magazine ban

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9th Circuit – Rules For You But Not For Us

October 1, 2023 by 3 Comments

After Judge Benitez ruled against the State of California on their magazine ban in Duncan v. Bonta, the state filed an emergency motion for a stay pending appeal with the 9th Circuit Court of Appeals. Normally this would have gone to a three judge panel for adjudication. But then again this is the 9th Circuit we are talking about.

Instead it is going to the original en banc panel as a “comeback” which they then granted a temporary stay of Judge Benitez’s ruling. This is the same panel that had ruled against Duncan in 2021. It was appealed to the Supreme Court. After they ruled on Bruen, the 9th Circuit ruling was vacated and the case was remanded to them for proceedings consistent with that decision. They punted it to the District Court, Judge Benitez ruled in favor of Duncan again, and now it is back in the 9th Circuit.

The en banc panel granted the emergency motion for a stay pending appeal. As the dissents make clear, this was highly unusual. Judge Patrick Bumatay said the 9th Circuit should have handled this like any other appeal but didn’t because it involved the Second Amendment. He went on to say that to his knowledge, “no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter.”

The dissent by Judge Lawrence VanDyke was brutal and should be read in it entirety. Start on page 5 of the decision embedded below. VanDyke had a very unusual background before joining this court. He was the Assistant Solicitor General of Texas and then the Solicitor General for both Montana and Nevada respectively. VanDyke starts off saying he agreed with Judge Bumatay’s concern about the irregularities with the en banc panel taking the case directly. The snark is strong with Judge VanDyke when he said the original panel would only give up control of the case “when it is pried from its cold, dead fingers.”

VanDyke makes the comparison with how the 9th Circuit handles this case with how many courts handled abortion cases pre-Dobbs. The normal rules were tossed out along with the norms of decision making. He called it “abortion distortion” and says the 9th Circuit suffers from the same malady with regard to Second Amendment cases.

Every court has its own rules including deadlines for when an appeal can be filed or an appeals court judge can request an en banc review of the original three judge panel’s decision. Everyone is supposed to follow these rules. That is except the 9th Circuit with regard to 2A cases. After the original three judge panel found in favor of Duncan in 2020, a 9th Circuit judge made the request for an en banc review. That is allowed under the rules but there are deadlines and the deadline for making the request was missed. As VanDyke notes, either the case should have stopped there or the entire court should have made the decision to change the deadline. Neither was done and a backdoor agreement was reached to bring up Duncan to the en banc panel. This was denied to two other cases including one involving the death penalty.

Judge VanDyke said the process used was illegitimate from the start and I would agree. We as a nation are supposed to operate under the rule of law. However, when the rules are freely ignored by the 9th Circuit, or any court for matter, in order to get to the outcome that is desired then the whole concept of the rule of law is brought into question.

H/T Todd V.

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Legal Gamesmanship In Illinois AWB Cases

January 30, 2023 by

While I was in Las Vegas at the SHOT Show, I listened to Alan Gottlieb of the Second Amendment Foundation discuss some of their 43 pending cases. He went into particular detail about the SAF and co-plaintiffs’ challenge to the recently passed assault weapon (sic) and magazine bans in Illinois. What was particularly interesting was the decision on which district of Illinois to file the case, Harrel et al v. Raoul et al, and the goal of being the first case filed challenging the new law. Alan said the Southern District of Illinois tended to be better which is why it was filed there. He also noted that if, as he expected, the cases would end up being consolidated the lead case would be Harrel v. Raoul as it was the lowest numbered case. Finally, he said that by the luck of the draw that the judge assigned to the case, Judge Stephen McGlynn, was appointed to the court by President Trump.

Since Harrel was filed on January 17th, two other cases were filed challenging the new Illinois ban. Furthermore, another case was moved from state court to Federal court at the request of the State of Illinois.

Barnett et al v. Raoul et al was filed on January 24th. The lead counsel is Paul Clement and the plaintiffs include the National Shooting Sports Foundation. This case is also being financially supported by the NRA according a post on ILA’s website. Filed the same day was Federal Firearm Licensees of Illinois et al v. Pritzker et al. The lead attorney in this case is California gun rights attorney Chuck Michel. Plaintiffs include GOA, Guns Save Lives, and Gun Owners Foundation as well as other individual and business plaintiffs.

Langley et al v. Kelly et al was originally filed in Circuit Court of the Second Judicial Circuit, Crawford County, Illinois. Kelly, the Director of the Illinois State Police, moved to have the case transferred from state court to the US District Court for the Southern District of Illinois. This removal was granted on January 23rd. Note however, that it has a higher case number than Harrel. This case as well as Barnett and FFL-IL were all originally assigned to Senior Judge J. Phil Gilbert who subsequently recused himself. Langley and FFL-IL has now been reassigned to Chief Judge Nancy Rosenstengel. She was appointed to the bench by President Obama. The Barnett case has, for the time being, been referred to a magistrate judge.

Under Rule 42(a)(2) of the Federal Rules of Civil Procedure the court can consolidate the cases if they involve a common question of law or fact. Given all four cases are challenging the same law, I think there would be grounds to do so.

Here is where it gets interesting and you start to see the legal gamesmanship. The State of Illinois through its filings in Langley is pushing to have the cases all consolidated under it as Chief Judge Rosenstengel, an Obama appointee, would be the judge hearing the case. The presumption is that an Obama appointee would be more favorable than a Trump appointee such as Judge McGlynn. Mind you, judge shopping is frowned upon.

From the state’s motion filed on January 26th:

This Court typically consolidates cases into the lower-numbered case, which is typically the earlier-filed case. In this instance, however, the present case was initiated in state court on January 13, 2023—before Harrel, Federal Firearms Licensees of Illinois, and Barnett were filed on January 17, 24, and 24, respectively—and removed on January 23. In comparable circumstances involving removed cases, this Court has consolidated into the higher-numbered case. See Spurgeon v. Pac. Life Ins. Co., 2007 U.S. Dist. LEXIS 106366, *4 (S.D. Ill. Feb. 6, 2007) (consolidating into the higher-numbered case because lower-numbered case may have been removed prematurely). Because this case was the first-filed in any forum, state or federal, Defendant Brendan Kelly respectfully requests that Harrel, Federal Firearms Licensees of Illinois,
and Barnett be consolidated here.

Thomas Maag, attorney for the plaintiffs in Langley, responded on January 27th. He first said:

The Defendant Kelly, who in the experience of undersigned counsel, rarely actually removes cases to federal court, due to the perceived fear of the state that doing so may waive sovereign immunity, did, in fact, remove this case to federal court, obviously thinking this Court a more favorable forum that its own state courts. That is Defendant Kelly’s right, but it is interesting.

Maag goes on to add that the longstanding precedent in the Southern District going back to the time it was part of the Eastern District of Illinois is, with few exceptions, to consolidate in the lowest numbered case which would be Harrel. He notes that the more substantive reason for doing this is to avoid judge shopping. I think a strong argument could be made that this is indeed what the State of Illinois is seeking to do.

He concludes that the plaintiffs in Langley are not taking a position on whether or not to consolidate. However, if consolidation were to occur, it should be “into the lower case number of file in this Court, which is 23-cv-141-SPM” which is the Harrel case.

To conclude, it seems obvious that the State of Illinois is is trying to game the system to get a more favorable judge. While the attorneys in Harrel, Barnett, and FFL-IL have not filed motions objecting to the Illinois motion, it would be my considered guess that they would prefer it be lowest numbered case (Harrel) with the original judge assigned to that case (McGlynn).

UPDATE: See my later post where Chief Judge Nancy Rosenstengel transferred this case and FFL-IL to Judge McGlynn.

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CRPA FAQ On Duncan Case

August 17, 2020 by

The California Rifle and Pistol Association has put together a six-page FAQ analyzing the 9th Circuit’s decision in Duncan v. Becerra. More importantly, it goes into detail on what is now legal and what still must wait for a court to act.

CRPA was the organizational plaintiff in the case. They were the ones who actually brought the case on behalf of Virginia Duncan and the other individual plaintiffs. The FAQ was put together by attorney Chuck Michel and his team who were the original attorneys on the case.

Whether you are a dealer, a California resident, or merely someone who wants to help out friends behind enemy lines, I think it is important to read this FAQ so that you stay legal.

The FAQ and legal analysis is found here.

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The Biden Gun Tax

July 10, 2020 by 2 Comments

If you own an AR or AK or anything remotely classified as an “assault weapon” (sic) or own a standard capacity magazine, then a President Biden would allow you to keep them. That is, provided that you registered each and every item with the Bureau of Alcohol, Tobacco, Firearms, and Explosives as a National Firearms Act item and pay the $200 tax for each and every item.

Used with permission.

Don’t believe me. Here is what it says on his campaign website.

  • Ban the manufacture and sale of assault weapons and high-capacity magazines. Federal law prevents hunters from hunting migratory game birds with more than three shells in their shotgun. That means our federal law does more to protect ducks than children. It’s wrong. Joe Biden will enact legislation to once again ban assault weapons. This time, the bans will be designed based on lessons learned from the 1994 bans. For example, the ban on assault weapons will be designed to prevent manufacturers from circumventing the law by making minor changes that don’t limit the weapon’s lethality. While working to pass this legislation, Biden will also use his executive authority to ban the importation of assault weapons. 
  • Regulate possession of existing assault weapons under the National Firearms Act. Currently, the National Firearms Act requires individuals possessing machine-guns, silencers, and short-barreled rifles to undergo a background check and register those weapons with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Due to these requirements, such weapons are rarely used in crimes. As president, Biden will pursue legislation to regulate possession of existing assault weapons under the National Firearms Act. 
  • Buy back the assault weapons and high-capacity magazines already in our communities. Biden will also institute a program to buy back weapons of war currently on our streets. This will give individuals who now possess assault weapons or high-capacity magazines two options: sell the weapons to the government, or register them under the National Firearms Act.

You need to read the whole thing. It is compendium of every item that you could possibly think of on the gun prohibitionists’ wish list.

And by the way Joe, the Second Amendment has nothing to do with duck hunting.

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From Our Friends At VCDL

February 17, 2020 by

Now that the Virginia House has approved HB 961, it goes to the Senate for hearings. This bill would ban “assault weapons” (sic), standard capacity magazines, suppressors, and bump stocks.

The hearings on the bill start today.

From VCDL:

Turnout needed!  Monday, February 17, at 8 am, the Senate Judiciary committee is going to hear HB 961, Delegate Mark Levine’s “assault weapon”/higher-capacity magazine/suppressor/ bump stock ban!

This is a key opportunity to defeat HB 961 and there is a good chance we can do so!

BREAKING:  VCDL has heard there will be an attempt to modify HB 961 to help save it from being defeated.  HB 961 is a disaster and cannot be fixed.  It must be killed in its entirety!

I suggest getting there early, as we will hopefully flood the room and beyond.

After going through the metal detectors, continue straight ahead and go through the glass doors.  Make an immediate right, walk down the hall, and make another immediate right to get to Senate Committee Room A.

Here’s what the current version of HB 961 does:

Makes possession of a large number of semi-automatic guns, classified as an “assault weapon” by this bill, a felony.  This includes many popular rifles, handguns, and shotguns!  You can keep any “assault weapons” you currently have, but you can’t buy any more.  The wording is so poor that you probably won’t be able to even fix a broken “assault weapon,” as each part is classified as an “assault weapon”!  Gun dealers in Virginia won’t be able to sell an “assault weapon” or any parts for one to anybody, include to gun owners in other states.  This will do severe financial harm to Virginia gun dealers. 

Bans magazines that hold more than 12 rounds of ammunition.  There is NO grandfathering!  Possession of such a magazine (keeping it at home only) after January 1, 2021 will be a Class 1 misdemeanor.  However, transporting such a magazine is a felony!

Bans suppressors, making possession of one a felony.  You can keep any suppressors you currently have, but you cannot purchase any more and you won’t be able to fix them if they break.

Bans bump stocks.  Any that you have must be destroyed by January 1, 2021.  Possession of one after that date is a felony.

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“Murphy Mags” And How To Avoid Arrest In New Jersey

December 13, 2018 by 8 Comments

As of Monday, December 10th, if you possess a standard capacity magazine that holds more than 10 rounds in the state of New Jersey, you could be found guilty of a Class 4 Felony, spend up to 18 months in prison, lose your voting rights, and be subject to a lifetime ban on firearm ownership. Your options were to destroy the magazines, turn them into police, or remove them out of state. There was no grandfathering under the law nor was there any compensation for what arguably is a taking.

Gun rights attorney Evan F. Nappen is the acknowledged authority on New Jersey gun law. He has just written a guide on what to expect from the police and prosecutors and how to protect yourself.

Here are the action steps he encourages all New Jersey gun owners to take:

Action Items:

  1. Make sure that your friends and family are aware of this potential threat.
  2. Make sure that your friends and family are aware of the implications of talking with the police and consenting to searches.
  3. Make sure that you do not have in your possession any Murphy Mags or other prohibited items.
  4. Make sure that you, your family and your friends have the mindset to stand on your rights!

 While he thinks police raids are not likely to occur and that police will use other means such as computerized databases, demand letters, and the like, there are scenarios and reasons, in his opinion, where a police raid, with or without a warrant, might take place.

  1. Some highly publicized mass shooting occurs, and the knee-jerk, politically expedient reaction is to go after Murphy Mag possessors.
  2. Murphy’s failure to aggressively enforce his ban, gives his political challengers the opportunity to call him out on it. There is already pressure on Murphy to explain how he intends to enforce the ban. Breitbart News also reached out to Murphy’s press secretary, Daniel Bryan, about enforcement of the ban. He confirmed that the Governor “…had not ruled out house-to-house enforcement of the ban either.”
  3. New Jersey has a computerized database of registered gun owners & their registered handguns which includes make and model. Many of these handguns came with Murphy Mags. For example, 15 round magazines came standard with the Glock Model 19, Beretta Model 92 and SIG Model P226, just to name three commonly possessed handguns.
  4. New Jersey has a long history of abusing gun owners, creating “gun law victims” (destroying people’s lives with arbitrary gun laws) and undermining Second Amendment rights.
  5. New Jersey has a liberal news media which actively acts as the propaganda arm for the anti-gun-rights movement.
  6. New Jersey law enforcement will obey orders and enforce the law, rather than lose their jobs & pensions.

I suggest reading Evan’s entire guide posted to his website. Moreover, if you live in New Jersey, I suggest studying it carefully, plan your response in advance, and make your family including kids aware of the family plan. As Michael Bane said on his podcast today, the law isn’t enforced until is. Don’t be that guy who Murphy uses as the example to cow the rest of New Jersey gun owners into compliance.

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Colorado Bill To Repeal Standard Cap Mag Ban Fails

April 26, 2016 by 158 Comments

Earlier this month, the Colorado State Senate passed SB16-113 which would have repealed the ban on standard capacity magazines and would have repealed the requirement that standard capacity magazines manufactured in Colorado have a date stamp on them.

The vote to pass the bill in the Senate was 20 aye and 12 nay with two excused. It had previously passed out of committee on a 3-2 party line vote.

While the Senate is controlled by the Republicans, the House is the domain of the Democrats. While there was some hope that the Democrats might allow the bill out of committee, that hope was dashed last night.

The House State, Veterans, and Military Affairs Committee voted on the bill last night. The first vote was on a motion to send the bill to the House floor for consideration by the full House. This was defeated on a party line 4-5 vote. Then the committee voted 5-4 to postpone consideration of the bill indefinitely. This means the bill is dead for all practical purposes.

Coloradans can thank Committee Chair and House Majority Whip Su Ryden (D-Arapahoe), Rep. Mike Foote (D-Boulder), Rep. Dianne Primavera (D-Boulder/Broomfield), Rep. Max Tyler (D-Jefferson), and Rep. Susan Lontine (D-Denver) for this bill’s defeat. These five were good little minions for Mike Bloomberg and did as they were told. I’m sure the criminal element, especially home invasion specialists, were pleased with this result. As to your average, law-abiding, tax-paying Colorado gun owner, that is another story.

I want to thank my friend Laura Carno as well as attorney David Kopel for taking the time to testify in favor of the bill before the Senate State, Veterans, and Military Affairs Committee when it held hearings.

H/T Jenna Meek

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A Loss In Connecticut

January 31, 2014 by 5 Comments

Senior District Court Judge Alfred V. Covello ruled in favor of the State of Connecticut in upholding their assault weapons ban and other restrictions. The case, Shew et al v. Malloy et al, was brought by the Connecticut Citizens Defense League and others challenging the law enacted after the Newtown shootings.

Gun control advocates were buoyed Thursday by a federal court decision in Hartford that upholds Connecticut’s toughest-in-the-nation assault weapons ban, calling it a constitutionally valid means of balancing gun rights and the government’s interest in reducing gun violence.


“The court concludes that the legislation is constitutional,” senior U.S. District Judge Alfred V. Covello wrote in a decision published late Thursday. “While the act burdens the plaintiffs’ Second Amendment rights, it is substantially related to the important governmental interest of public safety and crime control.”

Just quickly glancing over the opinion that can be found here, it appears that Judge Covello used intermediate scrutiny to decide in favor of Connecticut and relied upon the 2nd Circuit’s ruling in Kachalsky v. Cacace.

From the article in the Hartford Courant, it appears that Judge Covello bought into much of the anti-gun nonsense that Connecticut used to defend the law.

Covello, agreeing with the plaintiffs, concluded that the weapons and magazines are commonly owned and legally used in Connecticut and elsewhere. But he parted company with the plaintiffs when he wrote that the state’s ownership and sales ban is justified when the government’s goal of reducing violence is measured against the ban’s impingement on Second Amendment rights.

The Second Amendment rights of gun owners are adequately protected by the large number of alternate weapons that can be used for protection, hunting and sports events, he wrote.

On several occasions, Covello adopted the state’s arguments that assault weapons are designed, not for cosmetic purposes, but for “lethality.” And he referred to an affidavit by a state expert who asserted that “Connecticut’s bans on assault weapons and large capacity magazines, and particularly its ban on (large capacity magazines), have the potential to prevent and limit shootings in the state over the long run.”

Covello was appointed to the bench for the District of Connecticut by Pres. George H. W. Bush in 1992.

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ISRA Issues Urgent Alert On Mag Ban Legislation

May 10, 2013 by 2 Comments

The Illinois State Rifle Association issued an urgent alert this morning regarding moves by State Senator Antonio Munoz (D-Chicago) that, if passed, would result in the banning and confiscation of all magazines over 10 round capacity.

Anti-gun Chicago Sen. Antonio Munoz today filed an amendment to SB1002 that would result in the banning and confiscation of all magazines over 10 rounds.

THE BOTTOM LINE: If Munoz’s bill passes, you’d go to jail longer for having a standard AR-15 magazine in your own home than you would if you robbed a liquor store.

HERE’S WHAT YOU NEED TO DO TO PROTECT YOUR GUN RIGHTS:

1. Immediately contact your State Senator and politely tell the person who answers the phone that you are a law-abiding Illinois firearm owner who opposes SB1002. Advise the person further that you would like the Senator to vote against SB1002 should it come to the floor.If you do not know who your State Senator is, the Illinois State Board of Elections has an interactive search page here:
www.elections.state.il.us/DistrictLocator/DistrictOfficialSearchByAddress.aspx

If you already know who your State Senator is and just need the contact info, you can find that here: www.ilga.gov/senate/.

2. Pass this alert on to your friends and family; tell them to make calls as well.

3. Post this alert to any and all Internet blogs and bulletin boards to which you belong.

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Interesting Interview With Duane Liptak Of Magpul

March 21, 2013 by 16 Comments

Cam Edwards of NRA News interviewed Duane Liptak of Magpul yesterday after Gov. John Hickenlooper (D-CO) signed HB 1224 into law. Mr. Liptak is the Director of Product Management and Marketing for Magpul.

Mr. Liptak had a number of interesting comments during the course of the interview. First, Magpul will be going with a multi-state, multi-location manufacturing approach. While they haven’t released just where they are going, certain sites have already been selected. They plan a phased move out of Colorado with the magazine manufacturing being the first part of their company to move for obvious reasons.

When asked about their current employees and the impact the move will have on them, Mr. Liptak said that many of the current employees had expressed a desire to move with the company to the new locations. He seemed rather gratified by this loyalty of the employees to Magpul.

Magpul met with a number of state legislators during the fight against HB 1224. While Magpul presented facts and legal opinions as well as stressing the economic repercussions of the bill, this didn’t seem to make any headway with a number of the Democrats. Mr. Liptak noted that every time they went to the state capitol, they always ran into lobbyists from Bloomberg and MAIG. He said they were everywhere. It is a sad day when a New York billionaire can buy a western state legislature so easily. It reminds one of the railroad barons in Frank Norris’ The Octopus so dominated California of the late 19th century.