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BREAKING LATE WEDNESDAY ...

According to Lyle Denniston at SCOTUSblog:

Justice Kennedy on Wednesday afternoon denied, in a brief order without explanation, the request to block enforcement of the Sunnyvale ordinance limiting the size of ammunition-containing “magazines” in that California city.

The city of Sunnyvale and its officials urged the Court to deny the application. [In a filing made earlier this afternoon.]  Limits on gun magazine capacity have been a part of state law in California for fourteen years, and thus Sunnyvale merely added a provision against continued possession of larger magazines, the brief in response argued.

Of course, the Court can still take this case on review after the District and Circuit Courts have ruled. This kind of request for "emergency relief" is often not granted.  

TUESDAY's DIARY, AS IS

Never at a lack for ingenuity in lodging Second Amendment cases at the Supreme Court, six gun advocates have asked Justice Anthony Kennedy to enjoin the City of Sunnyvale, California, from enforcing a new law that bans magazines with larger than a ten-round capacity.

The case is Fyock v. City of Sunnyvale. The application and a brief description is now available on SCOTUSblog's home page.

They appealed to the Federal District Court, which refused to stay enforcement pending appeal. The Ninth Circuit also refused to stay the ban. J. Kennedy, who haswith jurisdiction over the geographic area of this case, has asked the city to respond by tomorrow afternoon.

The matter is strictly discretionary. Justice Kennedy can grant or deny the application himself or he can refer it to the full Court.

A bit more below the orange bullseye ...

Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
The six applicants in Fyock press the urgency of their case on the grounds that the ordinance does not have a grandfather clause and they will soon be at risk of violating the law or turning over their magazines. They insist the matter is a violation of the Heller handgun case because they use these magazines in firearms for self-defense.

The District judge's response to their request was direct:

Magazines having a capacity to accept more than ten rounds are hardly crucial for citizens to exercise their right to bear arms.
I'll cover this case in greater detail after the City or other local government officials have filed their responses.
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We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a battle.

Originally posted to TRPChicago on Tue Mar 11, 2014 at 04:05 PM PDT.

Also republished by Shut Down the NRA, Repeal or Amend the Second Amendment (RASA), and Firearms Law and Policy.

Poll

Magazines with more than ten rounds of ammunition should be ...

43%58 votes
53%72 votes
2%4 votes

| 134 votes | Vote | Results

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Comment Preferences

  •  "while hardly crucial for self-defense" (2+ / 0-)
    Recommended by:
    ban nock, oldpunk

    banning possession of 10+ round magazines would be a futile gesture, whose effectiveness as law is still more hypothetical. like so many easily thwarted or poorly written accessory regulations (flash hiders, pistol grips) related to the firearms debate (pre/post-ban California accessories regulations on sales), regulating the ownership rather than sales of millions of higher capacity magazines pre-existing in the general population unless connected to previously NFA regulated records of BATFE regulated gun ownership only makes the prosecution for possession not so much a crime as it does an additional, yet secondary crime which is not a deterrent to the primary crime of gun violence itself. The banning of so-called "assault rifles" may fare better because of the serial numbers associated with each receiver.

    Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013 (@eState4Column5).

    by annieli on Tue Mar 11, 2014 at 04:31:21 PM PDT

    •  I agree. There are many ways to get around ... (7+ / 0-)

      ... this California law. A law supported by a majority of the voters in a public referendum.

      The irony is that gun rights advocates criticize laws for the practical impossibility of enforcement and for all the loopholes they can devise ... and then they prove it by exploiting them.

      No one element can be effective by itself against the proliferation of guns and ammo. Against the largely hidden lobby of an industry manipulating a relatively small percentage of gun owners. Against the onslaught of people who are not happy with anything short of absolute fundamental Federal constitutional-level gun rights.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Mar 11, 2014 at 04:48:32 PM PDT

      [ Parent ]

      •  one cannot generalize from (1+ / 0-)
        Recommended by:
        ban nock

        accessories especially constitutional matters - there certainly was a boom and a boon for accessories manufacturers in the post-Newtown period, but the real issue is not about constitutional protections and the usual issues of public referenda which often get overturned in subsequent litigation, but how we conduct ourselves as a society and examining the real circumstances and relations rather than all of the commercial fantasies.

        Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013 (@eState4Column5).

        by annieli on Tue Mar 11, 2014 at 04:54:40 PM PDT

        [ Parent ]

      •  It's an easy step to require new (1+ / 0-)
        Recommended by:
        Sharon Wraight

        ammunition magazines to have serial numbers that encode the manufacturer and a number.

        Yes, criminals will still collect, trade, and use un-numbered magazines. I'd support federal funding for an exchange program to replace un-numbered magazines w numbered magazines.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Wed Mar 12, 2014 at 05:03:08 PM PDT

        [ Parent ]

    •  It might be futile in the short term, but if kept (6+ / 0-)

      in place over 20 years, my future grandchildren would live in a different environment with respect to firearms - that's why I support it. And, it would place an additional hurdle that somewhat who wants to do mass harm would have to clear, and maybe they wouldn't - that person couldn't simply walk into a shop and take a 30 round mag of a shelf.

      "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

      by We Shall Overcome on Tue Mar 11, 2014 at 05:23:17 PM PDT

      [ Parent ]

      •  no, they'd just have to go (2+ / 0-)
        Recommended by:
        We Shall Overcome, ban nock

        to a gunshow or swap meet as in Colunbine

        Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013 (@eState4Column5).

        by annieli on Tue Mar 11, 2014 at 05:29:14 PM PDT

        [ Parent ]

        •  I think gun shows and swap meets will prove ... (7+ / 0-)

          ... vulnerable. And not out as far as in the long run. Surround them with some enforceable conditions supported by a majority of responsible gun owners, and there is cause to hope.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Tue Mar 11, 2014 at 05:33:58 PM PDT

          [ Parent ]

        •  Not sure about that - not sure at a gun show where (2+ / 0-)
          Recommended by:
          Sharon Wraight, LilithGardener

          a purchase has to run through a BC and I think through an FFL - which is the case in many states - that the dealer can sell an illegal magazine.

          "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

          by We Shall Overcome on Tue Mar 11, 2014 at 05:35:19 PM PDT

          [ Parent ]

          •  they're accessories, (1+ / 0-)
            Recommended by:
            We Shall Overcome

            no FFL needed for vendors - you should go to one sometime to see what's available - plans and machining templates for sten guns ( popular with the biker meth dealer crowd), hater bumper stickers, war memorabilia, as well as legitimate collectors

            Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013 (@eState4Column5).

            by annieli on Tue Mar 11, 2014 at 05:41:57 PM PDT

            [ Parent ]

            •  But, that could change, no? At many gun shows (3+ / 0-)

              there is no BC for firearm purchases -if I am not mistaken. Why couldn't magazines be included, or ammo?

              "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

              by We Shall Overcome on Tue Mar 11, 2014 at 05:44:33 PM PDT

              [ Parent ]

              •  you're talking about regulation and local laws (1+ / 0-)
                Recommended by:
                We Shall Overcome

                as well as state laws - in CT, BCs are mandatory at shows but only for actual firearms and not for ammo. In MA some places cannot sell ammo except in tents outside the building.

                Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013 (@eState4Column5).

                by annieli on Tue Mar 11, 2014 at 05:48:41 PM PDT

                [ Parent ]

              •  you're talking about private sales... (4+ / 0-)

                Licensed dealers still are required to run people through background checks, gun show or no; the so-called gun show loophole refers to private sales that occur in locales where there are no background check requirements for private transfers.

                That's why a federal law for background checks on all transfers of firearms is important. It stands to reason that the same requirement should be extended to magazines and other accessories that are functional and mechanical and not purely cosmetic.

                No, you can't fix stupid. You OUTNUMBER stupid. -Wildthumb, 1/10/2013

                by newinfluence on Tue Mar 11, 2014 at 08:39:58 PM PDT

                [ Parent ]

                •  NY now requires background checks on ammo (2+ / 0-)
                  Recommended by:
                  Glen The Plumber, Sharon Wraight

                  purchases, and no ammo can be purchased over the internet.

                  One thing the law does is level the playing field for licensed dealers within NY State. Any one who wants to purchase some obscure ammo can still go to their local gun shop and have the FFL order it over the internet. The FFL is responsible for vetting the seller as a legitimately licensed business, in whatever state they are selling from.

                  The people who are cut out, are the guys who buys bulk and sell it out of their home in an unregulated and potentially unsafe manner.

                  It also means that criminal organizations will have to drive out of state to buy their ammo, or hire mules to bring it in. Either way it's another chance for law enforcement intervention before people get shot.

                  "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                  by LilithGardener on Wed Mar 12, 2014 at 05:11:43 PM PDT

                  [ Parent ]

              •  Background checks mandatory at CA gun shows (5+ / 0-)

                You can't buy a firearm, handgun or otherwise, from anyone, anywhere in California without going through an FFL. There was an exception for 50-year-old or older long arms, but that's no longer permitted either.

                The only current exception is if you have both a 03 FFL (also called a Curios & Relics license, or C&R license) and a California issued Certificate of Eligibility. Then you may sell or buy a long arm that qualifies as a curio or relic (basically, one that either is on the federal C&R list or is at least 50 years old) without getting a firearms dealer (someone with a 01 FFL) involved. But even then, you can only sell it face-to-face to someone else with both the C&R and COE.

                You are required by federal law to log such a transfer in a bound book, which can be inspected by the BATFE at any time. California now requires you to register the purchase of any long arm as well.

                As for magazines, California law already makes it illegal for most people to sell, buy, or import magazines with more than ten rounds' capacity. Magazines owned and in the state prior to January 1, 2000 are grandfathered in. That is the reason the Sunnyvale plaintiffs are so upset: if they surrender the magazines, they won't be able to replace them without pulling up roots and moving to another state.

                Though arguably they could just rent a storage unit in Mountain View or something for now. Maybe the Sunnyvale law will be overturned.

                Still, it is sometimes difficult and/or significantly more expensive to find ten round or less magazines for a lot of modern guns. Rhetoric about high capacity versus standard capacity notwithstanding, the simple fact is that many common and/or popular handguns and rifles ordinarily have magazines designed for more than ten rounds. (My old late 40s FN Herstal Hi-Power had a thirteen-round magazine as standard even back then, for example.)

  •  Scalia: owning guns more important than democracy (4+ / 0-)

    I wouldn't put it past this SCOTUS to ban any democratically-chosen local or state gun-safety laws. It's one of the main reasons I want a Democratic President in 2016.

    I hope Justice Stevens is around long enough to see Heller and McDonald overturned. :-)

    •  Interesting... (2+ / 0-)
      Recommended by:
      Sharon Wraight, LilithGardener

      Judge Whyte is a GHWB appointee:

      http://en.wikipedia.org/...

    •  I'm not big on rights being voted on in referendum (7+ / 0-)

      I'm uneasy when I hear of any rights going up to a referendum like the privacy of a woman to choose or the equal protection of someone to marry whoever they'd like.

      “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

      by ban nock on Tue Mar 11, 2014 at 05:13:23 PM PDT

      [ Parent ]

      •  OK, but do you have more confidence in a ... (5+ / 0-)

        ... GOP-controlled legislature to pass reasonable rights protecting legislation?

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Tue Mar 11, 2014 at 05:25:19 PM PDT

        [ Parent ]

        •  I'm not very confident about a GOP controlled (5+ / 0-)

          legislature finding their way to the restrooms or especially protecting the Bill of Rights, on guns though they have a better recent history I bet when you get right down to it they too would like an unarmed population.

          I was listening to Ed Shultz the other day going on a rant about some sports star getting busted for carrying in NY. Ed's argument was "this guy makes 6 million a year, why doesn't he just hire an off duty cop as security?" Rich people don't need to protect themselves much, they have people to do that.

          “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

          by ban nock on Tue Mar 11, 2014 at 06:29:40 PM PDT

          [ Parent ]

      •  owning guns, just like abortion and gay marriage (11+ / 0-)

        We read it here, first!

        As a Democrat, I am opposed to the the Scalia/ Thomas/ Alito/ Kennedy/ Roberts misinterpretation of the Second Amendment in Heller, and I support the Stevens/ Ginsburg/ Breyer/ Souter dissents. I support the right of well-regulated state militias to keep and bear arms, as written in the US Constitution.

        I generally support property rights, but I also support the right of our representative government to restrict those rights in order to form a more perfect Union, establish Justice, insure domestic Tranquility, and promote the general Welfare. E.g., I support most of the major Consumer Product Safety Commission's decisions that I'm aware of (lead paint, asbestos, phthalates in baby clothes, carbon tet, etc.).

        •  I'm certainly for many restrictions for safety (7+ / 0-)

          reasons like you note, paint, asbestos, etc. Even for just plain irritants, like does your first amendment mean you can blast the stereo outdoors at 2AM? But I sure don't see much difference between a 10 shot mag and a 12, (both are made for jamming he he)

          I'm pretty liberal when it comes to rights.

          “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

          by ban nock on Tue Mar 11, 2014 at 06:24:28 PM PDT

          [ Parent ]

          •  The law is a crude tool. (5+ / 0-)

            Take speed limits -- not much difference between 55 mph and 60 (both also made for jamming, "by broken heroes on a last chance power drive" hehe). And in practice, most police won't pull you over unless you're going well over the limit -- 9mph? it varies -- and they can do so for just 1 mph over.

            Ideally, laws are crafted with care, precision, sound grounds, etc. But at some point in making a law, one must make a distinction, however arbitrary that line is.

            •  All lines are, in some way, arbitrary. And on ... (5+ / 0-)

              ... the other side of one, there's often a slippery slope for someone.

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Tue Mar 11, 2014 at 07:52:26 PM PDT

              [ Parent ]

            •  With speed limits, road design is a speed factor (0+ / 0-)

              Roads are designed for travel at X miles per hour.  Engineering studies have shown that when a road is designed for X mph, most people will naturally, i.e. in the absence of a limit posting, travel near X mph.   This is also why it can be difficult and even irritating to drive at the posted speed on a road where it has been artificially reduced.  Something I am sure most can relate to.

              My biggest complaint with the ammunition limits is that they are arbitrary and I don't buy the in the public safety interest argument.  What little evidence I've seen shows this to be false.

              "It's not surveillance, it's data collection to keep you safe"

              by blackhand on Wed Mar 12, 2014 at 07:53:20 AM PDT

              [ Parent ]

        •  The Heller majority is not pushing itself into ... (5+ / 0-)

          ... gun cases, despite plenty of opportunities to do so in the almost six years since Heller.

          I didn't like Heller outcome, mind you, but it's the law and as stated, it's confined. Not that it will remain so, but there is that good language - call it dicta if you will - that says what the Court is not deciding.

          Frankly, I think we have more to fear from the Court neutering Congress's Commerce Clause powers and limiting the latitude of the Executive Branch to function within the framework established for the Executive Branch, its departments and agencies.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Tue Mar 11, 2014 at 06:30:08 PM PDT

          [ Parent ]

        •  Blinkered Philistine pig ignorance (3+ / 2-)
          I support the right of well-regulated state militias to keep and bear arms, as written in the US Constitution.
          No nicer way to say it than my comment title, I'm afraid. Sharon, if you read what the writers of the 2nd had to say about it, it is painfully and explicitly clear that they intended it to be a personal right. Claiming anything else is ignorance of the evidence and rank historical revisionism that has absolutely no place at a reality-based site. You clearly disagree with the 2nd, you are free to disagree with the 2nd and make arguments against it, but if you rewrite history to fabricate a basis for that disagreement then I am free to call you out on grounds of chicanery and/or ignorance, in depth and in detail.

          So, let's put that tired "2nd is only about state militias" nonsense to bed with some words from the people involved:

          "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms..." - Samuel Adams
          "Are we at last brought to such humiliating and debasing degradation that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" - Patrick Henry
          "The right of self-defense never ceases.  It is among the most sacred, and alike necessary to nations and to individuals." - James Monroe
          "Here, every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offense..." - John Adams
          "No freeman shall ever be debarred the use of arms within his own lands or tenements" - Thomas Jefferson
          Note that three of those five went on to be President, so if they thought the 2nd was being interpreted wrong they would have had a pretty big soapbox from which to say something about it.

          And there's pages and pages more where that came from, but I think you get the point. Whether or not you think their reasons have any validity today, when they wrote it they had just finished securing your freedom (the freedom of white males, anyway), largely by means of privately owned firearms, and it is beyond ludicrous to suggest that the first thing they did as a new nation was to say that the only firearm right was a collective one.

          Plus of course that according to the Constitution (Article 1, section 10), states cannot arm themselves without federal permission, so your particularly...creative interpretation means that the government was effectively giving itself permission to let the troops it authorized...have guns. Clearly they thought that later generations might have been unclear on the idea that raising an army also including arming it, so they put in the 2nd to make sure people did not neglect that important aspect of the process. /snark

          P.S. Oh look, they're talking about you:

          "I believe there are more instances of the abridgment of the freedom of the people by the gradual and silent encroachments of those in power, than by violent and sudden usurpations." - James Madison
          •  You had me at "Blinkered Philistine pig ignorance" (7+ / 0-)

            ... mockery and sarcasm are often signs of a troll. So, I ignored the rest of your post and I'm guessing most others will, too.

            "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

            by We Shall Overcome on Wed Mar 12, 2014 at 07:21:46 AM PDT

            [ Parent ]

          •  1) Go *read* Stevens' & Breyer's dissents (5+ / 0-)

            in Heller (signed by all four liberal justices), and 2) rebut them point-by-point without relying on Scalia's decision (signed by all five conservative justices) or talking-points from the pro-gun lobby.

            I'd HR your personally insulting and condescending comment, but it's directed at me, so I'll refrain.

            if you read what the writers of the 2nd had to say about it, it is painfully and explicitly clear that they intended it to be a personal right.
            No, that's false, as Stevens et al. demonstrate.
            Claiming anything else is ignorance of the evidence and rank historical revisionism that has absolutely no place at a reality-based site.
            No, the premise is false, hence so is the conclusion.
            You clearly disagree with the 2nd, you are free to disagree with the 2nd and make arguments against it
            Um, thank you?
            but if you rewrite history to fabricate a basis for that disagreement
            Which I'm not. But did you notice that you not only tried to re-write history yourself, you misquoted one of the Founders in another gun diary, even as you were accusing another Kossack of rewriting history? (I can provide the link, if you wish. It is rather amusing, in an ironic, arch, hypocritical way.)

            I don't have time right now to wade through each of your out-of-context quotes and correct you, and even if I did your offensive tone is so off-putting that you're not worth my time.

          •  There are contrary views. J. Scalia's parsing ... (6+ / 0-)

            ... of history and his "originalist" approach to Constitutional interpretation and application is not the majority view to interpreting Constitutional history. It worked to justify the outcome in Heller for a thin majority. But it doesn't blow away dissenting views. (The Constitution is a living document and even John and Sam Adams, my personal heroes, were not always right! I doubt that J. Scalia's view of "originalism" and its importance will be SCOTUS's approach in many other cases, but as to that, we'll see.)

            Much of the published "research" on the Second Amendment came in the last 30-35 years from very conservative sources and it was highly advocative. It had a point to prove, putting it in a different category from a lot of historical and legal scholarship.

            I'm not saying it isn't valid but it is only one approach, a parsing of history that has its advocates, but it is not the only view or even a dominant one. And specifically, many respectable judges would not write off the opening condition of the Second Amendment as prefatory only.

            So ... "Blinkered Philistine pig ignorance" is way too strong, an unjustified ad hominem attack that no previous comment on this diary deserved.

            We're trying to reason these issues through. Contrary views, well argued and insightful, are welcome. Ad hominem attacks aren't.

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Wed Mar 12, 2014 at 08:20:11 AM PDT

            [ Parent ]

            •  Many thanks for your measured, informed thoughts. (0+ / 0-)

              I am not a lawyer, and I respect your legal training and the insights it gives you. (And I appreciate your trajectory and candor in thinking about this and other issues.)

              Much of the published "research" on the Second Amendment came in the last 30-35 years from very conservative sources and it was highly advocative. It had a point to prove, putting it in a different category from a lot of historical and legal scholarship.
              Yes, this!

              This worries me on many issues besides guns, as well: the network of right-wing "think" tanks created post-1973, ideological academic journals, sophist professors who publish in them, conservative mass-media who broadcasts these ideas, and foundations who support all the above have created a whole generation of students (and adults) who don't know how to interpret this context.

          •  HR'd for false accusations and personal (2+ / 0-)
            Recommended by:
            Glen The Plumber, Sharon Wraight

            attack.

            The sad thing is you have some good ideas and arguments to make. But for some reason you don't write diaries and attempt to persuade people.

            HR for DBAD and personal attacks, which you have made a specialty of.

            Of course, uprated by the usual crew of ineffective disruptors, Theater goon, Kasoru, and FrankRose.

            "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

            by LilithGardener on Wed Mar 12, 2014 at 05:43:38 PM PDT

            [ Parent ]

      •  There is no constitutional right to (2+ / 0-)
        Recommended by:
        Glen The Plumber, Sharon Wraight

        lay down suppressive fire.

        There is no constitutional right to consume thousands of rounds of ammunition every week or even every month.

        It's not even clear whether there is a right to carry concealed guns in public. While I think there is a right to public carry inferred in Heller, the scope of that right is far from settled.

        In the later half of the 19th Century a dozen states specifically excluded concealed carry from their constitutional right to keep and bear arms, with language specifically allowing legislatures to regulate or prohibit concealed carry.

        For example, Louisiana's state constitution was amended in 1879:

        "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 abridged.  This shall not prevent the passage of laws to punish those who carry weapons concealed."  Art. 3. [my bold]
        It was amended again in 1974:
        The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. [my bold]

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Wed Mar 12, 2014 at 05:31:26 PM PDT

        [ Parent ]

        •  Both of your complaints could be covered (0+ / 0-)

          under the 9th amendment.

          If you own a ranch on the Texas border and a drug gang is laying violent seige to your house there is nothing illegal about taking a legally owned full auto and keep surpressing fire on that group while other manuever to their flanks.  

          I've consumed that many rounds in a week.  Was there a problem I was unaware?

          Or do you suffer under the delusion that unless something is speficially mentioned in the Constitution then it can be prohibited.

          Tell me where marrying is mentioned in the Constitution, having sex, an abortion, smiling, chewing gum, playing with your kids...

          They aren't now do they have to be in order to be protected.  It's a much further stretch to say that abortion isn't protected by the Constitution because it is two step removed from anything specifically prohibited whereas operating arms is simply one step.

          The Constitution limits what the Federal Government can do it isn't some Napoleonic document spelling out only what is allowed.  I see no authorization in Article 1 Section 8 to restrict either of the two actions you describe and I see rights of property, arms, privacy all protecting those actions.under the 9th amendment.

          If you own a ranch on the Texas border and a drug gang is laying violent seige to your house there is nothing illegal about taking a legally owned full auto and keep surpressing fire on that group while other manuever to their flanks.  

          I've consumed that many rounds in a week.  Was there a problem I was unaware?

          Or do you suffer under the delusion that unless something is speficially mentioned in the Constitution then it can be prohibited.

          Tell me where marrying is mentioned in the Constitution, having sex, an abortion, smiling, chewing gum, playing with your kids...

          They aren't now do they have to be in order to be protected.  It's a much further stretch to say that abortion isn't protected by the Constitution because it is two step removed from anything specifically prohibited whereas operating arms is simply one step.

          The Constitution limits what the Federal Government can do it isn't some Napoleonic document spelling out only what is allowed.  I see no authorization in Article 1 Section 8 to restrict either of the two actions you describe and I see rights of property, arms, privacy all protecting those actions.

    •  It would be nice to have a court (12+ / 0-)

      that focuses on protecting the rights of people rather than the rights of the gun industry.  

      “The purpose of our lives is to add value to the people of this generation and those that follow.” – Buckminster Fuller

      by TheFern on Tue Mar 11, 2014 at 05:24:37 PM PDT

      [ Parent ]

      •  "protecting the right of the people" (1+ / 0-)
        Recommended by:
        theatre goon

        Good thing that is exactly what the Second Amendment specifically does:
        "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."

        Those who would sacrifice liberty for security deserve neither.

        by FrankRose on Wed Mar 12, 2014 at 09:09:06 AM PDT

        [ Parent ]

      •  Indeed. For a couple centuries SCOTUS (1+ / 0-)
        Recommended by:
        TheFern

        did interpret the 2nd Amendment this way, there was little discussion of it until the gun-lobby grew in power, I think starting in the 1950s (but I'd like to read a rigorous history of it).

  •  Hey, we're gonna need magazines with over 10 (3+ / 0-)

    bullets for the Zombie Apocalypse.

  •  This law's a goner anyway. (5+ / 0-)

    California has explicit and total state preemption of firearms law.

    --Shannon

    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
    "Dissent is patriotic. Blind obedience is treason." --me

    by Leftie Gunner on Tue Mar 11, 2014 at 06:45:11 PM PDT

    •  Surprised we haven't heard anyone else mention thi (2+ / 0-)
      Recommended by:
      FrankRose, theatre goon

      I agree, its only a matter of time.

      Up next for California: MUST (shall) issue.

      •  Not sure if shall issue will actually happen (3+ / 0-)

        The Ninth could decide to rehear Peruta en banc and reverse the decision. Or it could go to the Supreme Court and they might nix the ruling.

        •  A NJ case beat Peruta to SCOTUS, but barely. (6+ / 0-)

          ... Drake v. Jerejian from the Third Circuit. Alan Gura, who successfully argued Heller and McDonald, is on both Drake and Peruta.

          Drake raises two Second Amendment issues: Is there a right to carry firearms in public for self-defense? And "whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a 'justifiable need' for doing so."

          The Court may wait to consider both at the same time, to address - or not - the split in the Circuits. That might even incent the Ninth Circuit to hear the Peruta case en banc so as to review its three-judge panel's 2-1 decision and buttress it or change the ruling. There's not much rush, since if review is granted, the argument(s) would not be until next fall.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Wed Mar 12, 2014 at 04:26:11 AM PDT

          [ Parent ]

          •  Thanks, important cases! (2+ / 0-)
            Recommended by:
            TheFern, Glen The Plumber

            I only wish they could be postponed until there's a liberal majority...   :-)

            •  SCOTUS is not rushing to take more 2A cases. (4+ / 0-)

              That could for any number of reasons. One possibility is that the Heller majority was fragile and the most ardent among them don't want to take a case that might weaken the precedent.

              It only takes four justices to grant the kind of review sought (certiorari) in these cases! It's only a rare case when the justices give any reason for denying cert.

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Wed Mar 12, 2014 at 01:22:33 PM PDT

              [ Parent ]

          •  Did not know about Drake v. Jerejian (1+ / 0-)
            Recommended by:
            LilithGardener

            Thanks for bringing the case to my attention.

            I suspect SCOTUS would want to hear both cases or neither, not just one or the other... though of course that depends on whether Peruta moves forward. It's possible the Ninth Circuit judges will decide not to grant Harris's motion to intervene or on an en banc review. Whether SCOTUS decides to grant cert to Drake might make a difference on the latter, I suppose.

            All speculation at this point, of course.

    •  not true... (7+ / 0-)
      States with provisions expressly preempting local regulation of one or more aspects of firearms or ammunition but otherwise permitting broad regulation of firearms and ammunition at the local level:  California, Nebraska

      In California and Nebraska, local governments retain authority to regulate firearms and ammunition, but the state legislature has expressly removed this authority in certain areas.

      California:  California expressly preempts local governments from regulating in the areas of registration or licensing of firearms; manufacture, sale or possession of imitation firearms; and licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business.  In other areas, courts have found that local governments have a great deal of authority to regulate firearms and ammunition in their communities.  For example, courts have rejected preemption challenges to many local firearms and ammunition laws, including ordinances regulating the location and operation of firearms dealers, and the sale and possession of firearms and ammunition on county-owned property.

      link

      I do think the hi-cap mag part of Sunnyvale's new laws is the most vulnerable...which is why the NRA is attacking it.

      but the other 3 parts seem pretty solid...similar laws in other cities have already withstood court challenges.

      We are not broke, we are being robbed. ~Shop Kos Katalogue~

      by Glen The Plumber on Tue Mar 11, 2014 at 09:51:06 PM PDT

      [ Parent ]

    •  Glen's right on this, I'm afraid (4+ / 0-)

      California state law doesn't provide for preemption of all things relating to firearms, rather just the "areas of registration or licensing of firearms; manufacture, sale or possession of imitation firearms; and licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business." Cal. Gov’t Code § 53071, Cal. Gov’t Code § 53071.5 , and Cal. Penal Code § 25605(b).

      This is why San Francisco was not able to legally ban the possession of firearms within the city limits, but Los Angeles has been able to restrict the possession of magazines that hold more than ten rounds.

    •  What's the process for that? (2+ / 0-)
      Recommended by:
      Glen The Plumber, Sharon Wraight

      Does the state AG sue the city council?

      A diary on how that works would be most welcome.

      "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

      by LilithGardener on Wed Mar 12, 2014 at 05:46:19 PM PDT

      [ Parent ]

  •  Only very tardily did I find a great diary on ... (6+ / 0-)

    ... Sunnyvale's passage of this ordinance: http://www.dailykos.com/...

    Apologies to Glen the Plumber for barging along with the law and missing the best parts he covered so well.

    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Tue Mar 11, 2014 at 06:46:43 PM PDT

  •  Existing magazines should not be banned (2+ / 0-)
    Recommended by:
    FrankRose, Shamash

    and if they are the city should at least have to pay the market price of each one prior to the ban. There should be no taking of property that was legally owned without compensation.

    To be first in the soil, which erupts in the coil, of trees veins and grasses all brought to a boil. -- The Maxx

    by notrouble on Tue Mar 11, 2014 at 07:02:41 PM PDT

    •  Nope, laws do this. If not with a ban, with ... (4+ / 0-)

      ... such cumbersome restrictions as to negate the value of something - inventory, a plant, a production method, a product, a line of business, etc.

      You're making the plutocrats' argument, that the government is ruining something they paid for.

      Are you confident you could tolerate the principle you're proposing for something important that you wanted to ban?

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Mar 11, 2014 at 08:00:56 PM PDT

      [ Parent ]

      •  This law is not regulating them (2+ / 0-)
        Recommended by:
        FrankRose, Shamash

        It is effectively taking by making possession illegal after the fact.

        To be first in the soil, which erupts in the coil, of trees veins and grasses all brought to a boil. -- The Maxx

        by notrouble on Tue Mar 11, 2014 at 08:19:15 PM PDT

        [ Parent ]

        •  Agreed (3+ / 0-)
          Recommended by:
          FrankRose, notrouble, andalusi

          There are also lessons to be learned from what is happening in CT, where even many police have said that they refuse to enforce the new laws.

          Ultimately, laws must reflect the will of the people governed or the system will break down.  Making after the fact criminals out of people who did nothing wrong is not a good way to go about this.

          "It's not surveillance, it's data collection to keep you safe"

          by blackhand on Wed Mar 12, 2014 at 08:01:24 AM PDT

          [ Parent ]

      •  Example: bath salts. (4+ / 0-)

        A lot of cities/states are banning "bath salts" (which are not really bath salts, they are synthetic versions of street drugs like cocaine) and for people who own bath salts they already purchased?  Now they are breaking the law by having them in possession.  Most localities have some sort of "turn-in" program where people can turn over drugs to the authorities and they won't ask questions (or the drugs can be dropped into a night deposit like those at a bank if the person wishes to remain completely anonymous).  So yes, TPR you are right, it is not uncommon for us to ban a product/item and there be no grandfathering in of those items which are already on the market/in someone's possession.

        "I don't want a unicorn. I want a fucking pegasus. And I want it to carry a flaming sword." -mahakali overdrive

        by Silvia Nightshade on Wed Mar 12, 2014 at 12:17:57 PM PDT

        [ Parent ]

    •  Agreed (6+ / 0-)

      There is that whole pesky "Constitution" that we occasionally follow, and without at least a grandfathering clause it is a violation of the Fifth Amendment. While eminent domain is usually to repurpose private property for for public use, it has also been used on the grounds of public safety when the state has no plans to actually use what it is taking.

      So strictly speaking, the local government needs to either allow current owners to retain their magazines, or buy them all back (plus possibly the weapons themselves) at market rates.

      •  Probably would still engender bad feelings (0+ / 0-)

        The market rate for a standard capacity magazine is generally not very high, after all. Someone with a 15-round Beretta 92 magazine won't be happy giving it up for $25 and no chance to own one again without moving to another state.

        Sunnyvale's ordinance did allow owners to sell the magazines to an FFL within 90 days. Not sure how eager an FFL would be to buy a magazine that's probably seen heavy use and is at least 14 years old at this point, much less pay full market value.

        The other two options aren't much better: either turn magazines over to the police to be destroyed or store them out of the city limits. Even unassembled magazines can't be kept in Sunnyvale.

  •  This is really interesting, and thanks Tom (5+ / 0-)

    for bringing this aspect of the California story to readers of the Firearms Law and Policy group.

    I'll be back later to read through the comments and reply in more depth.

    I would like to point out that similar laws have been on the books since the mid 90s in several other states. And some of those states, such as Connecticut have had an individual right to bear arms for defense of self and the state for many years, (Connecticut passed their state constitutional version of the 2A in 1818, 190 years before Heller).

    There are about a dozen states that have had high-cap magazine regulations, most since the 1990s. The bottom line is that ammunition magazines have been regulated since the 1920s-1930s and laws that regulate high-cap magazines have been upheld numerous times in state and federal courts, including post-Heller.

    E.g. Connecticut passed assault weapons and magazine limits in 1993, and their laws have already been challenged and vetted on constitutional RKBA grounds at the state level. (for noobs RKBA = right to keep and bear arms).

    Other states, such as NY, don't have any version of the 2A in their state constitution, so in those states the legal history in Federal Court, post-Heller, is more limited.

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Wed Mar 12, 2014 at 10:09:14 AM PDT

  •  A Constitutional right to own and use - pre-Heller (5+ / 0-)

    It should be noted that 43 states have a version of the Second Amendment in their state constitutions, so many state gun laws have already been vetted against constitutional RKBA challenges pre-Heller.

    I'd be very happy to see a link to any court decision holding that there is a constitutional right to own and use large-capacity ammunition magazines, and to own and use assault weapons.

    I'd be very happy to see a link to any court decision holding that ammunition regulations are unconstitutional, either at the state level or the federal level.

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Wed Mar 12, 2014 at 10:13:15 AM PDT

  •  49 reasons (1+ / 0-)
    Recommended by:
    TheFern

    The Second Amendment, I really don’t understand why this is such a problem? When there are 49 reasons which explains it for normal people. Have someone explain this.

    If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”). “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights.

    Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”?

    Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.

    Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…”

    In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times.

    It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.

    “..No Person shall be a Representative..”
    “..whole Number of free Persons,..”
    “..three fifths of all other Persons…”
    “..No person shall be a Senator…”
    “..And no Person shall be convicted…”
    “..no Person holding any Office…”
    “..Names of the Persons voting for…”
    “…of such Persons as any of the States…”
    “…not exceeding ten dollars for each Person…”
    “…And no Person holding any…”
    “…or Person holding an Office of Trust o…“
    “…and vote by Ballot for two persons,…”
    “…List of all the Persons voted for,…”
    “…The Person having the greatest Number of Votes…”
    “…and if no Person have a Majority,…”
    “…the Person having the greatest Number…”
    “…No person except a natural born Citizen,…”
    “…Any Person be eligible to that ….”
    “…No Person shall be convicted of …”
    “…except during the Life of the Person attainted….”.
    “…A Person charged in any State…”
    “…No Person held to Service…”
    “…The right of the people to be secure in their persons,…”
    “…and the persons or things to be seized….”
    “..No person shall be held to answer…”
    “..nor shall any person be subject for the same offense….”
    “…they shall name in their ballots the person voted for as President,…”
    “…the person voted for as Vice-President,…”
    “…all persons voted for as President,….”
    “…all persons voted for as Vice-President…”
    “…The person having the greatest Number of votes for President, …”
    “…and if no person have such majority,…”
    “..the persons having the highest numbers …”
    “… The person having the greatest number of votes…”
    “..and if no person have a majority,…”
    “…But no person constitutionally ineligible…”
    “…All persons born or naturalized …”
    “…nor shall any State deprive any person of life, liberty, or property,…”
    “…nor deny to any person within …”
    “…number of persons in each State,….”
    “…No person shall be a Senator or …”
    “..and such person shall act accordingly….”
    “…of the death of any of the persons from…”
    “…death of any of the persons from…”
    “…No person shall be elected to the office…”
    “…and no person who has held the office of President,…”
    “..to which some other person was elected…”
    “…shall not apply to any person holding the office…”
    “..prevent any person who may be holding…”

    •  When our Supreme Court returns (0+ / 0-)

      From its current reactionary bend,  we will return to a more rational politic where, once again, words can maintain their meaning.  Until then we will suffer the delusional logic of fools.  Shouldn't be long now.  Reagan's Justices won't live forever.

      “The purpose of our lives is to add value to the people of this generation and those that follow.” – Buckminster Fuller

      by TheFern on Fri Mar 14, 2014 at 05:35:22 PM PDT

      [ Parent ]

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