#California – Odd Stuffing

A Warning For Semi-Free Americans

California defending its unconstitutional gun control laws is nothing new. They write laws intended to strip law-abiding citizens of their Second Amendment rights while simultaneously writing laws to keep criminals from being punished and releasing those who are already in jail. When these laws are challenged, activist judges put in place by extremist politicians rubber stamp them with some of the most outrageous legal rational to ever come out of a court.

After having their laws against so-called large capacity magazines (LCMs) ruled unconstitutional at the District Court and with a three-judge panel on the Ninth Circuit Court of Appeals in the case of Duncan v. Becerra, California has requested a hearing by an en banc panel. Nothing new here, it’s the state just prolonging the fight and running up the bills for the opponents. But what might have gone unnoticed is the 18 Attorneys General who sent a friend-of-the-court in support of California’s law. While some of these states already have a form of magazine restrictions in place, others do not. If you live in one of these states, what do you think this means for the future of your standard capacity magazines?

Attorneys General from Washington D.C, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington all signed onto the brief.

Of the states with magazine restrictions, most limit them to 10 rounds, a couple are 15 or mixed 10 & 15 for rifle & handgun. Others, like New Jersey, were at 15 and recently cut that to 10. A couple of these states have “grandfathered” clauses which allow those who possessed them to keep them after the law change. Of course, we all know that “grandfathered” just means deferred confiscation as California residents found out when the state changed its mind on legally possessed “grandfathered” magazines and decided they were now illegal.

The other states, Delaware, Illinois, Michigan, Minnesota, New Mexico, Oregon, Pennsylvania, Virginia and Washington do NOT have laws against so-called large capacity magazines. BUT… their Attorney General supports them. What do you think this means for the future of magazine capacity laws? It means sooner or later, like it or not, these states WILL restrict magazines to 10 rounds.

Why 10 rounds? There really isn’t any rhyme or reason to it. 15 was apparently too many and seven as implemented and ruled unconstitutional in New York was too few. There certainly isn’t any science or research to support it. If you read the rational from extremist gun control think tank & quasi law center, you see how careful wording is used to justify it. It explained how few self-defense shootings “needed” more than 10 rounds and how many firearms from unlawful shootings were found with “large capacity magazines”. No mention of the fact that more rounds HAVE in fact saved the lives of law-abiding citizens or the ACTUAL number of shots fired by criminals, just the capacity of their magazines. Facts matter, unless you’re trying to infringe on constitutionally protected natural rights.

California argues to the Court that the majority of citizens voted for Proposition 63 which, among other gun control measures, outlawed magazines with a capacity greater than 10 rounds, and as such should be considered valid. Of course, this has ZERO bearing on the legality of this case, and that’s a very good thing.

Despite the popular misconception, the United States is not a democracy, it is a republic, or better known as a democratic republic. The distinction is critical. In a democracy, the majority rules on every issue and there are no protections for the minority opinion. If 51% of the population decides there is no right to free speech, then there is no right to free speech, period.

In a republic, there is a constitution which protects certain inalienable rights that cannot be taken away by the government, even if a majority of the population votes for it. So even if 99% of the population votes there is no right to free speech, then the law is unconstitutional and invalid.

The Attorneys General friend-of-the-court brief is much the same argument. 18 party loyal extremist prosecutors who don’t believe the Second Amendment right to a standard capacity magazine exists for the average citizen believe their opinion should sway the court. Guess what, it means DIDDLY SQUAT!! But then again, this is the 9^th Circuit, so any extremist view will likely be taken into consideration.

Where do these Attorneys General opinions matter? In your home state. These are the people who will help draft the anti-standard capacity magazine legislation and give it their stamp of approval. These are people who will lobby the legislature from within to get this law on the books. These are the people who will ensure law-abiding citizens who defy them are prosecuted to the full extent of the law as an example to others. This is YOUR Attorney General.

Why am I directing this as a warning to semi-free Americans? Because if your state has already started down the gun control path, this is in your future. Gun control starts slowly with the least objectionable, easiest to pass infringements like universal background checks. After all, who could object to something that will keep firearms out of the hands of criminals? It doesn’t matter that the universal background checks have been shown to be completely ineffective means of curbing crime or violence, it’s a toe in the door to more infringements.

While the Duncan v. Becerra directly relates only to California’s magazine ban, it would provide precedent for other western states to appeal their magazine bans, and indirectly those in the rest of the country. While this is important, I’m going to repeat what I’ve said time and time again.

It’s a fool’s errand to believe that once a law has been enacted, it can successfully be drawn back. Of the thousands of gun control laws passed around the country, precious few are successfully appealed and reversed. The best way – the ONLY way to stop them is to prevent them from being enacted in the first place. And the only one who can do that is you.

If you live in Delaware, Illinois, Michigan, Minnesota, New Mexico, Oregon, Pennsylvania, Virginia or Washington, your Attorney General has already cast his vote on your Second Amendment rights. It’s time for YOU to cast your vote to stop them.

Vote wisely.

Bob

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Not Well-Suited for Self-Defense?

As expected, the State of California filed an appeal of the U.S. Court of Appeals for the Ninth Circuit three-judge panel that upheld the ruling that the State’s ban on Large Capacity Magazines (LCM) was unconstitutional in the case of Duncan v. Becerra. Nothing about the request for a rehearing by an en banc panel was a surprise, from the arguments being made to the appeal being filed on the final day. California will do anything and everything to protect one of its signature gun control measures and bleed the opposition dry while doing it. And just because you’re not from People’s Republik of Kalifornistan doesn’t mean this case shouldn’t be important to you.

All of the materials, filings and rulings on this case are available at the link below. It’s worth your time to read and understand what is going on since California likes to export its bad, expensive and unconstitutional policies to the rest of the country.

There are a few things I found particularly interesting in the State’s Petition for Rehearing En Banc.

First, the State sees no reason or need for any civilian to have so-called large capacity magazines. In fact, the filing indicates “The record here demonstrates that LCMs are not well-suited for self-defense.” It rationalizes that Californian’s can have as many 10 round magazines as they want, and (currently) as much ammunition as they want.

The photo that accompanies this article is from a home security system in a Fremont, CA home invasion burglary on August 28, 2016. It shows five armed men coming into the house, at least one carrying a handgun with a magazine extending below the pistol grip, a LCM. Fortunately, the residents were not home at the time. Even if the resident was armed with a California 10 round magazine, he would most certainly have been killed in this encounter. In this burglary the homeowner was able to call the police while watching the burglary on his home cameras remotely. Unfortunately, the armed home invaders left before the police arrived and were not caught.

The State has never explained why a so-called LCM is not-well suited for self-defense, but it’s the exact opposite of the training and advise of every reputable self-defense instructor I’ve ever known, including my own. It has also never offered any explanation why 10 rounds is the magic, safe enough for civilians number, but 11 is way too dangerous.

Let’s also keep in mind that in some places like New York City, firearms that simply have the capability to accept a so-called LCM are banned. So, if even one magazine is made for it with a capacity over 10 rounds, the firearm itself is banned.

The State also references the Fyock v. Sunnyvale, a local California ordinance banning magazines with a capacity of more than 10 rounds, which was upheld by a three-judge panel, as a binding precedent.

There are several issues that come from Fyock, not the least of which is that California does not have a preemption law banning local jurisdictions from passing their own more restrictive firearm regulations. As we’ve seen in states without preemption, this results in a patchwork of laws throughout the state that are impossible for any law-abiding citizen to understand or comply with. Virginia recently removed its preemption for firearm regulations and now anti-gun cities are drafting unique and highly confusing laws regulating use and possession within its borders.

Fyock was also decided under what is known as Intermediate Scrutiny, which is what the State believes is the correct level for Second Amendment cases. Duncan’s ruling utilized Strict Scrutiny.

A quick note on Rational-Basis, Intermediate Scrutiny, and Strict Scrutiny

Under Rational Basis the government must have a legitimate interest and the law must be “rationally related” to the interest.

Under Intermediate Scrutiny, the government must have an important interest and the law must be substantially related to the interest.

Under Strict Scrutiny, the government must have a compelling interest and the law must be narrowly tailored to the interest.

Note that the likelihood of a law being overturned increases as the level of scrutiny increases. Few government laws survive a Strict Scrutiny test since they are generally far broader than need be.

The argument for the use of Strict Scrutiny review of Second Amendment cases has been going on for years. Government agencies don’t like that because it severely restricts their regulatory powers, something most of us would argue is appropriate in a case involving the Bill of Rights.

For the next step, the 11-member en banc panel to hear this will be randomly drawn from the Nineth Circuit Court of Appeals. While there has been significant progress in helping to balance the court with justices appointed by the current Presidential administration, it still has a 16 to 13 liberal slant. Of course, that ANY judge should be considered liberal vs. conservative is absolutely asinine. The law, the Constitution, the Bill of Rights should be interpreted by every judge each and every time WITHOUT regard for political party platforms, but that’s a topic for another time. For this case, the outcome will likely be decided by the draw instead of the legal arguments in the case.

Why is this case important? A successful appeal by the State reverses the initial District Court ruling and magazines with a capacity higher than 10 rounds are once again illegal in California. The only hope for a reversal comes from the United States Supreme Court which has not been willing to hear Second Amendment cases.

In the unlikely event of Duncan being upheld, the State will have to decide if it wants to risk an unsuccessful appeal to the Supreme Court where it has the potential to impact magazine bans around the country or find another way to restrict them in California.

However, in my opinion the most important thing this case points out is the importance of our local and state elections. Laws like this are enacted by the people we elect to office. When we elect gun control politicians, we enable them to restrict our Second Amendment protected rights and the only recourse we have is to have them overturned in the courts.

And guess what, you and I are paying for both sides of this fight. Our taxes pay for the lawyers to defend the laws that take away our rights and our dues and donations pay for the lawyers to try to get them back. The only ones who win regardless of the outcome are the lawyers.

Vote wisely this year.

Bob

Duncan v. Becerra

California Freedom Week V2 – NOT!

For a very brief period, law-abiding California residents were free from the draconian ammunition purchase restrictions imposed by Proposition 63. A federal judge ruled the ammunition restrictions were unconstitutional and issued an injunction. But alas, that freedom was quickly taken away. After being denied a stay from said federal judge, the State appealed to the Ninth Circuit who issued a stay the very next night. Of course, if this was about keeping ammunition from prohibited persons as the State argues, it would be one thing. But California’s motives and design behind their so-called “ammunition background check system” are more far reaching than they admit. And it is all designed to strip more of your rights away from you.

By the by, for those of you who don’t think this will impact you since you don’t live in California, think again. Ammunition restrictions are the future of gun control and every gun control extremist in every state wants it.

On Thursday, April 23^rd around 3:00 pm, United States District Judge Roger T. Benitez issued a preliminary injunction against the State of California in Rhode v. Becerra prohibiting the enforcement of the ammunition restrictions imposed by Proposition 63. This included the requirement for a background check for the purchase and transfer of ammunition as well as the restriction on the purchase of ammunition from out-of-state vendors delivered to the purchaser’s home.

It is worth noting this is the same federal judge who ruled against California’s so-called “large capacity” magazine ban in March 2019. For one week before Judge Benitez issued a stay on his own ruling, Californians were free to possess, sell, purchase, trade, give and most importantly, use standard capacity magazines. Conservative estimates place the number of magazines acquired by Californians at between one and two MILLION. While selling and purchasing standard capacity magazines is once again banned while the stay is in place, the possession and use of them is still allowed in the state.

In this case, Judge Benitez issued another masterfully worded 120 page ruling against the state, essentially picking apart the State’s argument piece-by-piece, calling out “onerous and convoluted” regulations that violate the constitutional right to bear arms. It’s lengthy, but it’s worth reading to understand the reasoning behind the injunction. A link to the document is at the end of this article.

But the State was ready this time. The following morning, the State filed a motion to stay the preliminary injunction with Judge Benitez. It also set a time limit of 3:00 pm that day, for Judge Benitez to issue a ruling or the State would consider an appeal to the Ninth Circuit. Judge Benitez denied this motion, again with a well-crafted rejection of the State’s argument. Not to be outdone, the State did appeal to the Ninth Circuit and a stay was issued at 9:54 pm on April 24^th. Thus the duration of the stay, and California ammunition buyers freedom, lasted only about 30 hours.

So why is this NOT about keeping ammunition out of the hands of prohibited persons? If that was the objective as the State insists, they would have adopted a simple check of prohibited persons similar to what most states use with NCIS (National Instant Criminal Background Check System). Instead, California chose to piggyback the existing DROS (Dealer Registration of Sale) system which is tied into a number of sub-systems including the error prone APPS (Armed and Prohibited Persons System). Other than creating a system with an error rate of 16.4 % and blocking over 101,047 law-abiding citizen purchases over 10 months, it allows the state to register each and every ammunition purchase to the buyer. Now why in the world would they want to do that?

To answer that, look no further than previously proposed legislation in California that was unable to be implemented as the system to support it was not in place, until now.

Limits on the amount of ammunition you can purchase in a given time period

California has long wanted to limit how many rounds you can buy in a day/week/month, etc. Cries of ‘You shouldn’t be able to walk in and buy an arsenal’ have been around for years. The state has successfully implemented limits on how many handguns and semiautomatic centerfire rifles you can purchase thanks to the DROS entries. Ammunition registration enables this.

Limits on the type of ammunition

California has outlawed the use of lead ammunition for hunting and has proposed that ban be extended for all shooting ranges. They’ve even proposed that only lead-free ammunition, as certified by the State DOJ (Department of Justice) be available for sale. In other words, think handgun roster for ammunition. Without a registration system for all approved ammunition, this would not be possible.

This also allows bans of other non-desirable ammunition such as so-called “assault bullets”, otherwise known as common defensive hollow point rounds, or ammunition in certain calibers such as 5.56, .223, 7.62×39 or 5.45×39, ammunition commonly used in AR or AK pattern rifles.

Limit ammunition purchases to calibers matching your registered firearms

Let’s say of all your firearms registered with the state, none shoot 5.56 / .223. So why then would you need to purchase ammunition in that caliber? The logical conclusion from the state is you have an unregistered firearm. Never mind that it’s possible and completely legal to have firearms that were never registered or even required to be registered now, but that means the state doesn’t know about it. By limiting your purchases to firearms registered in DROS, you can either not shoot that firearm, or you have to register it to get ammo for it.

Ammunition bans and restrictions are the new promised land in the world of gun control since firearms without ammunition are just expensive clubs. They also know this area is currently very lightly regulated and small, incremental steps to restrict and eliminate it, such as licensing ammunition vendors, restricting internet purchases with consumer direct shipments, background checks and registration will dramatically increase the costs and give them more control over how much ammunition you can have and use.

Of course, you can’t help but appreciate this short-lived ammunition law injunction being a cruel joke on so many levels. Not only did it only last for about 30 hours, but it occurred at a time when a lot of Californians were out of work and didn’t have any money, many of state’s guns stores were closed as non-essential, ammunition was scarce because of the panic buying over the last month and what was available was priced so high it wasn’t affordable.

As with all legal cases, this one will not play out for years to come. During this time, California resident’s Second Amendment rights will continue to erode and the only ones enjoying the ride will be the lawyers. The ONLY way to keep this from happening again in other states is to STOP electing people who will not protect our natural, Constitutionally protected rights.

Bob

https://michellawyers.com/wp-content/uploads/2020/04/2020-04-23-Order-Granting-MPI.pdf

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Goodbye California

You may have noticed the Odd Stuffing pages have been silent for a while. As some of you are aware, the Mrs. & I have recently moved out of the People’s Republik of Kalifornistan. The constant increase in prices, taxes, fees and oppressive laws aimed at the law-abiding while decreasing the consequences of violence and victimization of others, combined with the virtual elimination of the Second Amendment, had become too much for us. When the right opportunities came up for us we made the decision to join the hundreds of thousands of Californians to flee the state. Does this mean we are giving up on fighting for the Constitutionally protected rights in California? HELL NO!

On a personal note, it was a lot more difficult to move than we imagined. Not only does 25 years together and 20 years in the same house accumulate a lot of ‘stuff’, it also accumulates a lot of very, very close friends. And, as the Mrs. commented while taking one last drive around our neighborhood, we grew old here.

But since we’re not dead yet, we had to consider what is best for our future. Add to the issues listed above, California’s so-called “public safety blackouts”, known to the rest of us as the protect PG&E profit blackouts and businesses being left to fend for themselves against increasingly violent criminals with no hope of intervention by the police and courts. At the same time, your waitress is being arrested for giving customers a plastic straw without asking for it, but it’s okay to leave your used syringes everywhere. Not to worry; they’ll give you more to shoot up with for free. It’s illegal to not clean up after your dog poops in public, but it’s perfectly acceptable for you to poop on the street, sidewalk or any place else you want. In other words, California is train wreck and getting worse by the day.

Our new home is in the Land of Enchantment. It’s a beautiful state, rich in culture and tradition, with far more Second Amendment rights than are available to those on the left coast. But… that doesn’t mean it’s going to stay that way. With a Democratic Governor, Lieutenant Governor, Attorney General and majority in both houses of the legislature, you can be sure gun control will soon be on the agenda here.

While most of the people I have spoken to here agree that firearm rights are taken very seriously here, I’m sure not everyone is aware the New Mexico Attorney General signed a letter of support for California and Vermont’s magazine restrictions. If the New Mexico Attorney General thinks this is a really good idea in those states, how long do you think it will take before it’s a really good idea in New Mexico?

My observations of politics have shown me politicians have two main goals once elected to public office. Get reelected and get elected to a higher office. Everything they do while in office revolves on achieving those two goals. The only way they are going to do that is to tow the party line to get the party money. And when the party platform is to enact nationwide, draconian, do-nothing-for-public-safety gun control, that’s what they are going to do. Those who choose to be moderate and not support the gun control party line are soon facing very well funded challengers from their own party who will. That’s just the way party politics work.

So if you look at states that are ripe for the introduction of gun control laws, New Mexico starts rising to the top of the list. It will start slowly and cautiously as it always, but it will start. The top three low hanging fruit laws likely to be introduced first are Universal Background Checks (a ban on private party transactions), magazine capacity (reduced to the national gun control standard of 10 rounds) and so-called “red flag laws” (allowing families, employers, coworkers and the police to strip away your Second Amendment rights based on here say evidence in an ex parte hearing). Other more restrictive laws will follow in subsequent years once the ground has been broken. Then, it will be a slow but steady push towards full elimination of your rights and ability to defend yourself and your family.

Since we moved we’ve had some interesting reactions to people learning we moved from California. From what I’ve gathered, a lot of Californian’s have moved to New Mexico to flee the conditions there, then immediately started working to change New Mexico into the California they left. I’ve had to assure many people that while I moved FROM California, I’ll be doing everything in my power to not let the state change TO California.

Overconfidence in the current legal protections and traditions of the state is what has already doomed many formerly pro-Second Amendment states. Washington, Oregon, Colorado, Nevada and Vermont are all examples of not seeing the change coming, and now not being able to stop it.

How do you stop it? If you think the courts are the answer, they’re not. It’s a fool’s errand to believe that once a law has been enacted, it can successfully be drawn back. Of the thousands of gun control laws passed around the country, precious few are successfully appealed and reversed. The best way – the ONLY way to stop them is to prevent them from being enacted in the first place. And the only one who can do that is you.

Even if you are in the fiercest, gun loving, Second Amendment protecting part of the state, you still need to be fighting for your rights. That means getting involved in what is going on in your home town/city, county and state RIGHT NOW. If you haven’t called or written a letter to every one of your elected representatives recently, then how do they know what is important to you? You can count on the fact the gun control advocates have been speaking to them, a lot. Do you want that to be the only voice they hear?

Your rights are in your hands. If you don’t protect them, there is a slippery slope waiting that will turn your hometown into the third world living conditions currently spreading across California. Think it can’t happen here? Californians didn’t think so either.

Bob

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