DUNCAN V. BONTA GOES TO SCOTUS CONFERENCE - California Large Capacity Magazine Prohibition

[shroom]

Gents, The fact that this is getting continually rescheduled is a sign that the justices are struggling with the case. The court is closely divided on Second Amendment cases, and the justices are careful to select cases where the case facts closely align with an issue that they collectively want to settle. Duncan has the potential to be such a case.

Or 6+ of the justices don't want to hear it, and it's just being rescheduled until Thomas can write a dissent and Kavanaugh can write a "please try again later."

 

[Dvrjon]

No limit. Looking at it with optimism, they could just deny cert if they don’t want to hear it.

Optimism? If Duncan is denied, everybody in the state who owns LCMs (except LEOs) will have to lose or alter their property. More importantly, the absurd premises upon which the 9 CA operated on this issue will become enshrined in their future work as precedents. Chief among these is to simply declare components as not “arms” and then banning them.

 

[Dvrjon]

Or 6+ of the justices don't want to hear it, and it's just being rescheduled until Thomas can write a dissent and Kavanaugh can write a "please try again later."

Well, since it's been cycled for two months, and the responses you cite would be repetitious of previous writings, isn't it likely that those treatises would already have been written?

That leads me to believe there is more at work, here.

 

[treelogger]

I wonder whether they were deliberately holding 2A cases until after the Wolford hearing, and perhaps after the decision in Wolford is drafted. The result in Wolford seems pre-ordained, given that the 6 conservative justices were asking leading questions, and openly playing to the peanut gallery. As were the 3 liberal justices, but they seem to be in the 6-3 minority. But the bigger question is what impression the Wolford hearing left among the chattering classes, and how much it changes (damages? reinforces?) the Bruen method. One interesting thing that the conservative justices may have (unintentionally? intentionally?) done is to use Wolford to drive a stake through the heart of the Bruen "tradition and history" test, already wounded by Rahimi. Here's the underlying issue: Several justices (I think including the chief justice) said that the 2A needs to be treated just like the any other enumerated right. But Bruen says that the 2A has its own legal theory, not applied to any other right. In view of Wolford potentially changing the landscape, the court may want to tailor what other 2A cases it hears soon, to prevent jerking themselves around.

And no, that's not about the superficial questions we're asking here (should magazine capacity be limited? are magazines and other accessories arms or not? is this a takings situation?) but about a much deeper question, the level and method of scrutiny to be applied.

 

[Dvrjon]

There are now a number of major 2A cases before the Court through either Writ for Cert or acceptance for cert. These are the major ones "closest to the wire" (no, it is not all of the cases up for Cert or in the pipeline)..

Duncan: Are mags arms and how should Bruen, et. al., be interpreted in the lower courts?

Gator’s Custom Guns: Same as Duncan, but developed through Washington State courts with very little record developed and no federal record in place. Certing Duncan and holding Gator's will serve to settle both.

Viramontes: Assault Weapons Ban. Marginally touches on some of the Founder’s principles in Duncan, but doesn't reach the "arms" discussion or the status of magazines.

Hemani: Gun possession by drug users. SET FOR ARGUMENT on Monday, March 2, 2026.

Wolford: Hawaii's CCW Vampire Rule. Argued 20 Jan 2026.

The Court knows they have to deal with these issues sooner and also later. So, they need to find a vehicle which could reach across cases to resolve many through the resolution of the one.

I see Hemani and Wolford as separate issues which when settled will have marginal impact on the 2A community (although CCW would get a boost out of a win in Wolford).

Of all of these, Duncan has a fully developed history of 4 approvals (District x2; 9 CA x 2) and 2 Denials at 9 CA en banc. It also is the one case which seems to dig below the surface of the challenged law, but also calls out the mangled and conflicting interpretations of Heller and Bruen by the lower courts. If SCOTUS reviews Duncan, they will be reviewing levels of process being used in the lower courts and have the opportunity to either endorse the lower court interpretations or kill them outright.

There also is a need to resolve the issue without doing irreparable harm to the population. Duncan has a "dispossession" element and a "Takings" due process element. While Gators is a ban on LCMs, it is less harmfull as it contains a grandfather clause allowing retention. (Much like the aspect removed from CA law). If Gators is reviewed and supported, then the retention of magazines remains unsettled in CA.

Duncan seems to have the ability to act as the first domino in a long line of jurisprudence shenanigans. If it topples one way, it has the ability to dramatically restructure the lower court rulings in our favor.

If it topples the other way, the antis will have a benchmark to control virtually everything related to firearms, if not the firearm itself.

 

[Dvrjon]

Several justices (I think including the chief justice) said that the 2A needs to be treated just like the any other enumerated right. But Bruen says that the 2A has its own legal theory, not applied to any other right. In view of Wolford potentially changing the landscape, the court may want to tailor what other 2A cases it hears soon, to prevent jerking themselves around.

I don't disagree with the basis of your comment...the issue is deeper than the question put before the Court, and the Duncan paperwork seems to highlight a number of significant issues going on in the lower courts regarding Bruen.

To your point, above, I think there are enumerated rights which enjoy their own legal theories not applicable to the other rights.

-The First Amendment uses categorical exclusion tests (obscenity; hate speech, etc.) along with distinct test like Time, Place and Matter and Actual Malice. The First Amendment is unique in the number of different government interests invoked to justify government restrictions and the number of doctrinal tests that assess (and sometimes fail to assess) those interests.
-The Fourth Amendment review restricts violations of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
-The Eighth Amendment relies on evolving standards of decency. The evolution of "Cruel and Unusual" punishments reflects the unique application.

So, the Constitution already contains within the Bill of Rights, a number of enumerated rights which are applied under their own legal theories which are inapt for application to other enumerated rights. I don't see te conflict you're expressing.

 

[treelogger]

I partially agree, partially disagree with you.

For several of the BoR amendments, there is a balancing test: The government clearly has an interest in restricting certain forms of speech (the most extreme example include restrictions on what doctors and lawyers can say as part of their job, or speech that is part of planning a crime being in and of itself punishable as a conspiracy), it has an interest in performing reasonable searches and seizures, and it performs gentle and usual punishment. The mere act of balancing is pretty universal for all individual rights, which have to be balanced against the rights of other individuals to be "safe and secure" (the old: your right to swing your fist ends at my nose, or better a few inches before it), and against the right of the state to both ensure the safety of others, and maintain its monopoly on force. That balancing has caused centuries of fuss about levels of scrutiny. The absolutists among 2A proponents claim that no such test is possible in gun rights, that the 2A must mean "all guns for everyone all the time". And while no Supreme Court case has gone as far as agreeing with those absolutists, Bruen gets interestingly close, by saying that no balancing test can be performed in isolation, it has to only use "history and tradition" laws.

That level of scrutiny is the originalism (a product of Justice Thomas) that is 2A specific. No other right has a similar time-based restriction on how to evaluate it. I suspect that for Justice Thomas, Bruen was the golden opportunity to get the camel's nose of originalism under the tent. And the other conservative justices allowed him to do it, because they didn't care what the justification was, the Sullivan act at issue in Bruen was so onerous, it had to go, using whatever cockamamie reason the old crackpot would come up with. I think the writing in Rahimi shows that the other justices were actually surprised by what Bruen really has done to scrutiny analysis, and didn't like it a bit.

And this is where I see the real complexity of Wolford. The reason Wolford is so dangerous to Bruen is that the state defending the Hawaii vampire rule found a lot of precedent from the late 1700s. If the court were to apply Bruen logically, the vampire rule would have to survive. Yet, that result is abhorrent to the 6 conservatives. So now they have two choices: restrict carry rights, or damage/kill Bruen. Matter-of-fact, I suspect that 3 or 4 of the 6 conservatives would like to kill Bruen anyway, because they are definitely not originalists: they don't want to be bound by historical analysis if it doesn't fit their world view on any particular case. And among liberal constitutional scholars, originalism has never been popular. So one possible outcome of Wolford might be that we see a set of concurrences/dissents that (a) stop the vampire rule and allow carry in private businesses in Hawaii by a 6:3 majority, yet (b) stop the application of Bruen by a 7:2 or 8:1 majority.

And if Bruen dies in the next few months, a lot of "how to fight 2A cases" will have to be yet again re-evaluated, on both sides. And if it dies, there is suddenly much less reason to think about Duncan, which has at its core as one of its questions: how should Bruen even be applied?

Where I completely agree with you: The issues in Duncan would allow the court to reach a very wide-ranging ruling, which could completely change the 2A lay of the land, for better or worse. I'm not sure the court has the appetite at this point in our political situation, as there are other high-stress cases piling up, brought on by the current executive. On the other hand, the court might want to use a big and powerful 2A ruling to improve its credibility and standing with some segment of society, but I can't predict which segment they feel particularly in need to please.

 

[skb720]

...

And if Bruen dies in the next few months, a lot of "how to fight 2A cases" will have to be yet again re-evaluated, on both sides. And if it dies, there is suddenly much less reason to think about Duncan, which has at its core as one of its questions: how should Bruen even be applied?

Where I completely agree with you: The issues in Duncan would allow the court to reach a very wide-ranging ruling, which could completely change the 2A lay of the land, for better or worse. I'm not sure the court has the appetite at this point in our political situation, as there are other high-stress cases piling up, brought on by the current executive. On the other hand, the court might want to use a big and powerful 2A ruling to improve its credibility and standing with some segment of society, but I can't predict which segment they feel particularly in need to please.

I bet that is exactly the reason they keep punting Duncan into the next conference. If Bruen dies, does that mean cases such as Miller, Rhode, etc. will need to be kicked back to the district court level (e.g. Judge Benitez?)

 

[Deleted member 16735]

I partially agree, partially disagree with you.

For several of the BoR amendments, there is a balancing test: The government clearly has an interest in restricting certain forms of speech (the most extreme example include restrictions on what doctors and lawyers can say as part of their job, or speech that is part of planning a crime being in and of itself punishable as a conspiracy), it has an interest in performing reasonable searches and seizures, and it performs gentle and usual punishment. The mere act of balancing is pretty universal for all individual rights, which have to be balanced against the rights of other individuals to be "safe and secure" (the old: your right to swing your fist ends at my nose, or better a few inches before it), and against the right of the state to both ensure the safety of others, and maintain its monopoly on force. That balancing has caused centuries of fuss about levels of scrutiny. The absolutists among 2A proponents claim that no such test is possible in gun rights, that the 2A must mean "all guns for everyone all the time". And while no Supreme Court case has gone as far as agreeing with those absolutists, Bruen gets interestingly close, by saying that no balancing test can be performed in isolation, it has to only use "history and tradition" laws.

That level of scrutiny is the originalism (a product of Justice Thomas) that is 2A specific. No other right has a similar time-based restriction on how to evaluate it. I suspect that for Justice Thomas, Bruen was the golden opportunity to get the camel's nose of originalism under the tent. And the other conservative justices allowed him to do it, because they didn't care what the justification was, the Sullivan act at issue in Bruen was so onerous, it had to go, using whatever cockamamie reason the old crackpot would come up with. I think the writing in Rahimi shows that the other justices were actually surprised by what Bruen really has done to scrutiny analysis, and didn't like it a bit.

And this is where I see the real complexity of Wolford. The reason Wolford is so dangerous to Bruen is that the state defending the Hawaii vampire rule found a lot of precedent from the late 1700s. If the court were to apply Bruen logically, the vampire rule would have to survive. Yet, that result is abhorrent to the 6 conservatives. So now they have two choices: restrict carry rights, or damage/kill Bruen. Matter-of-fact, I suspect that 3 or 4 of the 6 conservatives would like to kill Bruen anyway, because they are definitely not originalists: they don't want to be bound by historical analysis if it doesn't fit their world view on any particular case. And among liberal constitutional scholars, originalism has never been popular. So one possible outcome of Wolford might be that we see a set of concurrences/dissents that (a) stop the vampire rule and allow carry in private businesses in Hawaii by a 6:3 majority, yet (b) stop the application of Bruen by a 7:2 or 8:1 majority.

And if Bruen dies in the next few months, a lot of "how to fight 2A cases" will have to be yet again re-evaluated, on both sides. And if it dies, there is suddenly much less reason to think about Duncan, which has at its core as one of its questions: how should Bruen even be applied?

Where I completely agree with you: The issues in Duncan would allow the court to reach a very wide-ranging ruling, which could completely change the 2A lay of the land, for better or worse. I'm not sure the court has the appetite at this point in our political situation, as there are other high-stress cases piling up, brought on by the current executive. On the other hand, the court might want to use a big and powerful 2A ruling to improve its credibility and standing with some segment of society, but I can't predict which segment they feel particularly in need to please.

All that could be true if the law were actually logical. The reality is that the law is fake and subject to opinion and they will justify it however they please. Wolford seems like a done deal as far as killing the vampire rule, I really doubt they would do it in a way that has any effect on their cases from only a few years ago. I actually think that Bruen is not nearly as strong as most people here do though, it left plenty of room to regulate all manner of arms and whatever we call magazines.

 

[shroom]

Well, since it's been cycled for two months, and the responses you cite would be repetitious of previous writings, isn't it likely that those treatises would already have been written?

That leads me to believe there is more at work, here.

We can hope. Snope v Brown was relisted 15 times before it was denied cert. It could very well be something as simple as Thomas being stubborn and taking his sweet time to write a dissent. Seems to me that's what happened in Snope, may be what's happening here.

 

[Dvrjon]

Where I completely agree with you: The issues in Duncan would allow the court to reach a very wide-ranging ruling, which could completely change the 2A lay of the land, for better or worse. I'm not sure the court has the appetite at this point in our political situation, as there are other high-stress cases piling up, brought on by the current executive. On the other hand, the court might want to use a big and powerful 2A ruling to improve its credibility and standing with some segment of society, but I can't predict which segment they feel particularly in need to please.

I think that this is the sticking point. Bruen is such a mess in the lower courts now because guidance is so open to interpretation that some courts say magazines are arms and some say they aren’t. Simple issue, but the result is protection or lack of protection under 2A. Duncan drives to foundational interpretation issues of Bruen and to resolve all of the issues in Duncan could create a checklist for lower courts to follow in 2A litigation. A ruling in Duncan could straitjacket lower courts into a one-size fits all structure for 2A.

While some members of the Court may be ready to provide detailed instructions below, others are probably reluctant to usurp the role of the lower courts to think independently. As to which segment of society to please, I keep sensing that this Court values the wisdom of Solomon, equally sharing the judgment but displeasing both parties.

That’s why, as much as I really want Duncan to be heard and decided against the state, I suspect there is discussion about a less comprehensive issue which would allow for some clarification on Bruen application without blowing up the lower courts.

Of course, that would mean another series of GVR, dumping Duncan (and other cases in lower courts) back down the ramp for yet another reconsideration under the new rules. This is Chutes and Ladders for adults.

 

[Angrysnarf]

Wolford (Hawaii?) was heard this week. It deals with CCW carry restrictions, specifically the Vampire Rule, and while it may marginally touch on the areas of Duncan, it doesn’t appear to provide direct impact on Duncan. At any rate, they most likely won’t publish the Decision until the end of term.

Point is scotus is at least looking at a pro 2a thing finally

 

[GoldensRule]

I think that this is the sticking point. Bruen is such a mess in the lower courts now because guidance is so open to interpretation that some courts say magazines are arms and some say they aren’t. Simple issue, but the result is protection or lack of protection under 2A. Duncan drives to foundational interpretation issues of Bruen and to resolve all of the issues in Duncan could create a checklist for lower courts to follow in 2A litigation. A ruling in Duncan could straitjacket lower courts into a one-size fits all structure for 2A.

Not very surprising that Bruen is confusing not to mention convoluted and illogical, it was the brainchild of Clarence Thomas. I have little doubt that when Scotus is realigned after the demise of this regime that Bruen will go the way of Roe V. Wade and be thrown upon the ash heap of American history.

 

[Dvrjon]

Not very surprising that Bruen is confusing not to mention convoluted and illogical, it was the brainchild of Clarence Thomas. I have little doubt that when Scotus is realigned after the demise of this regime that Bruen will go the way of Roe V. Wade and be thrown upon the ash heap of American history.

So, like Roe, it will stand for over half a century?

 

[GoldensRule]

So, like Roe, it will stand for over half a century?

Oh no, the precedent has been set that precedent doesn't matter in the SCOTUS. Plus, there have been so many rulings by SCOTUS over the past 34 years or so that are arguably a direct result of corruption that we can expect many of those rulings to be fed through the confetti shredder of history, particularly rulings pertaining to executive immunity and power (if we even still have an office of President) and campaign finance and dark monies.

The pendulum swings in both directions and under this regime, it's just about reached it's wingnut point of zero velocity. Enormous changes are coming.

 

[tenemae]

Oh no, the precedent has been set that precedent doesn't matter in the SCOTUS.

I hate to play the eternal pessimist, but I think the real precedent here is that blue states are gonna blue state. The response to Bruen was to drag their feet on CCW issuance, jack up the license cost, and invent all sorts of flaming hoops applicants have to jump through. Bruen was disastrous in that it allowed the permitting scheme to continue. Even if it didn't, SB2 was always going to happen. There is a joke post on social media making the rounds saying hawaii will require CCWers to wear orange armbands. It's barely parody.
Duncan will be the same. New storage requirements, laws that magazines need to be serialized and registered, background checks to buy springs. The heart of a grabber is black and cold, and their ingenuity devious. Despite our court "wins", it's harder than ever to be a gun owner in CA. I see no possible future where finger-wagging from a court makes blue state legislators take a knee and say "ok, you got us. We'll stop passing unconstitutional laws now". The only way this truly ends is with a federal conspiracy against rights trial

 

[jhsd20]

All that could be true if the law were actually logical. The reality is that the law is fake and subject to opinion and they will justify it however they please. Wolford seems like a done deal as far as killing the vampire rule, I really doubt they would do it in a way that has any effect on their cases from only a few years ago. I actually think that Bruen is not nearly as strong as most people here do though, it left plenty of room to regulate all manner of arms and whatever we call magazines.

100%

Judicial decisions are like acronyms in this country, the desired end result is chosen first then what it stands for is awkwardly filled in after.

 

[adrkwan]

For those of you that want an audio transcript of Wolford.

https://www.oyez.org/cases/2025/24-1046

Edit: URL has a weird name.

 

[SnFour]

I partially agree, partially disagree with you.

For several of the BoR amendments, there is a balancing test: The government clearly has an interest in restricting certain forms of speech (the most extreme example include restrictions on what doctors and lawyers can say as part of their job, or speech that is part of planning a crime being in and of itself punishable as a conspiracy), it has an interest in performing reasonable searches and seizures, and it performs gentle and usual punishment. The mere act of balancing is pretty universal for all individual rights, which have to be balanced against the rights of other individuals to be "safe and secure" (the old: your right to swing your fist ends at my nose, or better a few inches before it), and against the right of the state to both ensure the safety of others, and maintain its monopoly on force. That balancing has caused centuries of fuss about levels of scrutiny. The absolutists among 2A proponents claim that no such test is possible in gun rights, that the 2A must mean "all guns for everyone all the time". And while no Supreme Court case has gone as far as agreeing with those absolutists, Bruen gets interestingly close, by saying that no balancing test can be performed in isolation, it has to only use "history and tradition" laws.

That level of scrutiny is the originalism (a product of Justice Thomas) that is 2A specific. No other right has a similar time-based restriction on how to evaluate it. I suspect that for Justice Thomas, Bruen was the golden opportunity to get the camel's nose of originalism under the tent. And the other conservative justices allowed him to do it, because they didn't care what the justification was, the Sullivan act at issue in Bruen was so onerous, it had to go, using whatever cockamamie reason the old crackpot would come up with. I think the writing in Rahimi shows that the other justices were actually surprised by what Bruen really has done to scrutiny analysis, and didn't like it a bit.

And this is where I see the real complexity of Wolford. The reason Wolford is so dangerous to Bruen is that the state defending the Hawaii vampire rule found a lot of precedent from the late 1700s. If the court were to apply Bruen logically, the vampire rule would have to survive. Yet, that result is abhorrent to the 6 conservatives. So now they have two choices: restrict carry rights, or damage/kill Bruen. Matter-of-fact, I suspect that 3 or 4 of the 6 conservatives would like to kill Bruen anyway, because they are definitely not originalists: they don't want to be bound by historical analysis if it doesn't fit their world view on any particular case. And among liberal constitutional scholars, originalism has never been popular. So one possible outcome of Wolford might be that we see a set of concurrences/dissents that (a) stop the vampire rule and allow carry in private businesses in Hawaii by a 6:3 majority, yet (b) stop the application of Bruen by a 7:2 or 8:1 majority.

And if Bruen dies in the next few months, a lot of "how to fight 2A cases" will have to be yet again re-evaluated, on both sides. And if it dies, there is suddenly much less reason to think about Duncan, which has at its core as one of its questions: how should Bruen even be applied?

Where I completely agree with you: The issues in Duncan would allow the court to reach a very wide-ranging ruling, which could completely change the 2A lay of the land, for better or worse. I'm not sure the court has the appetite at this point in our political situation, as there are other high-stress cases piling up, brought on by the current executive. On the other hand, the court might want to use a big and powerful 2A ruling to improve its credibility and standing with some segment of society, but I can't predict which segment they feel particularly in need to please.

There was absolutely not “a lot of precedent” found by Hawaii, and is why expensive Neal Katyal floundered so much when forced to argue in front of a court that doesn’t rubber stamp every gun law.

The only analogue they found was one black code which was not from the 1700s, found in only one locality, and invalidated by the 14th amendment.

It’s fine that you’re hostile to carry as a right based on your arguments, but don’t pretend that Hawaii has any kind of logical or legal defense of their scheme.

 

[SnFour]

Oh no, the precedent has been set that precedent doesn't matter in the SCOTUS. Plus, there have been so many rulings by SCOTUS over the past 34 years or so that are arguably a direct result of corruption that we can expect many of those rulings to be fed through the confetti shredder of history, particularly rulings pertaining to executive immunity and power (if we even still have an office of President) and campaign finance and dark monies.

The pendulum swings in both directions and under this regime, it's just about reached it's wingnut point of zero velocity. Enormous changes are coming.

So Supreme Court precedent should be immutable? Should we be living under the rulings of Dred Scott, Korematsu, and Plessy Ferguson in the year 2026? Or is it only precedent from the mid 20th century that should be enshrined forever?

Also the Obama admin shouldn’t have done such a terrible job arguing Citizens United. Once their attorney argued that they as the government should be able to stop a company from publishing a political book the outcome was inevitable.