Under intermediate scrutiny, “[i]t is the legislature’s job, not [the courts’], to weigh conflicting evidence and make policy judgments.” Pena, 898 F.3d at 980 (quoting Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 99 (2d Cir. 2012)). Based on the summary judgment record, and the decisions of the six federal circuit courts upholding ten-round LCM restrictions, section 32310 is constitutional under the Second Amendment.
Xavier Becerra
Attorney General of California
October 7, 2019
APPELLANT’S REPLY BRIEF
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
____________________
VIRGINIA DUNCAN, RICHARD LEWIS, PATRICK LOVETTE, DAVID MARGUGLIO, CHRISTOPHER WADDELL, AND CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., A CALIFORNIA CORPORATION, Plaintiffs and Appellees,
V.
XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; AND DOES 1-10, Defendant and Appellant.
[See all the court filings in this extremely important case.
Interesting claim. What appears, to this non-lawyer, to be the claim is that if the standard of review is “intermediate scrutiny” then no constitutional protection exists. It’s open season on whatever, supposedly, protected right the legislature takes aim at.
It would appear such decisions and thought processes are in need of a serious reset.—Joe]
As has been expressed before. If I put a noose around his neck and restricted it by 2/3. Would I be stopping him from moving around and being all the communist he can be? Intermediate scrutiny would say no. I’m also positive that comrade Becerra would disagree.
I sure Mark Twain mentioned something about not arguing with Idiots. As they would drag you down to their level and beat you with experience! Such seems to be the case. As paid asses in California try to twist words, bring up passed decisions as proof of something. And on, And on it goes.
See what trying to be reasonable with the children gets you?
No, 30 round magazines are made for our convenience. It matters little what the occasional criminal might use them for. Just like my car. And so many other things that are necessary to society. What some politician in California thinks be damned! The fact that the covenant under which Mr. Becerra gets his authority thought it important enough to tell him he has no standing in the matter. Should be prima facie enough for him to stare decisis.
Or be hanged for his hypocrisy! (One only needs a small amount of grey matter to know what politicians would do if the words, Shall not be infringed, were attached to their own power.)
Just like our right to self defense. Shakespeare’s dictum of what to do with lawyers has stood the test of time!
Published in /Reason Magazine/ in 2016 by David Kopel (an attorney related to the online group led by noted Second Amendment law authority Eugene Volokh) who also writes for the Washington Post, the article reviews the use of intermediate and strict scrutiny, and a “two-part test” that has emerged from the Third Circuit for 2A cases.
The operative sentence in the article is as follows: ‘For example, strict scrutiny requires proof that the law is the “least restrictive alternative.” In intermediate scrutiny, the government need only prove that there are no alternatives which would burden substantially less of the rights of law-abiding citizens.’
The hope in my mind is that the circuits continue to clash on this interpretation for LCM; the 4th Circuit (MD, VA, WV, NC, SC) has applied Strict Scrutiny in a case in Maryland that set precident in that circuit regarding the MD Firearms Safety Act (FSA) which banned AR-15’s and AK-47’s and included the ’10-round magazine limit’ referenced as LCM (so-called large capacity magazine). So, in the these states that does not follow the 2nd, 3rd, 9th circuit’s interpretation and use of intermediate scrutiny towards LCM.
The 2nd Circuit (NY, VT, CT) has not been consistent in application of intermediate scrutiny in 2A cases, which leads to this…
The one 2A case currently before SCOTUS is /New York Rifle and Pistol Association/ v. /City of New York/ and plaintiffs are seeking establishment of the ability to transport (carry, i.e. bear arms) with respect to (wrt) intermediate vs. strict scrutiny. Whether this will somehow scale to include LCM restrictions is unknown, but in my view unlikely. NY State and NYC changes the law when SCOTUS took interest, and attempted to make the case moot, but SCOTUS took the case because the 2nd Circuit held NY transport restrictions previously in effect were constitutional, and with knowledge that in NY, there is no guarantee the legislature would not then move to apply future onerous requirements on the right to bear arms outside of the home (eg a transportation license, or per-transport advance notification and fee, transportation safety training, approved transportation safety containers, etc.).
The 9th Circuit has applied the lowest standard “rational basis” in Teixeira, which dealt with limits and zoning in Alameda County and the right to sell firearms. In the glorious People’s Republic of California (where I reside), sellers are not protected should a locality ‘not want their kind’ doing business in their neighborhoods. SCOTUS denied the Petition for Certiorari in this case, so, Sacramento, LA, SF and other metropolitan areas are free to decide whether ‘undesirable’ businesses that sell firearms are permitted. This ruling sets precedent in the 9th Circuit (CA, AL, HI, WA, OR, MT, ID, NV, AZ).
In 2018, the 6th Circuit (MI, OH, KY, TN) established in that Circuit in /Tyler/ v. /Hillsdale County Sheriff’s Department/ required strict scrutiny in the case where a plaintiff had been committed for observation many decades prior, but had never been adjudicated mentally defective. He was denied the purchase of a firearm due to the prior commitment, but this was overturned upon appeal.
This case bears note in relation to the so-called “Red Flag” or gun violence restriction orders (GVRO) in CA, and the extreme risk protection orders (ERPO) now popping up across the US, which started in Florida (11th Circuit) following the Parkland High School Mass Murder by a mentally unfit young adult, that resulted due to long standing lapses in enforcement and a pre-existing bias in the school system and local police to ignore the many episodes of violence the shooter displayed prior to the mass murder, the shooter was able to purchase an AR-15 with non-LCM 10-round magazines, and commit murders.
A good read on Parkland is ‘Why Meadow Died: The People and Policies That Created The Parkland Shooter and Endanger America’s Students” Andrew Pollack Post Hill Press.
A read of the Florida EPRO “Red Flag” law implemented afterwards indicates it has safeguards and process requirements tied to the Baker Act which is fully consistent with SCOTUS decisions on the arrest and commitment for observation of individuals. If the person is deemed in a court of law of sound mind at the end of the 72 hour commitment observation period, confiscated firearms are by statute required to be returned to the owner.
If at the hearing there is sufficient evidence (not the lowest ‘Credible Evidence’ standard, but rather the intermediate scrutiny “Probable Cause” standard, one can argue that coupled with strict time limits for process, this would be a defensible, narrowly defined law, that could not otherwise be achieved through less onerous means.
Other States have taken license and drafted EPRO laws with no such safeguards (this is not a bug, but a feature). In California (9th Circuit) Sacramento in legislative session after session relaxed the CA GVRO law to include incentives to delay process, and to expand the classes of individuals that can file a CA GVRO.
There are currently no statutory protections in CA law for Citizens who are knowingly falsely accused by an accuser, as there is currently in the Florida EPRO law.
So, if you have a nasty divorce, then by all means file a GVRO against your spouse and have the Gendarme fetch your spouse’s firearms in vindictive style.