Second Amendment

California's 'Assault Weapon' Ban Unconstitutional, Says Federal Judge

Victory for the Second Amendment in Miller v. Bonta. Will the Biden administration pay attention?

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California's 32-year-old ban on a certain class of semi-automatic rifles colloquially known as "assault weapons" was declared unconstitutional yesterday in the case of Miller v. Bonta. At the same time, the Biden administration wants to impose similar restrictions federally.

The decision does not instantly nullify the enforcement of the law. "Because this case involves serious questions going to the merits, a temporary stay is in the public interest," concludes the decision, which was penned by U.S. District Judge Roger T. Benitez for the Southern District of California. The injunction that would force California to stop enforcing its ban is therefore "stayed for 30 days during which time the Attorney General may appeal and seek a stay from the Court of Appeals."

The state's attorney general, Rob Bonta, has already announced his intention to appeal—and the 9th Circuit, which will consider that appeal, is not reliably supportive of the Second Amendment. But Benitez's reasoning remains for other jurists to draw on in other cases, especially if Biden continues his interest in banning certain kinds of rifles.

In the first paragraph of his 94-page opinion, Judge Benitez lays out the heart of his reasoning colloquially: "the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller…and United States v Miller….Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional."

The judge knows that Heller "does not guarantee a right to keep and carry 'any weapon whatsoever in any manner whatsoever and for whatever purpose.'" But he also knows that "lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts. There is no evidence that the Supreme Court intended that language to be a license to avoid its common sense holding in average contexts." With its combination of personal defense and civic militia uses, Judge Benitez argues, the AR-15 is the quintessential weapon whose ownership the Second Amendment is meant to protect.

"The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home," Judge Benitez writes. "Under Heller, that is all that is needed. Using the easy to understand Heller test, it is obvious that the California assault weapon ban is unconstitutional."

The judge acknowledges that the 9th Circuit that covers his court has not been prone to apply Heller's ruling in this common-sense way. Instead it has adopted a "two-step" process to think about the Second Amendment, not nearly as simple and obvious. "The first step asks, 'whether the regulation is one of the presumptively lawful regulatory measures identified in Heller, or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.'"

Benitez thinks that the law in question, the Assault Weapon Control Act (AWCA) of 1989, cannot pass that first step. "A ban on modern rifles [his preferred term for what the state calls 'assault weapons'] has no historical pedigree….In fact, prior to California's 1989 ban, so-called assault weapons were lawfully manufactured, acquired, and possessed throughout the United States."

Once it is established a law does impact a Second Amendment right, as Judge Benitez insists the AWCA does, then the 9th Circuit's complicated second step comes into play: deciding what level of "scrutiny" to apply to the law. Benitez insists the law hits the very core of the right—commonly owned weapons for self-defense in the home—in the most severe way: a total ban on a type of weapon. Thus, he thinks it should fail under any level of scrutiny, no matter how tough or lenient.

Still, he considers the state's assertion that "intermediate scrutiny" should apply in this case. This, he notes, requires a reasonable "fit" between the law and the state's public safety objective in passing the law. And to Judge Benitez, it is "clear that AWCA's assault weapons ban-by-prohibited-features was not designed to address a real harm, and even if it did, does not alleviate the harm in a material way."

The state argued that since not all guns or rifles are banned under AWCA, the law isn't a real burden on Second Amendment rights. Judge Benitez disagrees. "The problem is that the alternatives-remain argument has no limiting principle and would justify incremental firearm bans until there is only a single-shot derringer remaining for lawful self-defense. The same argument—that a handgun ban might be justified because government-approved alternatives are available—was rejected in Heller and it is rejected here."

Judge Benitez also explains that the historical record does not provide any strong proof that any substantial public benefit has accrued from AWCA. "In 1989, California's Legislature predicted an assault weapons ban would eliminate or reduce mass shootings. It has not turned out that way." Indeed, "even the State's evidence demonstrates that mass shootings with assault weapons continue to occur at the same average rate as before the ban." He adds that a now-defunct national assault weapon ban did not appear to work either.

The decision provides many anecdotes to support the idea that the rifles California bans are often used in legitimate self-defense, and that some of the particular aspects of rifles that get them banned are especially useful for home self-defense.

The AWCA's prohibition is not limited to AR-15s. The law bans a rifle "if it is one of three principal types. The first type is a semiautomatic centerfire rifle that does not have a fixed magazine but has one of the following prohibiting features: a pistol grip that protrudes conspicuously beneath the action of the rifle, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip. The second type is a semiautomatic centerfire rifle that has a fixed magazine able to hold more than 10 rounds. The third type is a semiautomatic centerfire rifle that has an overall length of less than 30 inches." The AWCA "imposes a felony criminal penalty for anyone who manufactures, distributes, imports, keeps for sale, offers for sale, or lends an 'assault weapon.' The prescribed prison sentences for violations of these malum prohibitum crimes are four, six, or eight years." Just possessing such weapons could be, depending on circumstances, either a misdemeanor or a felony.

These weapons "are not bazookas, howitzers, or machineguns," Judge Benitez writes. "Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed 'assault weapons' are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes." And as such, California's laws should not withstand this constitutional challenge from James Miller, other private citizens, and a squad of gun rights groups, including the Second Amendment Foundation and the Firearms Policy Coalition.

AWCA came from an essentially prehistoric time in Second Amendment jurisprudence, before Heller established that the Constitution protected the right to own commonly used weapons of self-defense, at least in the home. It can no longer stand in this new era, even if various pre-Heller challenges to AWCA failed for reasons no longer applicable after Heller. The decision provides a useful summation of some previous court decisions that run counter to Benitez's reasoning here, with quick explanations about why he thinks they were wrongly decided, or why the facts at issue differ enough from the specifics of the AWCA that their reasoning isn't operative in this case.

Judge Benitez also shows at length that the state's attempts to prove either that the banned weapons are a disproportionate crime threat or are not necessary for home self-defense fall apart under any sort of scrutiny, including a very poorly argued claim that the average defensive use of guns only requires 2.2 shots, an argument whose poor research methods the judge dismantles handily.

The judge also notes that "killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle….A Californian is three times more likely to be murdered by an attacker's bare hands, fists, or feet, than by his rifle."

That's any kind of rifle, not just the banned subcategory. These patterns of minimal murder danger from rifles are also seen nationally; they are not a result of the state's ban on some rifles, a ban that will now need a reprieve from the 9th Circuit Court of Appeals to survive.

NEXT: Some Food Regulators Fret Needlessly Over Eating Bugs

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  1. But what about that thing in the Constitution that guarantees the government will prevent me from feeling sad? Cuz I feel sad every time I see a scary gun.

    1. Sadness is infrastructure.

      1. Fear is infrastructure.

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    2. I also feel sad when I see a scary gun and can’t afford to buy it.

      1. I haven’t met a (legal) gun I can’t afford yet. Maybe get off the government covid relief and get an actual job.

        1. Spoken like a man who dates well within his price range.

    3. A disturbing trend has persisted as states report data on illness, hospitalizations, and deaths due to COVID-19; Black, Indigenous, and/or People of Color {BIPOC} more detail …………MORE DETAIL.

    4. Although this is a great decision, it will be appealed to the 9th Circuit, and regardless of any three judge panel ruling, it will be struck down. If the three judge panel upholds the ruling it will be heard en banc- and the 9th will strike it down. As 9th Circuit Judge Lawrence Van Dyke stated in his “fiery” dissent in Mai v United States: “To the rational observer, it is apparent that our court just doesn’t like the Second Amendment very much. We always uphold restrictions on the Second Amendment right to keep and bear arms. Show me a burden—any burden—on Second Amendment rights, and this court will find a way to uphold it. Even when our panels have struck down laws that violate the Second Amendment, our court rushes in en banc to reverse course.”

  2. The notion that 2A was meant to give an individual a right to have a gun is flat out historical fiction that was not given any credence until about 50 years ago. The 2A was meant to protect the state militias.

    1. “The notion that 2A was meant to give an individual a right to have a gun is flat out historical fiction that was not given any credence until about 50 years ago. The 2A was meant to protect the state militias.”

      And, since the militia is made up of the citizens, it protects the rights of individuals to keep and bear arms.

    2. You’re as usual a fucking left wing liar and bullshit artist. You’re wrong of course, go fuck yourself with an AR-15.

      1. You’re far too kind. I was thinking “chainsaw”.

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    3. Exactly.

      We in the reality-based community know that the Constitution quite explicitly spells out the right to access abortion care — but not the right to own a gun.

      #LivingDocument

      1. The 9th Amendment, brah.

    4. Learn to read you stupid cunt.

      “the right of the people to keep and bear Arms shall not be infringed.”

      Theres a comma after the militia part, and before that part, for a reason. Our founders understood punctuation and grammar. Something your public school education apparently failed to instill in you.

      1. It’s “arms” (plural).

        If you don’t have a pair hanging on your wall right now, you’ve forsaken the founders.

        https://www.youtube.com/watch?v=sRGp0S7qZLw

    5. “Shall not be infringed”
      Fuck off and die, MG.

      1. Are you a First Amendment absolutist, too, you bigoted cligner?

        1. If you’re asking such a question, you’ve proven yourself (once again) to being a fucking lefty ignoramus, asshole-bigot. Congrats!
          Fuck off and die.

        2. Knew it! Butthurt, woke, frail, witless leftists won’t fail to whine to the amusement of the rest of us. Reality will hit back much harder than this. Hope you will still be around.

          1. Powerless, vanquished, whining right-wingers are among my favorite culture war casualties. After decades of getting stomped by their betters in America’s marketplace of ideas, and watching the liberal-libertarian mainstream shape our national progress against conservatives’ wishes and efforts, they mutter bitterly and inconsequentially as they await replacement.

            Your obsequious compliance with the rules established by your betters is greatly appreciated, clingers. You get to whine about it as much as you like — but you will continue to comply.

            1. “Powerless, vanquished, whining right-wingers are among my favorite culture war casualties…”

              This “I won because I say so” pile of lefty shit was called on his lies immediately on his first response.
              Hihn and Mary Stack come to mind for the same reason: This fucking loser has only his worthless bluster a ammunition.
              Fuck off and die, asshole bigot.

    6. Even if your claim were true (it isn’t):

      1) The militia, from the Founding Era to the present day, has by statute consisted of at least every able-bodied male from ages 17 to 45.

      2) The Ninth Amendment would secure the Colonial/Founding-era right, listed in the English Bill of Rights (1689), that “subjects . . . may have arms for their defence suitable to their conditions”.

      3) The legislative history around the 14th Amendment makes it clear the persons involved in drafting, passage, and ratification thought it would secure the right to keep and bear arms against infringement by the states, whatever theory they may have held as to where that right was sourced.

      So, if you were right about the 2nd Amendment (which, again, you aren’t), these gun control laws would still be unconstitutional. An AR-15 is clearly a weapon suitable for a member of the militia.

      1. Some of the “it’s not an individual right” need to read some Joyce Lee Malcolm.

        https://www.hup.harvard.edu/catalog.php?isbn=9780674893078

        1. Thanks, I’ll check that out.

    7. You’re just objectively wrong here. The ‘militia’ was all able-bodied male citizens. They weren’t organized by the state. ‘Well-regulated’ meant, basically, competent. ie, capable of using their weapons. The expectation of the founders was that every adult male knew how to use a firearm and would do so in time of need.

      1. In good order. Ie weapons that worked and maintained.

      2. Are you trying to argue that women are not guaranteed a right to own guns?

        1. Given the number of wemon I have seen sweep a group I would say yes I am in favor of not giving wemon guns.
          (the score is 0 men 4 wemon)

    8. Except for your last sentence, “The 2A was meant to protect the state militias.”, you are 100% correct. The Second Amendment was not meant to GIVE an individual a right to have a gun. However, it was meant to GUARANTEE the right of an individual to have a gun. The idea that the Constitution gives or grants rights is wrong.

      1. Also, I’m curious as to what other right guaranteed to the people in the Constitution do you think only applies to the states?

    9. Scalia explained this historically. Charles II and James II tried to gut the militia in Protestant areas, which were opposing their latest religious suppression, by banning them from bearing arms. No arms, no militia, no opposition. From the Heller opinion: “Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies.”

      “These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” This right has long been understood to be the predecessor to our Second Amendment.”

      The happened in the century before the founding of the United States. “Recent history” to the Founding generation.

      1. ^^^ This, shows how comfortable we’ve become.

    10. Lol. Please ask for a refund for whatever community College you took history at.

    11. “The 2A was meant to protect the state militias.”

      The point is that individuals need to be armed at home so they can form militias without needing much in the way of additional training–and I don’t see anything in Federalist Paper No. 29 to say otherwise. I think you’re just making shit up.

      To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss . . . .

      It will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

      —-Federalist Paper No. 29

      https://avalon.law.yale.edu/18th_century/fed29.asp

      That was written by Alexander Hamilton, who was at Valley Forge with Washington when they were training farmers to become soldiers, was there when Washington defeated the Hessians at the Battle of Trenton, and who led one of two columns that forced Cornwallis to surrender at Yorktown. To suggest that he didn’t realize the Second Amendment was intended so that individuals would already be equipped and know how to use and service their weapons before it was necessary to rise up in revolution is preposterous and stupid.

      P.S.

      “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”

      —-Ninth Amendment

      Rights are the obligation to respect other people’s choices, and in addition to having a right to bear arms, I have a right to wear red socks on Wednesdays.

      1. “…Rights are the obligation to respect other people’s choices, and in addition to having a right to bear arms, I have a right to wear red socks on Wednesdays…”

        And to those who claim “X is not a Constitutional right!”, I’ll add the right to have a beer and a hotdog at a ballgame.

    12. I believe you are wrong about that.

      But it doesn’t matter what you or I believe. The SCOTUS has ruled in Heller that the 2nd Amendment does indeed protect an individual right.

      So bringing up this militia horseshit every time the subject is raised is about as relevant as what you ate for breakfast.

      1. Mitch,
        You are right to a point. The people’s right to bear arms has nothing to do with a militia.
        The TYPE of arms has everything to do with a militia. The original idea was for the people to augment the military. With that being said, the people have a RIGHT to own military grade weaponry.

        If you look at some of the older Cities and Towns in the US you will often see a “town square”. Some times you will even see cannon there as a monument. Originally the people of the town formed their own militia. They raised money and bought cannons. They would meet in the square and drill several times a year. In the event of a War (1812) those militia would go to the military and be used complete units.
        A severe Constitutionalist could make an argument that citizens should be able to own military grade weapons and that those types of weapons would be protected more by the 2nd Amendment that weapons used for hunting and sport.

        1. “With that being said, the people have a RIGHT to own military grade weaponry”

          100% correct, but not even most libertarians will try to defend this. Thats why this is yet another lost cause.

    13. “ The 2A was meant to protect the state militias.”

      That’s why all federal firearm legislation is unconstitutional.

    14. You seem to forget the Minutemen of Lexington and Concord.

      1. “The 2A was meant to protect the state militias.”

        On the night of April 18, 1775, British soldiers and marines embarked on ships in order to seize cannon and other arms from the militias of Lexington and Concord, in the then Massachusetts Bay Colony. The local militias were warned, and rallied to meet them the next day. At first, the British prevailed, but as militias from the surrounding towns, and ultimately states, arrived and joined the fray, the British were ultimately put to flight. That was the beginning of our Revolutionary War that gave us our independence.

        Directly involved in in the militia movement at that time were John Adams (and esp his cousin, Samual Adams, who had escaped Boston, and was with the militias by the time of that battle), as well as George Washington – our first two Presidents. The third President, Thomas Jefferson, with the help of Adams, justified the war in their Declaration of Independence. All were involved in the drafting of the Constitution, and ultimately the Bill of Rights. Moreover, the local militias were the foundation of Washington’s Continental Army. These Founding Fathers weren’t talking about state level militias, in the 2nd Amdt, but rather the types of militias that they were familiar with – the sort of informal town militias, composed of the citizenry, that turned out to face the British on April 19, 1775, and then formed the foundation of Washington’s army.

    15. The second amendment doesn’t presume to grant the right to self-defense at all, you stupid cunt. It acknowledges it as already existing, mentions one reason why it’s important, and forbids the government from infringing it. It doesn’t make the right contingent on participating in the militia.

      -jcr

      1. The founders were literal revolutionaries.

        In designing a new government, they recognized and protected the right of the people to, should it become necessary, revolt against government.

    16. The notion that it was a historical fiction that wasn’t given any credence is itself a historical fiction, ironically. That was fabricated about 50 years ago…

    17. Very good point! I mean, without the 2A, the government wouldn’t have any guns!

    18. The 2nd amendment ‘gives’ nothing. It restricts the government from infringing on a right.

      You want people to believe the lie that:
      “the right of the people” which the Supreme Court has ruled everywhere else in the Bill of Rights refers to INDIVIDUAL rights, means something completely different in the 2nd Amendment

      That is rank horseshit.

      And to prove the amendments in the Bill of Rights are not restriction on The People, but on Government, the document itself explains that in its preamble:

      THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

      Try your propaganda elsewhere.

    19. Since you are the one claiming historicity, let’s go with that. I can break down the 2nd Amendment for you.

      “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

      “A well regulated Militia”
      In the terms on 1789 or so, well-regulated meant ‘orderly’ and well put together. As in, ‘he had a well-regulated mind.’ Meaning he had above-average thinking ability. A well-regulated militia would be equipped and trained and actually be a professional army. Of ‘Regulars’. As in, professional soldiers. Not some bum with a gun you found on your way to town.

      “being necessary to the security of a free State”
      So, you have these professional soldiers now, and they are in the service of the state / i.e. government. To protect us from outside threats (mostly, hopefully). And they are well armed and trained. Because they are professionals, not volunteers from the hill country.

      “the right of the people to keep and bear Arms”
      The people. Individuals. Who may or may not have conflict with the government’s new professional soldiers. Keep in mind, from a historical perspective, that the guys writing this were fresh off a war for independence from a (at the time) major superpower. They were none too keen on subjugation.
      Keep and bear – you can have then in your house, and you can take them with you. Easy enough.
      Arms – firearms. Guns. Some could argue that individuals in the US should be able to maintain the same level of firepower as the US government does. I’m not one of them; I think tactical nukes are a bit much for your typical homeowner. I could get behind my neighbor Chad owning a tank, though. That would be cool.

      “shall not be infringed”
      Well? What’s the argument here? The language seems pretty clear.

      Or, here’s a nice summary:
      https://www.youtube.com/watch?v=P4zE0K22zH8

    20. Molon labe, coward.

    21. The 2A was meant to protect the state militias.

      Perhaps you should try reading the rest of the Constitution. The Compacts Clause specifically denies states from keeping troops which means the militia isn’t a state appendage, it’s the people of a “free state”. A “free state” being a state in which the people are free; free to do things like keep and bear arms. We know it doesn’t mean the state is free to do as the state government likes since the whole point of the Constitution was bind and define the powers of governments as it does in the Compacts Clause.

    22. The idea that the Second Amendment was NOT meant to prevent the State from keeping military grade small arms out of the hands of the citizenry is the new idea. It goes against the ideas expressed in the recorded debates on the Constitution, and is an outgrowth of the Progressive Left’s distrust of the Common Man they so often claim to champion.

      Lawrence Tribe – Harvard Constitutional Law scholar and gun control supporter – has said that the Second Amendment DOES protect an individual right.

      I do not own a gun myself- people as awkward as I am should not own guns or power saws – but the tendency of politicians of all stripes to weasel around those parts of the Constitution and Bill of Rights that they don’t like concerns me.

      You want to ban private ownership of some or all guns? Propose a Constitutional Amendment and work to get it passed. The Amendment process is what MAKES the Constitution a “Living Document”, and attempts to ignore its more inconvenient strictures merely make it a dead letter.

      Because governments that did not believe they had to obey their own laws have killed far more people than private citizens with guns.

    23. “The notion that 2A was meant to give an individual a right to have a gun is flat out historical fiction that was not given any credence until about 50 years ago. The 2A was meant to protect the state militias.”

      Let’s let those who wrote it put this sillyness to rest once and for all:

      “Americans need never fear their government because of the advantage of being armed, which the Americans possess over the people of almost every other nation.”
      ~ James Madison
      (1751-1836), Father of the Constitution for the USA, 4th US President

      “Who are the militia, if they be not the people of this country…? I ask, who are the militia? They consist of now of the whole people, except a few public officers.”
      ~ George Mason
      (1725-1792), drafted the Virgina Declaration of Rights, ally of James Madison and George Washington
      in the Virginia Convention on the ratification of the Constitution, June 16, 1788,

  3. What do you know? Turns out “infringed” is still in the dictionary.

    1. For now – – – – – –

    2. They changed what “shall not” means though, so it don’t matter.

  4. This is the same Judge Benitez whose ruling on magazine limitations led to the freedom week in California and the sales of thousands of standard capacity magazines to Californians.

    This 30 days stay will lead to a stay issued by the ninth circuit, which will then delay for at least a year having the en banc hearing.
    There is nothing stopping California from delaying this final hearing for years.
    Which ever way the ninth rules, there will certainly be an appeal to the Supreme Court.

    In the meantime judge Benitez should be added to the faces on mount Rushmore

    1. The 9th can add an additional delaying tactic and hold all action until the SC rules on the latest NY carry case, too, should they so desire. (And you know they do!)

    2. I read his decision on that magazine case. It was a masterful legal defense of the right to bear arms. Really one of the best I have ever read.

    3. But remember several years ago SCOTUS ordered the Ninth to “shit or get off the pot” in a Washington state case the Ninth had already delayed ruling on for more than a year.

    1. Lol. Fucking hilarious.

    2. I couldn’t figure out the purpose for that article.

      1. That’s because you’re not on the am email list.

        1. Jake really put the “auto” in “auto-da-fé” there.

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  6. “Because this case involves serious questions going to the merits, a temporary stay is in the public interest,” concludes the decision

    Would someone *kindly* explain this “serious questions going to the merits” business?

    1. “It’s unconstitutional but we’re going to let you keep doing it anyway.”

    2. What it means is that the final decision will be broad, based on the actual merits of the case, rather than being a finely-tuned decision hinging on a single point that is specific only to a single case.

      In other words, it is whether a certain type of firearm may be banned within the strictures of the Constitution, not whether a particular action by one government official was right or wrong.

      The Heller decision was broad, and this will be as well.

  7. “In fact, prior to California’s 1989 ban, so-called assault weapons were lawfully manufactured, acquired, and possessed throughout the United States.”

    “Prior to Lincoln’s 1863 proclamation, so-called slaves were lawfully possessed throughout the rebellious states.”

    1. Prior to the Code of Hammurabi it would be lawful to execute you on a whim.

    2. Comparing humans to inanimate objects. Nice.

      1. You’re a tool.

      2. To a Progressive, people are property.

  8. It’ll happen the way we lost all our other freedoms: the long march on the institutions.

    Has anyone been paying attention to the soon-to-be ATF director?

    1. The whiff of BBQ-esque smoke still sticking to him? Yeah.

      Things are about to come to a head. Despite this good news from Judge Benitez.

    2. I saw a meme comparing him to one of those wind-up monkeys that bangs cymbals.

      1. Holy shit, that is spot on! My subconscious was seeing this the whole time.

  9. is not reliably supportive of the Second Amendment.

    That is an almost English level of understatement.

  10. Hopefully, this will lead to the end of California’s handgun roster. You can’t buy a handgun in California unless it’s on a list approved by the state, and not every manufacturer goes through the rigmarole of getting it on the roster.

    Like that new .9mm everyone’s talking about online?

    Chances are, you can’t get it.

    1. Take a look at this list.

      https://www.pewpewtactical.com/california-roster-handguns/

      Probably not too much to argue with–those being the top ten on the list.

      You can buy a Glock!

      Gen3 only.

      Gen4 came out ten years ago.

      I don’t really care about Glocks, but that’s an indication of how restrictive the list can be. If you can’t buy anything more recent than a Gen3 Glock, how restrictive must the roster be on other models that aren’t so popular?

      1. You can’t but cops can.

        1. They try to justify it with safety tests, too–as if a Gen4 Glock is less likely to go off when dropped by a trained police officer?

          1. Because law enforcement heroes are trained so well, their guns don’t need to be “safety tested”

            https://m.youtube.com/watch?v=YnoJ4uqUa1U

            BTW that Glock didn’t malfunction, Agent Dipshit is the malfunction

            1. “You can dance if you want to
              but leave your gun behind,
              ’cause it might go of and if it goes off
              then you’re no friend of mine!”

        2. And then the cop can sell it to you, at a healthy profit of course

    2. The list exists under a different rationale – that these guns have been deemed ‘safe’ through meeting some arbitrary criteria set up by the government.

      This sort of thing will get a more lenient (rational basis versus intermediate scrutiny) treatment by the courts.

      1. It’s a lot like California’s regulation on motorcycles. Some of the best models for various applications only sell a few hundred in the country–not enough of a profit to justify the cost of subjecting it to California’s environmental tests. So, they just don’t sell those models in California.

        If you buy a motorcycle in another state and try to register it in California, they’ll give you temporary plates, and instead of getting permanent plates in the mail from the DMV, you’ll get a notice telling you that if you can’t prove that the motorcycle is no longer in California (out of state bill of sale, etc.), they’ll fine you so much a day up until it’s gone–up to $5,000.

        You can get away with it if the bike has more than 7,500 miles on it, if you’re moving from somewhere else, but a lot of people never put that many miles on their bike.

        In other words, it’s a lot like their list of guns an FFL can sell. Who gave them the right to set environmental policy, violate out Second Amendment rights, and effectively force us to sell our property–all without a trial?

        1. “but a lot of people never put that many miles on their bike.”

          Does that power drill on the odometer trick still work?

          1. No, most modern odometers are electric and not cable driven.

            1. How about the Ferris Bueller trick? (yeah I know he tried to run it in reverse to take miles off, but forward should work to put more on)

            2. Looking it up, just a crude prox sensor, easy enough to spoof.

        2. I know people with relatives in other states who “borrow” their family’s vehicles for a few weeks at a time, in rotation, to avoid the high (and going higher) CA licensing taxes. As long as a car isn’t in CA longer than a particular length of time, you can get away with that, and they keep pictures of the vehicles (with dates) parked at their places of registration to prove they didn’t go past the time.

    3. Like that new .9mm everyone’s talking about online?

      Automatic .9mm complete with high capacity magazine.

      Great deal, only $4.45!

      1. Do you do spelling, too?

    4. Benitez mentions that list, and that it is shrinking, as negating the “you can buy other guns” argument.

      It’s 94 pages, but worth reading.

      1. But they say there are “hundreds” of gun models on the roster. Of course if you if you count car models the way they count gun models there are hundreds of models of Honda Civics you can buy since every color in every different option set would be considered a different model.

  11. While it’s clear to every rational person that firearms ownership is an individual right upheld by the Supreme Court (despite what insane leftist MollyBitch says), the democrats in this country will continue their lies and deceptions to disarm you. Biden will probably get his ATF pick because RINOs are weak spineless creatures. They will continue their assault on us because Americans are too short sighted to understand. Even getting Congress back we’ll have too many Kinzingers and Cheneys around who would rather fall in goose step with the left than support conservative policies.

  12. My o/u could be an ‘assault weapon’. So could my Hi Power, or 357, or deer gun. I’m glad to see a judge that understand that fact.

    1. Cosmetic details make something an assault weapon. Stick a pistol grip and flash suppressor on your deer rifle, viola you’ve got an assault weapon!

  13. I doubt the Supreme Court will want to take this case up on appeal in this environment.

    The progressives are just looking for an excuse to pack the Court. Why give it to them when the lower court made the correct ruling?

    If the Court had ruled against gun rights, that might be a different story. Then, maybe, the Court would be more likely to hear the case.

    1. How the fuck do you not realize that trying to avoid cause for the leftists to pack the court means it’s already lost?

      1. Who said it wasn’t lost? If the Democrats can pack the Court whenever they want, then that’s the way it is regardless of whether it should be. We could have avoided that in November of 2020 or January of 2021, and we didn’t.

        And I didn’t say this is the way that it should be.

        I don’t pretend that things aren’t the way they are because I wish they were some other way.

        I think the Court is genuinely concerned about giving the Democrats an excuse to pack the Court, and for that reason, I suspect the Court will probably avoid taking this case up for consideration–regardless of whether they should.

        1. Fair enough.
          I took “The progressives are just looking for an excuse to pack the Court. Why give it to them when the lower court made the correct ruling?” as your sentiment rather than you speaking the court’s perspective.

    2. The problem with that reasoning is that, if they reach a point where they’re able to pack the Court, they won’t lack for excuses. There are several precedents they’re already committed to declaring illegitimate. Heller and McDonald. Citizens United.

      The only reason the Court hasn’t already been packed is that their majority in Congress is too slim to permit it. Nothing else stands in the way.

      1. “The only reason the Court hasn’t already been packed is that their majority in Congress is too slim to permit it. Nothing else stands in the way.”

        The main reason the majority in Congress is too slim to permit it is because some in Congress are still too afraid of the public backlash if they packed it. Team blue politicians in purple districts and States are worried about losing their seats if they go too far.

        The radicals in deep blue districts and states are looking for an excuse to push the relatively moderate among them over the edge, and if there were anything that might accomplish that, it would be issues like gun rights and abortion.

        Like I said, it would be one thing if the lower court had gotten it wrong, and there will be more opportunities to reaffirm cases like this when the Republicans take back the House come 2022–and historically, the President’s party takes a beating in the House during his first mid-term.

        The only thing stopping the Democrats from packing the Court is the perception among moderates within the Democratic party that the Court isn’t so radical that the Court needs to be packed, and if the Court starts taking radical action, that perception is subject to change.

        1. The main thing stopping the Democrats from packing the Supreme Court is an attachment to not getting shot for trying it. Attempting to pack the court for ruling “the wrong way” on a 2A case would bring out *all* the, ah… “most extreme supporters” of 2A.

          Please note this is not an endorsement of that, merely a prediction.

        2. Which means that it isn’t likely to happen anytime soon. Joe Mnchin of WV announced a couple days ago that he would vote against ending the filibuster, and the Senate Parlimentarian isn’t about to allow restructuring the Supreme Court through via reconciliation. And the Dems are very likely to lose the House in 2022. They will likely lose most of their thin majority through decennial reapportionment (despite mitigating it a bit with Census Bureau fudging). Moreover, Speaker Pelosi seems determined, through the legislation being passed, to drive us into a recession. Moreover the contents of her various “stimulus” and “infrastructure” bills is almost completely aimed at deep blue urban constituencies. Ask yourself, are the voters in those swing districts more interested in fixing highways, or more low high speed passenger rail service? Pelosi and her Dem leadership picked extending her low high speed train from nowhere to nowhere, plus a bunch of other crazy rail schemes, over fixing highways. Except that more and more people are fleeing urban living, where rail transportation might make sense, because it is a death trap in pandemics, and violence is soaring. She and her caucus have little leeway right now, less due to Reapportionment, and that is probably being squandered through their concentration on what much of the country considers radical legislation.

          1. I doubt the Dems will lose a single seat through reapportionment. They will use the redistricting to ensure its a Republican that loses their seat (and in IL at least they are already planning to gerrymander the remaining districts to remove 2 more Republicans)

  14. If Judge Benitez‘s ruling doesn’t make it to SCOTUS pretty soon, it’ll be reversed there 10-6.

  15. Reason writers will enthusiastically support gun controllers if the alternative is mean tweets.

    1. That’s not quite accurate as an analogy. But not completely off.

      AR-15s are technologically advanced over earlier rifles and carbines. They are soft shooting, thanks to both using the exhaust gasses to reciprocate the action, and most often the use of a buffer spring to reduce felt recoil. They are fairly accurate, and esp for follow up shots, because the barrel is in line through the buffer tube to your shoulder, minimizing muzzle flip. Because the stock is easily replaced, and most stocks today are adjustable, it is easy to tailor an AR-15 to individual shooters.

      And the guns are highly modular, shooting rounds between .17 through .50 BMG, through barrels between maybe 5” and 28” or so, taking seconds to switch (pull two pins out, swap in a new upper receiver/barrel assembly, and push the pins back in). If you don’t like the trigger, you can swap a new one in in not much more time. Lights, optics, slings, etc go on and off in a jiffy.

      Finally, they are almost identical in functionality to the main battle rifle used by our military for almost 60 years now. They have the same manual of arms, and if you can disassemble and then reassemble an M16 or M4 in the dark, you can do the same with an AR-15 just as quickly. They are indeed, the optimal militia weapon, regardless of how you define “militia”.

      1. Yeah, for all the shit that it gets about its operational capability versus an AK-47, there’s a reason it’s the platform of choice for so many gun owners. The thing is dead simple to take apart and clean, and the modifications and potential configurations are almost endless. The only other modern rifle I’ve seen with a simpler mechanical design was the SKS.

        1. When it came time to buy, I did plenty of research and settled on the AR platform. Mostly because of modularity. If I anticipated dragging the thing through the mud on a regular basis I would have gone with an AK.

        2. It depends on how you define simple. I always thought the AR platform was anything but simple. Sure, field stripping and cleaning is easy but part count wise it’s a bit much with springs and detents both holding and being held in by nearly every other part.

          Perhaps the biggest plus of an AR is the cost so you can get in cheap and upgrades are easily done for a few bucks as extra cash allows. You really can’t do that with something like a SCAR 16 at several times the cost.

          1. Definitely the case – as evidenced by essential missing parts kits being sold that contain a lot of the more frequently lost tiny parts like those detents and springs.

            1. Detents and springs don’t go anywhere unless you take them apart; I have back ups but mostly focus on things like the bolt and its attendant parts as being likely to wear out [gas rings, ejector, extractor, firing pin, etc.].

              1. Again, it comes down to what’s meant by ‘simple’. A gun can be mechanically simple with far fewer parts than an AR but still be more difficult to field strip. An FAL is about as easy to field strip as an AR with a similar number of parts where a mini-14 has about 1/3 fewer parts and is more simple but might not be as easy to field strip. There’s tradeoffs each way.

  16. Equate AR-15s with Swiss army knives and of course you’l get applauded by right-wing libertatian morons. (If I detest libertarians so much, why do i follow *Reason*? For the same reason people visit zoos. )

      1. Yeah, a smarter troll could have spun it into something at least a little interesting.

        A better troll might have said something about how progressives like Bloomberg want to regulate the size of sugary soft drinks like they’re 30 round magazines–and why that’s a good thing?

    1. Eat a shotgun muzzle.

    2. Are they not like Swiss army knives?

      1. I’d rather have a Leatherman super tool 300 multitool. It was wire cutters and a saw.

        Which rifle is the equivalent of that?

        1. Didn’t the Galil have a bottle opener?

        2. Gerber is better.

        3. AR-10

        4. My AK’s bayonet has a wire cutter and a saw

    3. GFY

    4. To infiltrate and sow idiocy on behalf of the entrenched, force-initiating looter Kleptocracy? David Sh*t should join the current Libertarian National Committee!

    5. Nobody is equating the two, but they are both tools. A hammer is a tool with specific uses. And it can easily be used to kill. Same with a pen. ARs do it better at a distance, but they’re still inanimate hunks of metal and plastic until a human puts them to use.

    6. Someone read a Mencken quote sometime. You’re both stupid and unoriginal.

    7. People visit zoos to see your mom.

  17. Good for both home and battle

    Sounds like the judge is setting up the appeal.

    1. Have you used your AR-15 in battle and found it to be lacking? You should hesitate to blame the AR-15 instead of your lack of proficiency. After you’ve used it in a dozen or so battles, you’ll get the hang of it.

      1. Interesting thing about battle; it is the reverse of school. First you get tested, and if you survive, you might learn the lesson.

        1. Exactly. The pithy adage (what doesn’t kill you…) surely applies. Even Kelly Clarkson knows this.

          1. Only delays the inevitable?

      2. I don’t think that was a negative comment about the ruling or the AR. I think it was intended as a compliment to the judge for setting things up for the Ninth Circus to have a hard time overruling the order in light of Heller.

  18. Awesome, now do Massachusetts.

    1. Now there’s a state, or should I say commonwealth, with some absurd gun laws. Whenever I go to Boston I double check my car to make sure there’s no stray bullets rolling around from the last trip to the range.

      1. Forget actual rounds, it’s illegal to have *empty brass* in that shithole.

  19. Let’s hope Brian doesn’t expect pagan national socialists to understand or agree with his article condemning their Kristallnacht gun laws. Religious national socialists might give it a nod, but continue to insist that pothead “dope attics” be barred from exercising Second Amendment rights. Remember that Republican Tricky Nixon on 26 May 1972 signed an ABM treaty with the Soviet socialist dictatorship promising to stop our military from intercepting incoming nuclear attack. So much for GOP oaths “to provide for the common defense…”

  20. I wouldn’t use an AR for home defense. Too loud. That’s what Mr. 9mm is for.

      1. I was just going by noise at the range. Looks like I’m wrong, based upon this study anyway.

        https://www.caohc.org/UserFiles/file/Shot%20of%20Prevention%20extra%20handout.pdf

        Says 9mm ranges 160db – 163db vs 159db for 762. I really thought the rifle made more noise. Hm.

        1. The noise is primarily from the muzzle blast, and a rifle transfers more of the propellant energy to the bullet, so it’s hardly surprising if you think about it for a moment: The muzzle blast is marginally less energetic for the carbine.

          1. Muzzle blast is INCREASED in the carbine, if firing the same round as the full rifle.

            The objective is to convert all of the propellant into propulsion at the muzzle. Still-burning powder creates it’s own shock wave, in addition to the shock wave of the supersonic bullet, and much of this wave is reflected backward.

            1. I assumed we were comparing carbines to pistols, not rifles.

        2. Why would you shoot 7.62 when you can shoot 308? Far better round. But your neighbors wouldn’t appreciate it.

          1. 7.62 X 51 = .308

        3. One of the problems with 5.56/.223 caliber ammunition is that the powder utilized is optimized for maybe an 18” or so barrel. That means that there is probably some additional muzzle flash of unturned powder with a 16” barrel (shortest legal barrel for civilians w/o an SBR stamp or used in a pistol) The problem gets worse, the shorter the barrel. That is one of the reasons that I went with .300 Blackout instead of 5.56/.223 for my AR-15 Pistol.

          I do have a 9 mm carbine, but with traditional hardware, and not built on an AR-15 platform. That means that the stock isn’t quite the right length for my body, and it has all of the maneuverability problems indoors inherent in a 16” barrel. I leave it in MT when we go south for the winter every year, because I find handguns, along with the .300 Blackout AR pistol and a full size 5.56 NATO AR-15 much more realistic for living in an urban environment.

          I am thinking though of building a 9 mm AR pistol (barrel <16” and pistol brace instead of standard stock) for use around the house for when we go south for the winter.

          1. “One of the problems with 5.56/.223 caliber ammunition is that the powder utilized is optimized for maybe an 18” or so barrel. That means that there is probably some additional muzzle flash of unturned powder with a 16” barrel…”

            Perhaps, but that’s what gun mufflers are for. Or just deal, though I hope you’ve got ear-pro handy. Terminal ballistics for even 10 inch or so barrelled 5.56 trumps that for any regular ‘pistol cartridge’. ~2300 FPS or so MV. Perfectly fine for two legged targets at typical SD ranges, given the right ammo, as .Mil shows.

            Ballistics by the inch is still extant, albeit un-updated. Double check the numbers there.

      2. Oh I see, 9mm carbine. Never shot one. Maybe I’ll add one to my collection, but I’ve got others in line first. Next on my list is a shotgun so I can do more than watch when they do skeet at the range on Thursdays.

        1. As noted above, I was underwhelmed with my 9 mm carbine. If I do it again, it will be on an AR-15 platform. Or, there is a contraption that you can put a regular handgun (at least Glock 17 or 19) in, and it acts almost like a short barreled rifle. It gives you the stability of a stock (or pistol brace) with the possibility of easily adding optics and lights, but the maneuverability indoors of a handgun. With a stock or stabilizing brace, you really don’t need more than a full sized handgun in barrel length indoors.

          One reason I bought the 9 mm carbine in the first place was the cost of ammunition. Well, 9 mm is no longer that much cheaper than 5.56/.223. Someday. Maybe. But with 40 million NICS searches last year, and last month or so setting new records (I.e. continuing white hot gun sales), I don’t see it happening that soon.

    1. That’s what suppressors are for.

      1. This is the way.

        1. Slight disagreement. While I absolutely sympathize with convenience at the range and concealment in the field and wouldn’t forbid anyone their silenced .223, I do not believe it is ‘the way’. I want the the aggressors to die in the loudest, most grotesque way possible. I want my neighbors to know that shit’s going down and still feel comfortable leaving their doors unlocked. I want the perp’s children to tell their grandchildren stories about what happens when you break into the wrong house in the wrong neighborhood.

          1. Using a suppressor makes it harder for the opponent to know which direction the round comes from.

            1. Using a suppressor makes it harder for the opponent to know which direction the round comes from.

              In the field, sure. In my house, can hear the dog’s collar jingle when it rolls over three rooms away. Unless you happen to live in a football stadium, I’m dubious as to the efficacy/ubiquity of a suppressor inside a house.

              Moreover/to the point, *I want them to know that the shots are coming from inside the house*. Whether you’re/they’re fleeing the guns or the cans, I don’t much care.

              1. Using a suppressor in the house means that you can hear afterward.

                If you’re in a good neighborhood (that is, one where the cops are on your side), the cops will appreciate not having to shout when they ask you questions for the paperwork.

                If you’re in a bad neighborhood (that is, one where the cops think that only they should have guns), the question won’t come up because the Biden voter next door won’t know what happened, so not calls to the police. If you really want to play with her mind, you drop the body on her porch then turn her in.

  21. Leftists lie and misrepresent the 2A so they can violate people’s individual right to bear arms, disarm the population, and make everyone easier to control.

    1. You give them too much credit. They have an emotional reaction to scary-looking guns, and banning them makes them feel safe. That’s about it. Maybe some politicians have some nefarious plan, but for the most part it’s “Scary gun! Scary gun! Do something!”

      1. The ones who take the time to stop, misrepresent the 2A, and publish their misrepresentation are the ones I’m talking about.

        That’s more than thinking “guns scary.”

        1. Is it? Or is it creating a justification for what they feel?

          1. Interpretations of the constitution don’t justify feelings. It’s not like people aren’t allowed to be afraid of guns until the 2A is ignored for some reason.

            1. I don’t think these people are motivated by some grand design to enslave us all. Though it is the logical conclusion of disarming everyone.
              They feel that scary guns are more dangerous and used more often.
              And they trust government.

              Put it all together and you’ve got that expression about good intentions paving the road to hell.

              1. I really don’t think the intellectuals who intentionally misinterpret the 2A are scared of guns, because they’re not scared of government guns.

                1. Slimy Constitutional lawyers who see their job as twisting the document to mean what it obviously doesn’t mean are tools. They’re doing a job.

                  1. I’m just doing my job hasn’t been an excuse since 1945.

              2. The Democrat leaders are totally motivated by a design to enslave us all. Look at what they’re doing.

  22. O/T – In one more step to global enslavement government, the G7 reach deal on global corporate taxes.

    1. Fucking highwaymen.

    2. Finally an end to the twin evils, nationalism and populism, is in sight! Global libertarian anti-populism FTW.

  23. This will be bounced around in the courts until the end of time. The Supreme Court will watch then do nothing. A basic constitutional right was stolen. This is a disgrace.

  24. Chemerinsky beclowns himself.
    https://www.yahoo.com/entertainment/op-ed-nutty-court-ruling-235445969.html

    The supposed scholar tells us that “No one can argue that AR-15 style weapons existed, let alone were in common use, in 1791. ” Apparently Chemerinsky has forgotten that not all that long ago SCOTUS ruled 9-0 in Caetano v MA that the above line of argument is without merit.

    The supposed scholar continues this gem: “Would anyone really compare an AR-15 assault rifle, which has been used in so many recent mass killings, to a Swiss Army knife?” But how is it that a lawyer of Chemerinsky’s status cannot distinguish between a comparison and an analogy? Judge Benitez’s point is writing that the AR-15 is like a swiss army knife was that the AR15 is useful for many applications. This is an obvious reply to those who say the AR15 is useful only in warfare. This holding presents problems for the gun grabbers so of course Chemerinsky has to obfuscate.

    Lastly Chemerinsky contends that “When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said: It was solely a right to have guns for the purpose of militia service.” This is yet another lie. In US v MIller (1939) SCOTUS stated “Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below. ” The Miller decision has been criticized for its less than precise holding but no person with basic knowledge of the various state right to bear arms provisions would suggest that every one of those state provisions limits the right to bear arms to militia service. On the contrary, if the Miller court had held that the second amendment protects “solely a right to have guns for the purpose of militia service” such a holding would have been at odds with the great majority of state right to bear arms provisions.

    What makes us less safe is experts who lie.

    1. If the Miller court had actually concluded that the 2nd amendment just “solely a right to have guns for the purpose of militia service”, they’d never have gotten to the point of asking about military utility, because Miller was a felon disqualified from militia service.

      Instead, they ruled that the 2nd amendment only protected private ownership of firearms suitable for military service. And that they’d not been put on notice a sawn off shotgun was such.

      1. Of course, the equivalent sawed off or short barreled shot gun in Miller had been used in the trench warfare of WW I, and was still in federal and state armories around the country at the time, and for years after that. The case was handicapped because none of this was in the court record, and Miller himself died before it was complete. Still, the NFA was passed, to a great extent, to try to keep Tommy Guns and BARs out of the hands of the gangsters of the era using them (and both of those weapons were in use by the military at the time, and at least through the Korean War).

        The reason that Miller should scare the gun grabbers is that AR-15s are the civilian, semiautomatic, version of the select fire main battle rifles principally used by our military over the last sixty years. It is the one firearm that anyone leaving the military over the last sixty years has probably experience with. They share the sam3 manual of arms, and if you can dissemble and reassemble an M16 or M4 in the dark, you can do the same with most AR-15s (ok, maybe not CA approved AR-15s – which is another reason that ban is probably unconstitutional). The only firearms more perfect for use by militias in this country are their select fire cousins (M16 and M4 Carbines) – which means that, using the Miller militia argument, if semiautomatic AR-15s aren’t legal as militia weapons, then select fire M16s and M4s must be.

        1. I guess I should have clarified about Tommy Guns and BARs (apparently the favorite gun of Clyde Barrow) is that the NFA was enacted at a time when shootouts between police and gangsters with automatic weapons were terrifying the public. My theory is that the Supreme Court was going to allow the NFA, in order to get these weapons out of the hands of gangsters, for one reason or another. The easy way out for them was the bad factual record in Miller, so that they could base it on a legal non truth. If that hadn’t worked – they would have found something.

          Contrary to what Chemerinsky would want us to believe, firearms such as AR-15s are very rarely used to perpetuate gun violence in this country. He tries to divert us by talking about mass killings. But, of course, ignores the hundreds, probably thousands, of drive by shootings every year, most using handguns, of course. In reality, he is arguing to ban a firearm owned by tens of millions because it is used a couple times a year, maybe, to kill fewer than 100 people, cumulatively, out of a population of over 330 million. We are probably below lightning strikes as a cause of death. Almost all firearms (>90%) used offensively in this country are going to continue to be handguns, because of their conceilability. I have a very short AR-15 handgun (7.5” barrel with an adjustable brace replacing the stock), and even that would require at least a suit coat to conceal.

          1. Also, the Miller case was after the “switch in time”. I’ve often said we dodged a bullet in US. v Miller, because it being a trial in abstentia allowed the Court to rule in the government’s favor on the narrowest grounds possible. And they WERE going to rule in the government’s favor, regardless.

            Had Miller been represented before the Court, by competent counsel, the Court would still have ruled against him, but the precedents set in doing so would have been horrifying, because they would have had to confront and affirmatively reject every argument we might make.

            1. Very much agree.

      2. Yes, any intellectually honest person would agree with those two points. But we are not dealing with honest people.

        The Miller court’s cite to Aymette vs TN eliminates any doubt as to the actual holding of US vs Miller. Note that Aymette turned on the individual right of the citizens to possess arms suitable for use in civilized warfare versus the unprotected and illegal possession of arms which are useful only to the robber or assassin. But again, we are not dealing with honest people.

    2. Okay, so a guy is claiming that the Bill of Rights only covers items which existed in 1792.

      He’s doing so over the Internet, which didn’t exist when freedom of speech and press were put into the First Amendment.

      1. Okay, so a guy is claiming that the Bill of Rights only covers items which existed in 1792.

        Re: Unwritten “right to privacy” circa 1792
        Out: Coathangers, back alleys.
        In: Blunt force trauma, chlamydia, gonorrhea

  25. You know, in Article 1, Section 8 of the Constitution, it says it’s a duty of the Congress, “To provide for organizing, arming, and disciplining the Militia…”

    As an able-bodied citizen, I’m part of the Militia, so where’s my free arms, Congress?

  26. There’s a show-biz self-congrat-mosh-pit going on this evening in DC; I’m sure we’ll have the constitutional scholars (the jokesters on late night TV) telling us how horrible this is.

  27. I blame Scalia. He blathered on and on, paragraph after paragraph, but could not take the time to write a simple declarative sentence in Heller.
    “The AR15 and similar rifles, their ammunition and accessories, are protected for civilian ownership by the 2nd Amendment, which shall not be infringed.”
    But, no. Scalia had to impress everyone with how smart he was.

  28. Much legal wrangling and nonsense ahead, but this is good for Cali and beyond. It may only be a low hurdle but it is a hurdle for the reinstatement of a national AWB. Yes, it was unconstitutional then, too; as are GCA ’68 and NFA ’34 – baby steps back to a Constitutional republic.

    “Military weapons in civilian hands are for preserving civil rights and civilian lives. They are, indeed “weapons of war”: humanity’s
    10,000-year-old continuing war against tyranny.” ~ L. Neil Smith

  29. It must be nice being able to dismiss the needless violent deaths of tens of thousands of people per year based on “principle.”

    Must be a pretty fucking rock-solid principle, huh? You must be real sure the right to unfettered gun access is actually important and does important stuff for people.

    1. “If given the choice between letting people commit suicide and keeping them alive and torturing them, I choose to torture.” – Tony

    2. You mean, like on the highway?

      Or the HUNDREDS of thousands killed by doctors who make the wrong decision, diagnosis or move with a scalpel?

  30. Guns are infrastructure.

  31. If, as the judge says, a ban on assault rifles “has no historical pedigree,” neither do the weapons themselves. Modern assault rifles are far more destructive than the “arms” that the Founders meant to protect in the Second Amendment, and there’s nothing “well regulated” about the citizens who purchase them. In fact, the judge is wrong – there does exists a venerable pedigree for banning modern weaponry unknown to the Founders: the National Firearms Act of 1934, banning machine guns. The courts should stay out of state laws like this at the risk of discrediting the 2nd Amendment (which I support in the case of reasonable self-defense).

    1. You have obviously never compared the 3/4″ ball fired by a 1792-era musket to the .22 bullet fired by the carbine that you thinks is “far more destructive.”

      Your ignorance regarding “well regulated” is to be expected.

      1. “Your ignorance regarding “well regulated” is to be expected.”

        Also regarding repeating / multi-shot arms well predating the founding.

        The founders knew well that private citizens could and should be better armed individually than the ordinary soldier – that was in no small part why they were able to found the country.

        The regular British soldier was armed with a single shot musket of 50 yards range and a bayonet.

        It was not unusual for an American militiaman to be armed with a rifle with 200 yards range, a pistol, a short (maybe even double) barreled shotgun, a war tomahawk, and a large fighting knife.

        “The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
        ~ Tench Coxe

    2. In fact, the judge is wrong – there does exists a venerable pedigree for banning modern weaponry unknown to the Founders: the National Firearms Act of 1934, banning machine guns. The courts should stay out of state laws like this at the risk of discrediting the 2nd Amendment (which I support in the case of reasonable self-defense).

      “Joe Biden exists, therefore, Hunter is of venerable pedigree.”

      I don’t think you know what the words ‘venerable’ or ‘pedigree’ mean.

    3. You are completely wrong on this- not the Judge (At least in the example you cited). The National Firearms Act of 1934 did NOT ban machine guns. It merely moved them into a new “class” – Class 3- weapons which may be owned by a law abiding citizen who has paid for a tax stamp and filed an application with the ATF. This class also includes suppressors. I have fired Class 3 weapons, there was a video a few years back of an absolutely horrific accident involving a fully automatic firearm (machine gun as you term it).

      Secondly, as anyone who took English in grade school will tell you, Well Regulated modifies Militia. Well Regulated does NOT modify the People. The Founders did not create the Constitution to restrict or restrain the People; the Constitution’s Bill of Rights exists to restrict the State. As Justice Scalia stated in District of Columbia v Heller, 554 U.S. 570, The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be re phrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.””

      And what in the WORLD could you possibly mean by The courts should stay out of state laws like this? Are you INSANE? One of the purposes of the Courts, and of THE Court, is to protect the People from the State. This has been doctrine since Marbury v Maddison.

      Therefore I respectfully disagree with your entire comment.

    4. By the way- as as of May 2019, there are 699,977 registered machine guns in the U.S. that alone should definitely prove there is not a ban on machine guns

  32. The real issue here is not the weapon but “why do some people use violence to solve problems?”. That’s the problem needing to be solved.

    Violent-prone people will just choose a different weapon. Do we ban knives, tools from the local hardware store or automobiles?

    If the 2nd Amendment is not a legal “restraint” on government authority (as it was designed to be), what about banning 1st Amendment exercises (some rap music, violent movies, violent video games, etc)? What about the 14th Amendment rights of African-Americans, LGBT-Americans and religious minorities?

    The premise of the Bill of Rights is that it legally “restrains” government authority (as interpreted by the Judicial Branch courts). In other words these agencies never had these authorities in the first place. These are authorities illegally assumed and the courts simply can’t keep up in providing Judicial Review (ruling on constitutionality).

    Democrats and Progressives usually support these other amendments (enforceable through Judicial Branch court cases). If we weaken the 2nd Amendment, we weaken the oversight process by the courts over the two political branches.

    If clauses of the U.S. Constitution (a wartime governing charter) are fundamentally flawed, it can be amended through the constitutional-amendment process but Democrats will regret it if we bypass constitutional due process. The issue is why do some people choose violence as a way to solve problems, not the weapon of choice.

  33. Nearly 100% of the postings on this site are perfectly legal First Amendment exercises. Police, fusion centers and even federal agencies need a “judicial warrant” to search any of the people posting on this site. The police officer, FBI official or other official must risk penalty of perjury/obstruction by applying for a search warrant.

    The 4th Amendment legally “restrains” police and government officials trolling these sites then illegally searching our computers. Many of these officials do it anyway, they assume authorities they don’t have. Maybe we need to expose this also.

  34. Although this is a great decision, it will be appealed to the 9th Circuit, and regardless of any three judge panel ruling, it will be struck down. If the three judge panel upholds the ruling it will be heard en banc- and the 9th will strike it down. As 9th Circuit Judge Lawrence Van Dyke stated in his “fiery” dissent in Mai v United States: “To the rational observer, it is apparent that our court just doesn’t like the Second Amendment very much. We always uphold restrictions on the Second Amendment right to keep and bear arms. Show me a burden—any burden—on Second Amendment rights, and this court will find a way to uphold it. Even when our panels have struck down laws that violate the Second Amendment, our court rushes in en banc to reverse course.”

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