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The 9th Did What?

Tuesday, July 24, 2018 19:05 | Anonymous


Ugh!  I really, really wanted to write about Judge Kavanaugh… but, once again, that is going to have to wait…



This last week a three-judge panel of the 9th Circuit handed down a decision on the preliminary injunction of Duncan v. Becerra.


Yes… it was a good thing.


It was not, however, the angels heralding and the clouds parting.  It was a fairly simple procedural decision, and one that was not wholly unexpected.


Unfortunately, some have seen headlines and already begun proclaiming that “the 9th circuit has overturned California’s standard capacity ban!” 


Errr… not exactly.  


So let’s review exactly how we got here, and do a little prediction for the future.


California Penal Code §32310 says:

  

(a) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.


Seems pretty clear right?


Not exactly.


(If you have arrived here from our newsletter, continue reading here…)


The law does not explicitly state that you cannot have a “large capacity” magazine.  It regulates the method of acquisition of said magazine.  Moreover, the law is written in two clauses:  The first clause is a commercial clause and stipulates the commercial methods that you, as a seller, are prohibited from selling the magazines.  The second clause, following the word “or,” regulates the non-commercial methods, and those wishing to act as buyers.


Most people get tripped up on the clause “imports to the state.”  This is a commercial term of art and relates to the importation for commercial sale, not the importation for personal use.


Had the legislature simply wanted to make them all illegal, it could have very easily written the law to say, “No magazines acquired after January 1 are legal in the State of California.”  That would have been easy… yet, the legislature did not do it.


In the battle to “out gun control” each other, Gavin Newsom and De Leon both drafted, and ultimately passed, legislation to further restrict standard capacity magazines.  


Newsom’s Prop 63 passed, which amended §32310 to essentially make the mere possession of a magazine capable of holding more the ten rounds, regardless of how it was acquired, a finable infraction.


A lawsuit was filed called Duncan v. Becerra.  That case was brought before Judge Benitez in San Diego, and the plaintiffs (the ones looking to overturn the law… the “good guys”) asked for a preliminary injunction.


Basically, they were arguing that since the law could not be litigated before it was set to take effect, they asked the judge to hold off implementing the law.  (That is essentially what a preliminary injunction is.) 


For Judge Benitez to issue a preliminary injunction, he needs to find two things:  First, that the plaintiffs have a high likelihood of prevailing at trial, and second, that if the law ends up taking effect before the trial, they will suffer an irreparable harm.


In a spectacular opinion, Judge Benitez issued the injunction and called out the State of California for constantly passing unconstitutional laws.  


Now, typically when someone loses on a preliminary injunction, it is a huge indicator that when the actual trial comes up, that party will lose as well.  After all, the judge has already said that the plaintiffs have a high likelihood of succeeding on the merits.  


What was the Department of Justice’s response to losing the preliminary injunction?


Appeal the loss to the 9th!


The three-judge panel who heard the case was indeed incredulous with the State.  


“Why are you doing this?  The case is to be heard in a couple of months anyway.  What extreme necessity requires the immediate implementation of this law?”


These were some of the questions that the justices on the 9th asked of the State.


Not surprisingly, they upheld Judge Benitez’s power to issue a preliminary injunction without second guessing him.


So… yes… it is a good thing.


Did the 9th overturn §32310?  Not even by a long shot.


So… what happens now?


Well, the case of Duncan v. Becerra will be heard in a couple of months in front of Judge Benitez.  He, more than likely, will overturn the law enacted by Prop 63 leaving us in the exact same position we were prior to Prop 63’s passage.


DOJ will appeal that final ruling to the 9th.


Then the 9th will formally overturn Judge Benitez, and say that Prop 63 is perfectly acceptable.


This will then be appealed to the Supreme Court, where, hopefully, we have Judge Kavanaugh sitting confirmed as the newest associate justice.  


Then… having been given the opportunity to finally rule, these stupid magazine bans will be overturned once and for all.


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