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

[adrkwan]

I think you are right on this and that's why it's taking so long for SCOTUS to make a call. A complete ban would be an easy call but California wisely (by accident or not) only does partial bans almost all things 2A items. This is also why Duncan v Bonta is tied to the roster case which is another partial ban. Would a favorable ruling from SCOTUS essentially mean any bit of infringement on 2A is unconstitutional ?

I don't think so because Bruen allows for certain regulatory restrictions with historic analogues. If the mags were found to be governed by the 2A, the gov't would still be able to argue whatever restrictions they are attempting to impose were similar to those around the time the 2A/14A were ratified. It's a much harder hill for them to climb.

 

[tenemae]

As I expected, Wolford was the court's second bite at the Bruen apple. Alito effectively hand-held the lower courts through the reasoning of Bruen and how it applies to Wolford. If Bruen was sufficent to GVR Duncan, so is Wolford. But that's only if the conservatives on the court are foolish enough to think 9CA misapplied Bruen to Duncan through ignorance. It was obviously misapplied through malice.
I still think a GVR is on the table for Duncan. But my opinion is drifting as of late. Why would SCOTUS really give the benefit of the doubt that 9CA is thick enough to need a reiteration of prior guidance? Could a per-curium actually be in the cards here? Or does SCOTUS really want to go through the pains of hearing Duncan to fortify the first step of Bruen: What affects the right to keep and bear arms? Do "accoutrements" count?
I guess we'll find out Monday

 

[Jcwatchdog]

I think you are right on this and that's why it's taking so long for SCOTUS to make a call. A complete ban would be an easy call but California wisely (by accident or not) only does partial bans almost all things 2A items. This is also why Duncan v Bonta is tied to the roster case which is another partial ban. Would a favorable ruling from SCOTUS essentially mean any bit of infringement on 2A is unconstitutional ?

But I can’t see how the arbitrary 10 round limit is allowed. Why 10? They claim a 10 round magazine is a protected arm, but over 10 isn’t a protected arm? That makes no sense.

If they make the claim that even 10 aren’t protected since they’re not arms, then they’re basically conceding the state could ban them all
completely. The argument doesn’t hold water either way.

 

[treelogger]

But I can’t see how the arbitrary 10 round limit is allowed. Why 10? They claim a 10 round magazine is a protected arm, but over 10 isn’t a protected arm? That makes no sense.

Because if there is a limit at all, there has to be some limit. 0 or 1 is crazy, that would mean single-shot only, and Heller has held that "modern" firearms (such as a caliber 22 6-shooter revolver) are essential to self defense. On the other hand, 50 or 100 would be somewhat crazy, as very few magazines in practice are that capacity. We can now argue over 6, 7 or 8 (the standard capacity at the time of revolvers, 1911s, and single-stack), and 15 or 17 (the standard capacity of plastic pistols of the last generation), but the answer for a limit will be somewhere in the range around 5 to 20.

We could also argue that "only no limit is constitutional". That's a tough row to hoe, given that many other aspects of firearms can be restricted, such as caliber (destructive devices are banned both federally and in this state) or cadence (machine guns).

If they make the claim that even 10 aren’t protected since they’re not arms, then they’re basically conceding the state could ban them all
completely. The argument doesn’t hold water either way.

No. If the state "bans them all completely", then we run smack into Heller again. That's what DC tried, and Scalia fixed it. Whatever limit a state tries to put on it has to be "reasonable", defined as: still allows the core purpose of the 2A (which is described in Heller and Bruen) to be applied in real-world situations with functioning arms.

 

[grandpapeepap]

just to nitpick, but needing a DD permit federally for destructive devices doesnt make them banned. Unless you are talking something outside of what i think of with destructive device

 

[Experimentalist]

Because if there is a limit at all, there has to be some limit. 0 or 1 is crazy, that would mean single-shot only, and Heller has held that "modern" firearms (such as a caliber 22 6-shooter revolver) are essential to self defense. On the other hand, 50 or 100 would be somewhat crazy, as very few magazines in practice are that capacity. We can now argue over 6, 7 or 8 (the standard capacity at the time of revolvers, 1911s, and single-stack), and 15 or 17 (the standard capacity of plastic pistols of the last generation), but the answer for a limit will be somewhere in the range around 5 to 20...

Appreciate the insights.

I would vote for a magazine limit of 30. That's what most military rifles (M4's and the like) take, and those are in common use.

 

[1911-CV]

Why should a "Right" be subject to an arbitrary limitation. Even the 9th Circuit in NGUYEN V. BONTA (the 1 in 30 case) stated:

from NGUYEN V. BONTA Opinion...
We are not aware of any circumstance where government may temporally meter the exercise of constitutional rights in this manner. And we doubt anyone would think government could limit citizens’ free-speech right to one protest a month, their free-exercise right to one worship service per month, or their right to be free from unreasonable searches and seizures to apply only to one search or arrest per month. We could go on. If the frequency with which constitutional rights can be exercised could be regulated in this manner without infringement, what would limit government from deciding that a right need only be available every six months or once a year or at any other interval it chooses? California had no answer to this concern at oral argument.

The point is that the Second Amendment is more robust than California accepts. See Bruen, 597 U.S. at 70 (“The constitutional right to bear arms . . . is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” (quoting McDonald, 561 U.S. at 780)).

 

[treelogger]

just to nitpick, but needing a DD permit federally for destructive devices doesnt make them banned. Unless you are talking something outside of what i think of with destructive device

You're correct, and my wording was sloppy. But "banned or heavily regulated" doesn't roll off the tongue as well. The same applies to machine guns, silencers, assault rifles in California (yes, there are lots of already registered ones, and certain people can still register them), and so on.

 

[Jcwatchdog]

Because if there is a limit at all, there has to be some limit. 0 or 1 is crazy, that would mean single-shot only, and Heller has held that "modern" firearms (such as a caliber 22 6-shooter revolver) are essential to self defense. On the other hand, 50 or 100 would be somewhat crazy, as very few magazines in practice are that capacity. We can now argue over 6, 7 or 8 (the standard capacity at the time of revolvers, 1911s, and single-stack), and 15 or 17 (the standard capacity of plastic pistols of the last generation), but the answer for a limit will be somewhere in the range around 5 to 20.

We could also argue that "only no limit is constitutional". That's a tough row to hoe, given that many other aspects of firearms can be restricted, such as caliber (destructive devices are banned both federally and in this state) or cadence (machine guns).


No. If the state "bans them all completely", then we run smack into Heller again. That's what DC tried, and Scalia fixed it. Whatever limit a state tries to put on it has to be "reasonable", defined as: still allows the core purpose of the 2A (which is described in Heller and Bruen) to be applied in real-world situations with functioning arms.

But magazines themselves aren’t arms, per the 9th’s view, and the state of CA has opined that as long as the gun is functional without a magazine, that satisfies the 2nd amendment; so they have no worry about Heller at all. They’ve circumvented it completely. If magazines aren’t arms, they can be banned. If they say, “ok we concede the 10 round ones ARE arms and can’t be banned, but 11 or more AREN’T arms and can be banned”, that’s completely arbitrary and makes no sense. The state could them limit the magazine to 0, and require you to single load the rifle by hand if you follow this line of thinking. Any number between 0 and infinity can be the random magic number of rounds allowed, depending on which politician decides to write the law. We already saw this stupidity across the US. NY has 7, I think some states have 15, others 10.

 

[grandpapeepap]

thanks ruger

 

[cali_jazz]

,They left because the firm told them to drop their current 2A clients or walk. They walked. (Apparently, the announcement was made on the day SCOTUS ruled on Bruen - Clement argued against the state with Murphy as second chair).

Personally, watching Murphy at the 9 CA hearings, she scares the crap out of me. Her mind is so quick and responsive, it’s hard to follow because she drops the bomb and is on to the next target. Often, it feels like she’s running a seminar for the judges, and they are working hard to take notes.

She is awesome, but this Duncan argument before the 9th en banc was painful to watch. First they cut her opening statement off and immediately started drilling her non-stop. They constantly interrupted her and were clearly hostile to her arguments. Certain judges kept referring to "caliber" when they meant "capacity".

 

[treelogger]

the state of CA has opined that as long as the gun is functional without a magazine, that satisfies the 2nd amendment

The state is free to opine many things. That's the first amendment for you. There is no problem with a DoJ attorney pronouncing that elephants can fly, as long as they are blue. That doesn't make it the law. Heller takes care of that: no elephants can't fly, and a single-shot is not the core of the 2A.

If magazines aren’t arms, they can be banned.

You are seeing it in an absolutist black and white way. You're saying "anything that's an arm can't be banned, and anything that is not an arm can be". As I said before: banning all screws would not be constitutional, as it would make firearms impossible. Yet some things that are clearly firearms (such as a Thompson submachine gun) can be banned. (Yes, I know "banned or heavily regulated").

“ok we concede the 10 round ones ARE arms and can’t be banned, but 11 or more AREN’T arms and can be banned”,

See above. Some arms can be banned, some non-arm things can't be banned.

And as another example, look at the ban threshold for destructive devices: Why half inch? Why not 0.4 or 0.6 inch? Because there has to be a line somewhere (and yes, no need to argue over 12 gauge and 50BMG, that's just a didactic example).

The state could them limit the magazine to 0, and require you to single load the rifle by hand if you follow this line of thinking.

See above. They could not.

We already saw this stupidity across the US. NY has 7, I think some states have 15, others 10.

Welcome to the 10th amendment. States are allowed to regulate this as they fit, as long as they stay within the confines of the constitution (as applicable, see McDonald). Don't like the 10th amendment? Move to a country with a centralized legal system, or work on having the constitution changed.

Please cut out the absolutist black and white thinking. Law is not like math or philosophy. It is the art of the compromise.

 

[Dvrjon]

She is awesome, but this Duncan argument before the 9th en banc was painful to watch. First they cut her opening statement off and immediately started drilling her non-stop. They constantly interrupted her and were clearly hostile to her arguments. Certain judges kept referring to "caliber" when they meant "capacity".

Yeah, and she winds up explaining to them why the en banc hearing being held “right now” was inappropriate.

Killer.

 

[grandpapeepap]

The state is free to opine many things. That's the first amendment for you. There is no problem with a DoJ attorney pronouncing that elephants can fly, as long as they are blue. That doesn't make it the law. Heller takes care of that: no elephants can't fly, and a single-shot is not the core of the 2A.


You are seeing it in an absolutist black and white way. You're saying "anything that's an arm can't be banned, and anything that is not an arm can be". As I said before: banning all screws would not be constitutional, as it would make firearms impossible. Yet some things that are clearly firearms (such as a Thompson submachine gun) can be banned. (Yes, I know "banned or heavily regulated").


See above. Some arms can be banned, some non-arm things can't be banned.

And as another example, look at the ban threshold for destructive devices: Why half inch? Why not 0.4 or 0.6 inch? Because there has to be a line somewhere (and yes, no need to argue over 12 gauge and 50BMG, that's just a didactic example).


See above. They could not.


Welcome to the 10th amendment. States are allowed to regulate this as they fit, as long as they stay within the confines of the constitution (as applicable, see McDonald). Don't like the 10th amendment? Move to a country with a centralized legal system, or work on having the constitution changed.

Please cut out the absolutist black and white thinking. Law is not like math or philosophy. It is the art of the compromise.

you wont find me nitpick this part, some guns are banned by name or for "non sporting purposes" from being imported

 

[Jcwatchdog]

The state is free to opine many things. That's the first amendment for you. There is no problem with a DoJ attorney pronouncing that elephants can fly, as long as they are blue. That doesn't make it the law. Heller takes care of that: no elephants can't fly, and a single-shot is not the core of the 2A.


You are seeing it in an absolutist black and white way. You're saying "anything that's an arm can't be banned, and anything that is not an arm can be". As I said before: banning all screws would not be constitutional, as it would make firearms impossible. Yet some things that are clearly firearms (such as a Thompson submachine gun) can be banned. (Yes, I know "banned or heavily regulated").


See above. Some arms can be banned, some non-arm things can't be banned.

And as another example, look at the ban threshold for destructive devices: Why half inch? Why not 0.4 or 0.6 inch? Because there has to be a line somewhere (and yes, no need to argue over 12 gauge and 50BMG, that's just a didactic example).


See above. They could not.


Welcome to the 10th amendment. States are allowed to regulate this as they fit, as long as they stay within the confines of the constitution (as applicable, see McDonald). Don't like the 10th amendment? Move to a country with a centralized legal system, or work on having the constitution changed.

Please cut out the absolutist black and white thinking. Law is not like math or philosophy. It is the art of the compromise.

I’m not saying anything, they’re the ones saying it. They’re saying 10 is ok and 11+ is not for no other reason that picking a random number and going with it. It’s the same for SBRs federally; why 16” is ok but 15.5” isn’t doesn’t make much sense either. Just saying, “well there had to be a line some where” is fine, but they have to give a specific reason why. Not just picking a number randomly. If they pick a number without any other thought than “we had to pick some number”, that’s arbitrary. If they could make a case to say magazines that are 10 rounds aren’t dangerous but 11 rounds are and can be banned, they need to give a valid reason for that line of thinking.
The same with barrels, and why SBR laws are a bunch of bunk also. They need to defend why a 16” barrel on a rifle is ok, and why a 15.5” barrel is a 10 year felony. Was there some study that said anything under 16” was inherently more dangerous? No, they’re just chose it out of thin air arbitrarily.
Let me ask you, you said they couldn’t say 0. What about 4 or 5? We know NY already chose 7. They can just keep going down as much as they want as long as it’s more than 0?

 

[grandpapeepap]

I’m not saying anything, they’re the ones saying it. They’re saying 10 is ok and 11+ is not for no other reason that picking a random number and going with it. It’s the same for SBRs federally; why 16” is ok but 15.5” isn’t doesn’t make much sense either. Just saying, “well there had to be a line some where” is fine, but they have to give a specific reason why. Not just picking a number randomly. If they pick a number without any other thought than “we had to pick some number”, that’s arbitrary. If they could make a case to say magazines that are 10 rounds aren’t dangerous but 11 rounds are and can be banned, they need to give a valid reason for that line of thinking.
The same with barrels, and why SBR laws are a bunch of bunk also. They need to defend why a 16” barrel on a rifle is ok, and why a 15.5” barrel is a 10 year felony. Was there some study that said anything under 16” was inherently more dangerous? No, they’re just chose it out of thin air arbitrarily.
Let me ask you, you said they couldn’t say 0. What about 4 or 5? We know NY already chose 7. They can just keep going down as much as they want as long as it’s more than 0?

its not random, blame ruger

 

[treelogger]

Let me ask you, you said they couldn’t say 0. What about 4 or 5? We know NY already chose 7. They can just keep going down as much as they want as long as it’s more than 0?

That's for a court to decide, when reviewing laws. Heller (which established, for the first time in about 50 or 60 years, that the 2A is actually an individual right) was about a 6-shooter. That does not automatically translate in "6 good, 5 bad" (or "... 7 bad"), but it gives you some guidance: the firearm has to be functional for the purpose of self defense in the house.

No number is arbitrary: For most numbers (same with barrel length and caliber) I can find some sensible justification. The question which justification to pick is up to legislators and courts, not you or me.

 

[tenemae]

They’re saying 10 is ok and 11+ is not for no other reason that picking a random number and going with it.

They would have had a much easier time if they had instead set the limit at 30, since that's standard issue. Anything over might arguably fall outside of Heller's "commonly owned for lawful purposes". Instead they got greedy and went for a baseless 10. But after Bruen, they would have needed to find analogous historical laws to keep the farce up.
Bruen threw up a major challenge to a lot of currently enforced laws, including SBRs, suppressors, etc. But having the framework and asking a court to apply it are different things.

 

[grandpapeepap]

In 1989, William B. Ruger Sr., the co-founder of Sturm, Ruger & Co., actively pushed for magazine capacity limits.
Ruger wrote a letter to every member of the U.S. Congress on March 30, 1989. He proposed banning the possession of magazines holding more than 15 rounds as a tactical move to prevent broader bans on semi-automatic rifles. He famously stated in a 1992 interview, "No honest man needs more than 10 rounds in any gun"

remember at the time mini14s had 10 round mags from ruger. remember its not "random" where they got the 10 round limit, it was by design from someone who sold mostly non 30round mag firearms

 

[CadeH]

I’m not saying anything, they’re the ones saying it. They’re saying 10 is ok and 11+ is not for no other reason that picking a random number and going with it. It’s the same for SBRs federally; why 16” is ok but 15.5” isn’t doesn’t make much sense either. Just saying, “well there had to be a line some where” is fine, but they have to give a specific reason why. Not just picking a number randomly. If they pick a number without any other thought than “we had to pick some number”, that’s arbitrary. If they could make a case to say magazines that are 10 rounds aren’t dangerous but 11 rounds are and can be banned, they need to give a valid reason for that line of thinking.
The same with barrels, and why SBR laws are a bunch of bunk also. They need to defend why a 16” barrel on a rifle is ok, and why a 15.5” barrel is a 10 year felony. Was there some study that said anything under 16” was inherently more dangerous? No, they’re just chose it out of thin air arbitrarily.
Let me ask you, you said they couldn’t say 0. What about 4 or 5? We know NY already chose 7. They can just keep going down as much as they want as long as it’s more than 0?

The 10 round limitation came from the 1994 Crime Bill. From 1927 to 1994 something like 3 states had limits with random numbers- 12, 14, 18, but they all only applied to the firearm when a magazine is inserted into them and it varied whether or not it was semi autos only or if rimfire was exempt. Edit: And all of them except DC repealed them in the 50s-70s. The only place to regulate magazines themselves before 1994 was Washington DC, which considered any semi auto firearm with the ability to shoot more than 12 rounds before reloading to be a machine gun and banned the possession of 12+ round mags as well. After the 1994 Crime Bill the magazines themselves were limited to 10 rounds while the definition of a machine gun was only changed after Heller. Under that definition all semi auto pistols were banned, but it didn't really matter because DC stopped allowing handguns after 1975.