’s injunction blocking the state of California’s confiscation of so-called “large capacity” magazines. The court made two important statements. The first was that the Second Amendment protected ownership of weapons that have a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” The second key statement to the ruling statted “the ammunition for a weapon is similar to the magazine for a weapon.” That meant the state of California’s ban on magazines over 10 rounds was invalid under protections granted by the Second Amendment.

This new ruling, combined with Heller’s clear statement that the Second Amendment protects weapons in “common use” for “lawful purposes,” clearly prohibits lawmakers from proclaiming firearms such as AR-15s to be assault weapons in an effort to diminish their protection under the constitution.

Constitutional Carry
The second case was decided yesterday. A different panel of judges (in a 2-1 decision) struck down the state of Hawaii’s ban on openly carrying weapons outside the home. While this is an important victory, it is also a shift in the court’s thinking. The Ninth Circuit had previously ruled that the Second Amendment did not “preserve or protect a right of a member of the general public to carry concealedfirearms in public.” I am not sure if the court has simply come to a better understanding or the confirmation of Associate Justice Gorsuch and nomination of Kavanagh to the Supreme Court has simply forced them to wave the flag of surrender.

The Ninth Circuit is made of Western states such as California, Hawaii, Oregon, Washington, and a few more. Whichever way the court ruled, the decision is likely to be challenged and escalated to the Supreme Court.

The author of the majority opinion, Judge Diarmuid O’Scannlain, used a comprehensive analysis of early-American and post-Civil War gun rights debates (including the racist history of Reconstruction-era carry limitations on black Americans) and concluded that while the Second Amendment may not protect a right to concealed carry, it most definitely protects a right to carry.

The practical effect of the decision, especially combined with other case law, demonstrates that the state has a choice: protect a right to concealed carry, protect a right to open carry, or protect both. But if you block a citizen’s right to carry entirely (or limit the right to a “small and insulated subset of law-abiding citizens”), you violate those citizens’ right to “bear” arms.
 
(That was also not in the local paper yet. There was much about gun violence and retrospectives of past violence.)

Two things immediately come to mind:

In the law, as in academia, there is incredible pressure to conform to the leftist thinking of superiors emplaced during the demo-deconstructionism of the Clinton and Obama years.

That pressure lifted a notch with the rising Supreme Court justices; and, their honorable mission was clarified by the opposing liturgy of liberals and lawless leftists. Judges formerly reserving their good opinions (fearing censure from unreasonable political powers) are now speaking out. The truth was no longer unspeakable.

They also better understand what the American people expect, as demonstrated by the Trump market surge. Folks are spending, because this is the world-change they want. They are voting with their cash and the wheels are turning, both physical and virtual.

I always expect human activity to move in the traditional boom-and-bust fashion. This is our nature.

Now the conservative common sense boom is on; and leftists are pushing to bust us with free money for everyone, free college, free jobs, free immigration, free citizenship for everyone, guilt-free drugs, disposable babies and love-irrespective gender fluid sex adventures without responsibilities . . . This is the nonsense being foisted on good men by evil.

I think the leftist rise has about topped out for now, and things will swing steadily away from the recent nonsense for another 20 years or so.
 
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I hope you are right. The sky is falling right now according to the left . They are going crazy the latest appointment by Trump and the hearings have not even started.Can you imagine what they will do if say one of the liberal judges were to retire or fall asleep and not awaken .
 
California has seriously surprised me with their legal decisions this month. They're really on a roll here.

It made me respect them enough to not intentionally misspell the state name starting with a K in the opening sentence of my reply, which is in reference to Russian Communist "Kalifornia".

Now if you could just get rid of the politicians who are making these illegal and unconstitutional laws and you guys might be able to turn it around.
 
California has seriously surprised me with their legal decisions this month. They're really on a roll here.

It made me respect them enough to not intentionally misspell the state name starting with a K in the opening sentence of my reply, which is in reference to Russian Communist "Kalifornia".

Now if you could just get rid of the politicians who are making these illegal and unconstitutional laws and you guys might be able to turn it around.

I'm thinking it's because the SCOTUS is about to be stacked with Kavanaugh and the appointment of Gorsuch has them holding in their communism so they don't get struck down in a SCOTUS review of their decisions. They got a bit sporty when Scalia passed. Not to mention Scalia was pretty pissed the court didn't accept the case in which the 9th Circuit upheld the mandatory storage requirement when it was in a direct violation of the Heller Decision.

http://www.slate.com/blogs/the_slat...ourt_will_not_hear_san_francisco_handgun.html

It's been said the Kennedy has always been the one to walk away from these cases which means Kavanaugh would be a better fit to accept such cases if they can get Roberts on. There's even discussion that Scalia's majority opinion on the Heller case was watered down to appease Kennedy's vote.
 
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