Federal judge again strikes down California law banning gun magazines of more than 10 rounds

MicroWave@lemmy.world to News@lemmy.world – 497 points – Federal judge again strikes down California law banning gun magazines of more than 10 rounds
apnews.com

California cannot ban gun owners from having detachable magazines that hold more than 10 rounds, a federal judge ruled Friday.

The decision from U.S. District Judge Roger Benitez won’t take effect immediately. California Attorney General Rob Bonta, a Democrat, has already filed a notice to appeal the ruling. The ban is likely to remain in effect while the case is still pending.

This is the second time Benitez has struck down California’s law banning certain types of magazines. The first time he struck it down — way back in 2017 — an appeals court ended up reversing his decision.

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Correct, given it's a constitutional right.

You mean REGULATING guns or gun magazines violates the well REGULATED militia of the constitution? Are the caps enough for you or do I need to spell it out?

"Well regulated" in the context of the constitution clearly meant well-trained/mobilized/deployed, in an efficient and orderly manner, and should be adequately capable. This is clear if you look at it from an unbiased linguistic standpoint, and look at the usage of the phrase around the time. Words don't constantly have the same exact meaning that we're primarily used to, they're a spectrum of different definitions that form, morph, and wane over time.

Plus the first/second clause in the sentence is clearly just a justification for the other 2 clauses, it's not a directive or even the subject. That alone would make the "well regulated" part meaningless for anything other than explaining why the constitution is in place in the first place. It doesn't give orders to "regulate" militias, or even that militias are the only things which should have access to guns in the first place.

The point of arguing against current treatment of guns isn't to argue what the syntax or basic meaning of the amendment was, no that's clear if you actually know what you're talking about (and you can find plenty of actual linguists breaking it down for you), it's to argue to what extent the amendment's directive (disallowing infringement on the people's right to bear arms) applies, or especially if the amendment is even beneficial or if it's harmful to a modern America and should be amended.

Then there is also the other issue that the other drafted forms of the amendment don't even include that clause, indicating more clearly the main point, that they didn't want the government to be able to restrict citizens' right to bear arms, after the episode they just had with the British government trying to limit arms to prevent an armed resistance in favor of colonial independence - said conflict having been kicked off specifically by an attempt to seize arms.

You can think one way or the other about how the state should treat guns, but people have this inclination to try to rewrite history about what it says and why. It's pretty clear if you take the blinders off, regardless of what you think about the issue.

Fine argument. Please also remember that militia in the context of the 2A references what is now the national guard.

No, it really doesn't. Under Federal Law 10 U.S. Code § 246 - Militia: composition and classes:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

If you're an able-bodied male between the ages of 17 and 45, a citizen or have declared an intention to become a citizen of the US, you're part of the militia.

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The National Guard is a component of the United States Army. A militia is a civilian force and would never be deployed to fight in other countries outside of wartime.

Please also remember that militia in the context of the 2A references what is now the national guard.

Lol, I love how people like you just say things and assume they are true.

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Also clear is that "bearing arms" was strictly a military connotation.

But hey since you're ignoring history and rewriting to serve your ammo sexuality, might as well rewrite all of it.

Also clear is that “bearing arms” was strictly a military connotation.

Was it? Duke's analysis of the history seems to disagree with you and your baseless claim. Interestingly enough, this is in-line with the opinion in this exact recent ruling.

But hey since you’re ignoring history and rewriting to serve your ammo sexuality, might as well rewrite all of it.

You seem to be the one rewriting history, friend.

That said... lol. That you can't discuss a thing you dislike without seeking to disparage others - e.g. ammo sexual - highlights the worth of your contributions. Why don't you try an actual argument, next time?

Since you like reading law review articles start here, and I've copied some excerpts to save you some trouble.

https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1206&context=jcred

In [Professor Eugene] Volokh's argument [for a broad individual right], the operative right in the Second Amendment is "the right of the people to keep and bear arms" and the justification of the right is to provide for a militia, "being necessary to the security of a free state." A facial construction of these clauses would be that a right should be no broader than its justification; thus, individuals have a right to bear arms only to the extent that it is related to a militia or defense of a state. Or, as Volokh sets forth the issue, "[s]ome argue that justification clause should be read as a condition on the operative clause: The right to keep and bear arms is protected only when it contributes to a well-regulated militia or only when the well-regulated militia is necessary to the security of a free State." Volokh's response to the question flows from his review of state constitutional provisions. Although rarely occurring in the federal Constitution, state constitutions often contain justification clauses. Volokh explains that there need be no exact fit between the right and the justification: "one should expect the possibility of a mismatch between justification clause and operative clauses: The means chosen to serve the end will often be somewhat broader or narrower than the end itself. But it's the means that are being made into law." In Volokh's words, the justification clause does not "trump the meaning of the operative clause...." Thus, there may be no law to "deprive people the right to keep and bear arms, even if their keeping and bearing arms in a particular instanne doesn't further the Amendment's purposes." Volokh has made a convincing case that the breadth of a right may exceed its justification. It is less convincing that this premise compels the conclusion he asserts. The questionable aspect of his analysis is the breakdown of the Amendment into operative and justification clauses. It is clear that the "right of the people to keep and bear arms" is justified by the need for "security of a free state"; but to which clause does the militia belong? Only if the militia belongs to the justification clause may the right of the people be broader than participation in a militia or acting for the preservation of a state. If the militia belongs to the operative clause, Volokh's conclusion does not follow. Under this reading, the individual right to own guns would be constrained by participation in a militia because the limitation occurs in the operative clause. The broad rights advocates would then be reduced to arguing the logical absurdity that the individual right is broader than itself. Should the reference to the militia be construed as belonging to the justification or the operation of the Second Amendment? It is more likely that it belongs to the operative clause. The militia has no independent justification or reason to exist. Its function is strictly in subservience to larger ends; in this context, it exists to protect the security of the state. It fulfills this function by operating as the tool through which armed individuals come to the aid of the state. The operative right should thus be read as a conjunction of the right to bear clause and the militia clause: the right belongs to individuals in a militia. Under Volokh's analysis, it is possible that individuals in a militia have rights broader than relate to the security of a state. It is not possible, however, that there is any constitutionally protected individual right to bear arms outside of a militia. To read the Amendment in this manner would require not that the right is broader than the justification but that the right is broader than itself. Thus, Volokh's argument collapses for failure to identify the militia as belonging to the operative clause of the Amendment.

Wow, you don't often see an argument from a scholar as widely respected as Volohk--with whom you must be familiar as a fan of law review articles (he wrote the book on how to write them)--be absolutely torn apart with irrefutable logic.

.....

It is also undisputed that the Bill of Rights created no new rights. That there was no right of individual possession of arms for private purposes before this document voids any pretension that such a right existed after the document. The Bill of Rights was meaningful because it guaranteed that Protestants would not be treated unequally compared to Catholics in terms of possession of arms. It also transferred control of weapons law to the Parliament so that the English militia would never again be the tool of royal machinations. But the document also codified the central features of possession of arms in the country: arms were primarily important as tools of collective safety, and they were within reach of the law to regulate. The subsequent history of England shows beyond peradventure that there was no private right to firearms. The American colonies put great emphasis on the militia. This was primarily a function of the strong historic aversion against standing armies. The aversion intensified during British occupation of the colonies. But in again the historical record is devoid of any suggestion of an individual right to bear arms outside a military function. This is shown in the original state constitutions, not one of which unambiguously recognizes such an individual right.

.....

The last refuge of the gun proponent pertains to the issue of self-defense. This is certainly a major perceived reason for the private ownership of guns. In a 1979 survey, when asked why they possessed a gun, 20% of all gun owners and 40% of handgun owners cited self-defense as the reason. It is unfortunate that these people may be operating under a delusion, having subjected themselves and their families to great danger in the guise of self-protection. One study examined the number of times a gun is used in self-defense against the risk of having a gun in the home in King County, Washington. The risks measured by the authors were the cumulation of "death from unintentional gunshot wounds, homicide during domestic quarrels, and the ready availability of an immediate, highly lethal means of suicide." The authors conclude that for every instance of a death resulting from defensive use of a gun, there were 43 gun deaths resulting from domestic fights, accidents, or suicides.

One researcher, commenting on the study, noted that "the justifiable use of firearms for self-protection is a rare occurrence and carries with it much greater associated risks of the death of someone other than the perpetrator. The same approximate result obtains on a nationwide scale. In 1992, there were 308 justifiable firearm homicides in self-defensive compared to 15,377 total firearm homicides. Surely, no public policy can be sustained when the negative consequences occur 50 times more often than the positive consequences.

...

There was never a single mention at the Constitutional convention about an individual right to bear arms.

during the ratification hearings on the Bill of Rights in Congress, a draft of the Second Amendment was originally introduced which set forth an individual right to bear arms (that is, which did not attach a qualifying militia clause to the clause setting forth the right to bear arms). However, this version, which would clearly have set forth an individual right to bear arms was soundly defeated, and anew version, written by Madison, and which qualified the right to bear arms to its use in the service of a militia, was subsequently adopted and incorporated in to the Bill of Rights.

Wow we could have had it written right in there, but that version was soundly defeated because everyone there agreed it would be idiotic to allow any random person to buy whatever guns they want.

....

The U.S. Supreme Court in Miller stated that "The Second Amendment guarantees no rights to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well-regulated militia." There are two possible interpretation of this language. The first is that the Second Amendment gives every citizen a right to possess a weapon which might conceivable be used for military purposes. The problem with this interpretation is twofold: first, it leads to the remarkable conclusion that citizens have a right to possess such military weapons as machine-guns; bazookas, and perhaps even suitcase-sized nuclear weapons, but no right to carry a weapon such as a Saturday night special, which no branch of the military has ever issued to its troops. (Even the gun lobby has never suggested that there is no right under the Second Amendment to carry small handguns such as Saturday night specials). The second problem with this interpretation is that every circuit court since Miller, without exception, has rejected this interpretation of Miler.

Hey, until we got some illegitimate Supreme Court justices who were willing to pedal the same lies that you got tricked by. Now anyone can have any gun anyone wants and all gun laws are unconstitutional because "reasons."

Ah - I see you've dropped an entire article in lieu of any actual argument. If we're going by average liberal quantity of articles dropped, regardless of content strategy, you're still losing. If we're going by more mature content matters strategy, you've woefully failed and approach a gish gallop. There's some irony in that your article was titled THE INCONVENIENT MILITIA CLAUSE OF THE SECOND AMENDMENT: WHY THE SUPREME COURT DECLINES TO RESOLVE THE DEBATE OVER THE RIGHT TO BEAR ARMS - it seems not to have aged well.

Out of an abundance of undeserved good-will, I'll overlook that you've yet to address either source provided and - in lieu of actually making an argument - you drop an article you seem to not have actually read and understood. With any source, one must consider what it is and what it says.

For example, I have provided a linguistic analysis of what the framers intended regarding the right to bear arms which references the works of the framers themselves, culture of the time, and events of the time to answer myriad questions from an objective point of view - clarifying the right to bear arms, defining what arms are protected, elaborating on the validity of licensing on registration, and arriving at its conclusion from the information shared.

You, however, have shared a persuasive essay which makes no attempt to hide its bias. Indeed, its opening quote makes its interests quite clear. Its entire introduction repeatedly highlights - rather than actual definitions, historical references, etc. - attempts to disambiguate as related to what the authors believe should have happened. It is, at best, a lengthy "rah but the conservatives" mud-slinging display. The best to be said is there exists a reference to previous legal understanding - one, we should all hope, is expected to clarify over time rather than stay stagnant with poor understanding. Heck, WLU highlights in an analysis of the concept of settled law that A legal answer that is emphatically correct, and therefore settled, for decades or even centuries might eventually lose that status in light of sociocultural progress, as the debate about the death penalty illustrates.

As your article finally delves into its analyses, it fundamentally pins its interpretation of the American right to bear arms on English history, on a comparison of the legislated acts of the colonies and its own interpretation of them, on a commentary about militias rather than arms, etc. It seems to reference everything except the actual direct commentary on the matter, the culture of the time, etc... and it does so in only the most tangential ways even there.

To summarize, your persuasive essay starts with its flawed conclusion, seeks to shore it up with anything at-hand, specifically neglects the things that directly contradict it (no worries, my first source covers that), and hopes you weren't paying enough attention to notice. There's a bit more irony in that this is exactly how you've participated in this discussion.

But hey, once you've gone back and done your part, we can continue this discussion.

Wow, you don’t often see an argument from a scholar as widely respected as Volohk–with whom you must be familiar as a fan of law review articles (he wrote the book on how to write them)–be absolutely torn apart with irrefutable logic.

I'm not sure you actually read what you quoted. In zero ways was he torn apart with irrefutable logic - that paragraph, at best, says - paraphrased - "if we're right, he's wrong, and we're pretty sure we're right".

Fortunately, this entire notion was already addressed by the Judge issuing the ruling, a thing I'm sure you've read.

Wow we could have had it written right in there, but that version was soundly defeated because everyone there agreed it would be idiotic to allow any random person to buy whatever guns they want.

Did they? I'm not sure how anything in those paragraphs supports such an assertion, even aside from how they're once more already corrected by the other source I'd provided.

You... aren't good at this reading comprehension thing, are you?

Hey, until we got some illegitimate Supreme Court justices who were willing to pedal the same lies that you got tricked by. Now anyone can have any gun anyone wants and all gun laws are unconstitutional because “reasons.”

Ahh, I see - it's all a conspiracy theory to you. Nifty.

You are ridiculous. Try responding to any of the arguments I quoted and put in bold.

It was you that threw up a linked and said "Duke says," no context, no quotes, no arguments.

My article contains undisputed facts.

Fact: there was no individual right before the bill of rights, in any state constitution, or in any system of English law, so how could there be one after the Bill of Rights?

Fact: for a few decades before the second amendment was written, there is no surviving text in which the usage of "bear arms" clearly refers to an individual right, and in 95% of the usage it refers expressly to the context of regimented military.

Fact: the self defense and home defense argument are utterly delusional in light of the actual statistics that offensive and suicide uses to defensive usage is 50 to 1.

Fact: the placement of the phrase "well regulated military" evidence a clear original intent for the second amendment to exist to serve the purpose of protecting state government, a purpose that does not suggest an individual right.

You are trying to revise actual history as this and the weight of all law review articles on the subject demonstrate.

You find me one instance of the phrase "bear arms" prior to 1776 suggesting clearly an individual right, and you might have a leg to stand on. You cannot.

You are ridiculous. Try responding to any of the arguments I quoted and put in bold.

We're still waiting for your responses to the arguments raised. You don't get to ignore the arguments made and then complain waaah respond to the arguments - out of an abundance of good will, I've addressed your source itself and highlighted its myriad flaws.

It was you that threw up a linked and said “Duke says,” no context, no quotes, no arguments.

I see you haven't bothered to glance it over. That, at least, confirms the suspicions regarding your failure to do so.

My article contains undisputed facts.

See the previous comment regarding what these actually say. You seem to have just skipped right over that - perhaps continuing your trend of either not reading or failing to comprehend what one has read.

Your source does not seem to support your position in any way.

You are trying to revise actual history as this and the weight of all law review articles on the subject demonstrate.

You find my one instance of the “phrase bear arms” prior to 1776 suggesting clearly an individual right, and you might have a leg to stand on. You cannot.

Both of which were quite clearly addressed by the previous comment - the one you seem to have not actually read.

And here's another article: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1208&context=jcl

The comprehensive nature of [digital] archives can give scholars a high degree of certainty that keyword searches accurately reflect common usage since they contain most of the surviving printed material from the colonies and early Republic. The Early American Imprints series contains over 15,500 documents from 1763 to 1791 alone, 273 of which use the phrase "bear arms."" If we discard the many reprints of the Bill of Rights, all quotations of the text of the Second Amendment in congressional debate, irrele- vant foreign news, reprints of the Declaration of Independence, and all repeated or similar articles, 111 hits remain, of which only two do not use the phrase to connote a military meaning.' Using the same method of sorting results from the 132 papers published from 1763 to 1791, the Early American Newspapers database returns 115 relevant hits, with all but five using a military construction of "bear arms." A search of the exact phrase "bear arms" in the Library of Congress da- tabase (which includes Letters of Delegates to Congress,Journals of the Continental Congress, Elliot's Debates, and the House and Senate Journals of the First Congress) between 1775 and 1791 returns forty-one relevant hits, of which only four do not use the phrase "bear arms" in an ex-plicitly collective or military context. The sources prove that Americans consistently employed "bear arms" in a military sense, both in times of peace and in times of war, showing that the overwhelming use of "bear arms" had a military meaning. [W]hile not every sin- gle source uncovered from these digital archives uses "bear arms" in an explicitly military sense, the handful that do not are merely ambiguous; at most, they tend to show that "bear arms," on rare occasion, was paired with additional language to mean, idiosyncratically, "carry guns."

The historical record of usage clearly shows that, before 1791, "bear arms" was used in its idiomatic sense to denote military service and the like, and that usage to denote non-military conduct was rare and idiosyncratic.

Bud the reason I didn't reply with sources at first is honestly because you are a joke to me. Linking a law review article to me, you don't know shit about law review. The scholarship on this is clear and overwhelming.

Bud the reason I didn’t reply with sources at first is honestly because you are a joke to me. Linking a law review article to me, you don’t know shit about law review. The scholarship on this is clear and overwhelming.

Right - it has nothing to do with your having negligible awareness of the issue, getting caught blatantly shitposting, and scrambling to try and shore up your position with such scholarship as to apparently have not even read what you've posted.

Totally.

Nah, you're a joke. I've already read all the seminal articles and half of the bullshit ones.

Now the shoe is on the other foot. You got caught shit posting, having only a superficial awareness of the subject matter.

Nah, you’re a joke. I’ve already read all the seminal articles and half of the bullshit ones.

Now the shoe is on the other foot. You got caught shit posting, having only a superficial awareness of the subject matter.

Ah, I see - you're left with personal insult and a half-assed appeal to authority in lieu of any actual arguments.

I begin to wonder if you're aware of the irony of calling someone a joke given the extent to which you're just shitposting.

The author of that law review article also rewrote history.

Ah, I see - because it disagree with it, we're supposed to trust your assertion they rewrote history despite their rich citations and arguments and your absolute lack thereof.

That is, unfortunately, exactly the kind of quality comment I've come to expect from the thoughtless anti-firearm brigade.

You can trust my assertions, yes. For one, I am telling the truth. And two, I have no reason to lie.

You can trust my assertions, yes. For one, I am telling the truth. And two, I have no reason to lie.

You'll understand how I don't give credence to the word of a rando who makes grand claims, bold - baseless, even - assertions, and demonstrates an utter lack of rationality.

“Well regulated” in the context of the constitution clearly meant "well-trained/mobilized/deployed, in an efficient and orderly manner, and should be adequately capable.

So not your average Joe who just wants to own a gun then?

ALL able-bodied men were legally obligated to muster with the local militia when called to do so, and were also obligated to provide their own arms.

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Magazine size?

Magazines are considered arms, within the meaning of the Second Amendment, therefore protected especially from arbitrary and capricious restrictions.

Doesn't the 2 amendment talk about the right to bear arms, and doesn't say we can't restrict weapons?

As long as you are allowed to have a flintlock pistol, your constitution is not violated. So we can ban every other gun in existence.

As long as you are allowed to have a flintlock pistol, your constitution is not violated

'As long as you have a quill and paper, your right to free speech is not violated'

Your argument is not how the Bill of Rights works. I for one am happy about that, I enjoy having free speech on the internet, and presumably you do too.

Not really - It doesn't read the right to bear flintlock pistols. It reads the right to bear arms.

Nah they aren't. Read history instead of trying to rewrite it to fit your anmosexual narrative.

All laws fail scrutiny if they are arbitrary and capricious.

It's ironic that your best argument is to suggest one read history - with mindless disparaging insult - in response to actual history and analysis, with citations.

Narrative, indeed.

Lol, tell me you don't understand the constitution without saying you're a fucking idiot. Oh wait.

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