First, each day judgement is delayed is another day Plaintiffs are denied the exercise of their right to choose common magazines for the fundamentally important purpose of self-defense. Denial of a fundamental right is irreparable injury—even if for a moment.
This ongoing constitutional harm is no less severe simply because, as the State argues, the exercise of that right has already been prohibited for two decades. Mot. 9:26-10:3. In fact, it perhaps makes the continued denial of the right worse.
Anna M. Barvir
April 3, 2019
VIRGINIA DUNCAN, et al., v. XAVIER BECERRA
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION TO STAY JUDGMENT PENDING APPEAL
[And yet, the stay was granted.—Joe]
I’m not happy that he stayed his own ruling.
That said, he did it in such a way that there was still time to place an order if one hadn’t already, standard mags were still grandfathered and (most importantly) those who had placed orders didn’t immediately become InstaFelons(tm). Had he refused to issue the stay, I believe it’s highly likely the 9th Circuit would have done so in short order, and on much less amenable terms.
While I’m not privy to his reasoning, based on his eloquence and thoughtfulness expressed in his ruling, I expect he felt this would be the least bad outcome CA gun owners could expect from a stay that was inevitable in any case.
I agree on every point.
Well, he did a stay, but the 5 days before the stay was implemented makes it impossible to prosecute anyone.
In order to prosecute, the state will have the burden of proving the magazines (which are not serialized) were NOT acquired during the time in question. Even obviously used magazines that are obviously manufactured long ago could have been acquired during the stay. The only magazines that could be prosecutable are those that began manufacture/sale after the date of the stay.
Even a more complete 9th Circuit stay couldn’t enable the prosecution now because those that bought or had the magazines during that five day period did so when it was legal, and you can’t ex post facto that into illegality. Well, not without violating another Constitutional protection, but we already know the state of California doesn’t care much about those.
Your right, and ” Ex post facto”, is exactly what Trump’s bump stock ban is setting the stage to get rid of.
It’s the main point that no one seems to talk about. Or argue in court. Banning something shuts down the industry, but doesn’t remove the “problem”. only violating ex post facto can do that. The left has been at that problem for a long time. But Trump is delivering the holy grail. let some bureaucrat say a piece of a piece of plastic is a “machine gun”. ban it. then make you destroy it. magazines are just another piece of plastic, that allow you to shot “full auto”. if they can make that stick, there’s nothing safe from the communist. they will apply it to everything they find offensive.
Think it can’t happen? I just had a real estate lady tell me. before the home can sale, the wood stove had to be removed and proven Destroyed! That’s just the start of the rabbit hole.
I don’t think it is an ex post facto case (IMNAL!). Ex post facto would be if they made the purchase of the stock prior to the passage of the law (or regulation) a crime. For example suppose a law passed and goes into effect on April 1 2020. The law says you can be prosecuted if you purchased gun before April 1st 2010, ten years earlier. That would be ex post facto. There is no way you could have known that you were committing a crime when you made the purchase and hence it is impossible to avoid prosecution.
In this case you have the ability to comply and avoid prosecution.
A case can be made that it is an uncompensated taking. But I think there is precedence (IMNAL) for recreation drugs being declared contraband and no compensation being made.
Lawyers, please make appropriate corrections here.
I certainly could be wrong. (it happens a lot). But I was under the impression ex post facto was the reason objects were “grandfathered” in. It would most certainly is an illegal “taking”. them making you destroy your property.
Here, once again we find ourselves living life by the reasonableness of lawyers. I don’t believe it will end well.
I’m pretty sure the grandfathering was so they wouldn’t have to compensate for the taking (and it would be less likely to get people shooting the SOBs).
As is stated in many a contract; “Failure to enforce any provision in this agreement does not render such provision null and void”, or language to that effect. Thus; failure to enforce the second amendment does not in any way alter or abridge the second amendment.
The longer the violations and infringements continue, the greater the obstinacy of those who flout the Law of Liberty, the more severe will be the judgment. There will have been more injury, more compensation due, and all the more penalty and interest accumulated, as it were.
Judge Benitez isn’t stupid, and he isn’t pandering to the AG of California. I think Judge Benitez bent over backwards to make sure his ruling is upheld on appeal, and is upheld later at the Supreme Court. The stay was granted pending appeal – meaning the judge has given every deference to the existing law that he, the judge, just declared unconstitutional in a devastating critique of a decision, which dismantled very decisively every single argument made by the plaintiffs. This temporary stay removes the only argument left to the CA Attorney General, judicial bias/activism, after every other antigun/antimag argument made in court was destroyed in the actual decision by the judge. Based upon the facts of the case as decided by the judge, the appeals court will now have a very, very hard time doing anything other than affirming the judge’s decision.