Duncan v. Bonta magazine ban, state filings in support of ban

B.L.U.F. California lies by omission and misrepresentation in their claims as well as ignoring the Supreme Courts actual opinions.

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California’s restrictions on manufacture, importation, sale, and possession of large-capacity magazines (“LCMs”)—firearm magazines capable of holding more than ten rounds of ammunition—fully comport with the Second Amendment.1 The surveys of relevant historical laws submitted in accordance with the Court’s December 15 Order only reinforce that conclusion. See Dkt. 139. Those surveys list hundreds of laws, ordinances, and authorities that demonstrate a robust tradition of regulating certain specified weapons deemed by the government to be uniquely dangerous to the public and susceptible to criminal misuse. In the past, state and local governments restricted concealable weapons that were contributing to rising homicide rates. Today, governments are also restricting other types of weapons and accessories, including LCMs, that are being used frequently in mass shootings and contributing to greater numbers of victims killed and injured in such shootings.

Because Bruen requires inferior courts to judge Second Amendment cases on text, history and tradition of the the Second Amendment at the time of ratification if a law is found to impinge on the unconditional command of the Second Amendment, “the right of The People to keep and bear arms shall not be infringed.” the gun grabbers have setup entire institutions to provide example laws to support infringing law.

The Supreme Court has stated that the time in question is the founding of the country. This is the time when the people deliberated and voted and ratified the Constitution and the Bill of Rights. When a gun grabber says that the Constitution does not represent the will of the people they are completely incorrect. It represents the will of the people when ratified.

To discard the unwanted parts of the constitution, or any code of laws, because it is no longer the “will of the people” is ludercrase on the face of it. No leftist would ever admit that their law dajur should be ignored just because the will of the people changed. If the will of the people has truly changed, then the left can propose an amendment and see how far it gets.

The only laws that can be used to support current gun infringements are those in place in 1791 extending to 1826. If there are laws that support current infringements in the time of the ratification of the 14th amendment, those can be used to support laws from 1791 through 1826 but not supplant them.

Laws 1-15 cover 1383 through 1788.

15: Virginia, per the words of the state “Prohibit any ‘negro or mulatto’ from possessing or carrying a gun, powder, shot, club, or other weapon”.

An Act to Reduce into one, the Several Acts Concerning Slaves, Free Negroes, and Mulattoes (1792), § 8. No negro or mulatto whatsoever shall keep or carry any gun, powder, shot, club, or other weapon whatsoever, offensive or defensive, but all and every gun, weapon, and ammunition found in the possession or custody of any negro or mulatto, may be seized by any person, and upon due proof thereof made before any Justice of the Peace of the County or Corporation where such seizure shall be, shall by his order be forfeited to the seizor for his own use ; and moreover, every such offender shall have and receive by order of such Justice, any number of lashes not exceeding thirty-nine, on his or her bare back, well laid on, for every such offense. § 9. Provided, nevertheless, That every free negro or mulatto, being a house-keeper, may be permitted to keep one gun, powder and shot; and all negroes and mulattoes, bond or free, living at any frontier plantation, may be permitted to keep and use guns, powder, shot, and weapons offensive or defensive, by license from a Justice of Peace of the County wherein such plantation lies, to be obtained upon the application of free negroes or mulattoes, or of the owners of such as are slaves.

So the leftist AG of California has as his first supporting law a law saying that anybody can steal firearms, powder, and shot from any “negro or mulatto” and then have that negro or mulatto whipped.

Even so, if a negro or mulatto was a “house-keeper” can be armed with one gun. Those living on any frontier plantation can get a permit to own from the Justice of the Peace.

So it is not even an out right ban on guns for a class of people. Still the cited law leaves a bad taste in my mind over its blatant racism.

16,17,18 are described by the AG as racist as well.

19 is described by the AG as prohibiting carrying a weapon with intent to assault a person. So it wasn’t the object but the intent plus object that was prohibited.

20 is a surety law.

21,22 are more slave laws

23 is another carry with intent.

24 prohibits concealed carry and my reference is truncated.

25 carry with intent

26 slave law.

27 is a fire regulation. The gist is that if you live in a city (town with more than 1500 inhabitants), the selectmen can pass regulations on how to store gunpowder. If there is reason to believe that the powder is not being stored correctly or there is to much of it, the city can get a warrant to search and confiscate the powder.
An Act for the prevention of damage by Fire, and the safe keeping of Gun Powder.

28-191 are all post founding era and are not supporting of gun infringements.

The only laws that the state could point to that are within the time period are slave laws, carry with intent, and storage of gunpowder. The safe storage laws for gunpowder are more in line with today’s firecodes which limit storing flammable fluids within city limits or within buildings. I.e. when I installed propane tanks we had to place them so that they would not leak into the house if they leaked. Fire code, not weapons code.

192 is the start of the second document.

192-316 are post founding and the list ends in 1933.

It appears that all of these references come from the Duke Center for Firearms Law. They were formed post Heller as an anti-2A organization when the gun grabbers realized that means-end balancing was going to fail at some point, as proven by Bruen.

The next part of the document is claims of “But we aren’t the only ones infringing! So you should let us continue to infringe!”

In New York State Rifle and Pistol Association, Inc. v. Bruen, the Supreme Court adopted a new standard “rooted in the Second Amendment’s text, as informed by history,” 142 S. Ct. 2111, 2127 (2022), but reaffirmed that the Second Amendment right is “not unlimited,” id. at 2128 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)), and does not impose a “regulatory straightjacket” on government attempts to address gun violence, id. at 2133. The Second Amendment does not protect an unfettered “right to keep and carry any weapon whatsoever.” Id. at 2128 (citation omitted). Rather, the Second Amendment protects only those “weapons ‘in common use’ today for self-defense.” Id. at 2134 (citation omitted).

Quoting from Bruen the actual quote is “To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” The CA AG quoted two words out of 19. Those two words are followed immediately by “nor a regulatory blank check”. In other words, the AG is hoping that nobody looks at the actual cited work because when you pull quote such small sections of text you can say anything.

Under Bruen, California’s LCM restrictions, set forth in California Penal Code section 32310 (“Section 32310”), comport with the Second Amendment at both the textual and historical stages of the analysis. Plaintiffs cannot show that the manufacture, importation, sale, or possession of LCMs is conduct covered by the “plain text” of the Second Amendment. Bruen, 142 S. Ct. at 2129. But even if they can satisfy their initial burden, the Attorney General has shown that Section 32310 is “consistent with the Nation’s historical tradition of firearm [and other weapons] regulation.” Id. At 2130. Recently, two federal district courts have held that Second Amendment challenges to LCM restrictions are unlikely to succeed on the merits, based on substantially similar arguments, evidence, and historical record presented here. See Or. Firearms Fed’n, Inc. v. Brown (Oregon Firearms), __ F. Supp. 3d __, No. 2:22-cv-01815-IM, 2022 WL 17454829, at *6–14 (D. Or. Dec. 6, 2022) (denying motion for temporary restraining order), notice of appeal filed, No. 22-36011 (9th Cir. Dec. 7, 2022); Ocean State Tactical, LLC v. State of Rhode Island (Ocean State), No. 22-CV-246 JJM-PAS, 2022 WL 17721175, at *5–16 (D.R.I. Dec. 14, 2022) (denying motion for preliminary injunction). On a similar record here, this Court should uphold Section 32310 under the Second Amendment.

This is another intentional misstatement of Bruen. The plaintiffs (good guys) do not have to show that magazines are covered under the Second Amendment, the State has to show that they are not. Shifting the burden of proof is part of this game that is played.

In citing cases where other district courts declined to issue TROs, the AG fails to mention all of the cases where TROs and preliminary injunctions have been granted. Of course it is a pick and choose document, but it is highly unlikely that Judge Benitez will be snookered by this wall of text.

The AG’s argument is that the plaintiffs have not shown that magazines holding more than 10 rounds of ammunition are necessary to the use of firearms for self-defense.

“Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense” is how the AG puts it. There is no requirement nor suggestion in Heller nor Bruen that an arm needs to be “necessary” for use in “self-defense”. The Supreme Court has stated that “self-defense” is a core right of the Second Amendment, not the only core right.

The requirement is only that an arm “in common use” to be a protected arm. Caetano sets the upper boundary of “common” at 200,000.

The AG argues that the plaintiffs haven’t provided expert opinion on the meaning of the word “Arms”. They don’t have too. The Supreme Court did that in Heller.

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[w]eapons of offence, or armour of defence.” Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, in First Laws of the State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (3d ed. 1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

From this we see that the Supreme Court has indeed provided the “expert opinion” needed for this case.

This case is going to center on what the government can pull out of the scope of the Second Amendment. The same stupid of when people claim that since “bullets aren’t guns, so the Second Amendment doesn’t cover them. Let’s ban ammunition!”

The AG’s argument is that magazines are not in common use for self-defense. This is not the actual requirement. It is in common use. FULL STOP. The smoke detector in my bedroom hasn’t gone off in years. It is in use. I’ve never had to use any of my fire extinguishers. They are in use protecting my home. The fire insurance I have on my house hasn’t been needed, it is still in use protecting my home.

The gun on my hip is in use. Regardless of whether I ever draw it in need.

The state is attempting to set the standard for “common use” to be “shot’s fired in a self defense situation.”

As the Fourth Circuit held, LCMs are not protected by the Second Amendment because they are “like” “M-16 rifles,” “weapons that are most useful in military service,” and thus are “beyond the Second Amendment’s reach.” Kolbe v. Hogan, 849 F.3d 114, 121 (4th Cir. 2017) (en banc)

Kolbe v. Hogan is the case that the Supreme court said couldn’t be used because the decisions was made based on means-end and not text, history, and tradition.

You have to shake your head when the state of California is arguing that magazines that hold more than 10 rounds are not protected by the second amendment because they are like M-16 rifles. Note that Miller said that the Second Amendment didn’t cover Short Barrelled Shotguns because nobody told them that they were useful in military service. The quote above runs counter to Miller.

They continue the argument with “high capacity firearms” were not part of a militiaman’s loadout during the founding. Look to the quote from Heller above. High capacity computers are covered by the First and to claim otherwise is frivolous.

LCMs represent the “kind of dramatic technological change envisioned by the Bruen Court,” requiring a more nuanced approach when evaluating the constitutionality of laws regulating them. Oregon Firearms, 2022 WL 17454829, at *12. Firearms capable of firing more than 10 rounds repeatedly may have existed before and during the founding, but they were “experimental, designed for military use, rare, defective, or some combination of these features.” Id.16 LCMs and multi-shot weapons were “not common in 1791,” Friedman v. City of Highland Park, Ill., 784 F.3d 406, 410 (7th Cir. 2015), and the few multi-shot weapons that did exist were materially different from LCMs that feed ammunition into a semiautomatic firearm, contributing to a much higher effective rate of fire, see Def.’s Suppl. Br. at 28–30; Decl. of Robert Spitzer ¶¶ 18–33, Dkt. 118-9. Professor Kevin Sweeney has explained in Oregon Firearms that “repeaters had occasionally appeared on the scene” during the founding era, but they were not widely adopted at the time. Echeverria Decl., Ex. 4 ¶ 6

The test is “in common use today”. Not “in common use during the founding”. One of the interesting things that keeps happening in the brief is that the AG keeps referring to cases in progress in support of their position. Regardless, the wrong argument is being made, again.

There is an entire section in the brief to “address the unprecedented social problem of mass shootings”.

Wow, the clickbait in this section title got me “California’s Restrictions on Large-Capacity Magazines Are Consistent with Historical Laws Regulating Other Dangerous Weapons”. You would expect to see something about how come magazines are not covered by the Second Amendment because they are extraordinarily dangerous. Instead the section is the state admonishing the court to uses a broad definition of analogous laws applying to the Second Amendment.

Supplemental Briefing of the Defendants (Bad Guys) in Duncan v. Bonta

Here are the survey’s of relevant statutes
https://www.courtlistener.com/docket/6082773/139/1/duncan-v-becerra/
https://www.courtlistener.com/docket/6082773/139/2/duncan-v-becerra/