(1250 words)
This is another example of the state twisting and bending to have a small chance of winning.
Given that the appeal is to the Ninth Circuit, they will get the stay they are requesting.
In 1999, California passed a “one gun per month” or OGM law. It is actually difficult to track because it has automatic expirations built in. Each time it is reinstated, it gets worse.
The current incarnation hinders the purchasing of any firearm, completed frames or receivers, or firearm precursor parts.
In other words, this law could limit you to just one chunk-o-aluminum per month.
This was challenged before Bruen. The Heller, McDonald, Caetano, Bruen and other Second Amendment cases decided by the Supreme Court required no discovery and no experts. This is because the question is all legal.
The courts are the experts. The lawyers bring the arguments, the courts follow the law.
If a court tells you that it is qualified to do historical analysis of “the historical tradition of gun regulation” they are admitting they are incompetent.
The job of a lawyer or judge is to know the law. If a court rules on anything, they have examined a historical tradition. This is their job.
On March 11, 2024, the district court issued an order denying the state’s request for summary judgement and granting the plaintiff’s (good guys) motion.
The Attorney General satisfies that standard.
The proposed course of conduct here—purchasing more than one firearm from a licensed firearms dealer within a thirty-day period—does not prevent individuals from “keep[ing]” or “bear[ing]” arms and thus does not fall within the scope of the Second Amendment. The OGM law is the exact
type of “condition[] and qualification[] on the commercial sale of firearms” that the Supreme Court has endorsed as “presumptively lawful.” Heller, 554 U.S. at 626-627, 627 n.26; see also
Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring). And even if this Court were to assume that the OGM law implicates rights protected by the plain text of the Second Amendment, the law is consistent with our Nation’s historical tradition of firearm regulation. At a minimum, this case raises serious and substantial legal questions justifying a stay. And the equitable considerations overwhelmingly favor preserving the status quo during this appeal. California residents will remain able to purchase any number of firearms so long as they comply with the 30-day waiting period, and an unlimited quantity of ammunition. But without a stay, individuals prohibited from possessing firearms will gain a new avenue of obtaining firearms in California— before this Court has had a chance to resolve the questions presented by the State’s appeal.
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Nguyen v. Bonta, No. 24-2036 (9th Cir.)The right of the people to keep and bear arms shall not be infringed.
To INFRI’NGE
- To violate; to break laws or contracts.
- To destroy; to hinder.
—
Samuel Johnson, Samuel Johnson’s Dictionary: infringe (1773)Emphasis added.
The concept of ancillary right is well established. The case most commonly cited is —Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983). To bear arms, I need to be able to keep them. In order to “keep” arms, I need to be able to acquire them.
If my ability to acquire arms is hindered, such as an arbitrary limit on the number of purchases, then my right to keep and bear arms has been infringed.
This satisfies the plain text of the Second Amendment.
The Supreme Court has stated that once the conduct implicates the plain text of the Second Amendment, that conduct is presumptively protected.
Notice that word, “presumptively”. The state argues that just because the conduct is presumptively protected does not mean that their infringement is unconstitutional. They can present arguments that might overcome that presumption.
Just like a person charged with a crime is presumed innocent until proven guilty, the law is presumed unconstitutional until the state proves it is constitutional.
The burden rests fully on the state to provide that proof.
While the state is arguing that things that are “presumed” are not actually, they are arguing that a bit of dicta in Heller fully protects their infringing regulation. “Presumptively lawful” means that it is presumed. It is still open to challenge, and when it is challenged, the state has the burden to prove a historical tradition of firearms regulation.
The state resorts to redefining words, First, the OGM law does not implicate conduct protected by the Second Amendment’s plain text because it does not prevent law-abiding citizens from keeping or bearing arms for self-defense.
—Nguyen v. Bonta, No. 24-2036
If the regulation infringes, then it implicates the Second Amendment. The regulation does not need to prevent, it merely needs to hinder. If the person is a part of The People, then they are protected. They do not need to be in the subclass of “law-abiding” nor “citizen”. Remember, there are many aliens that are here legally who are part of the national community.
Finally, the right is to keep and bear arms, not to keep and bear arms for self-defense.
While the Heller opinion does reference self-defense, it does not restrict the meaning of the Second Amendment.
Some wishful thinking by the state:
The district court concluded the OGM law implicates protected conduct because the Second Amendment is not “limited to possession and acquisition of a single firearm, or that the acquisition of additional firearms is inherently subject to additional limitations.” Order 15. This misconstrues the scope of the OGM law. The law does not impose any numerical limit on the number of firearms that California residents may acquire and possess. In other words, the OGM law does not prevent any individual from keeping and bearing arms, and therefore does not implicate the plain text of the Second Amendment.
—id.
When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
—Lewis Carroll & John Tenniel, Through the looking-glass, and what Alice found there (Macmillan Children’s Books 2. [Dr.]; Repr ed. 1997)
Infringe means to destroy or to hinder. Not “prevent”.
Which brings us back to “presumptively lawful regulatory measure”. This is dicta. Anybody reading this passage honestly understands that the Supreme Court is saying that they have not looked at the question of the constitutionality of commercial sale of arms. For the moment, in that particular case, they are going to presume it is lawful.
This means that it is open to being challenged.
If it is challenged, then the challengers (plaintiffs) have the burden to prove that the plain text of the Second Amendment is implicated.
Is their conduct hindered? Yes. Does their conduct have anything to do with keeping or bearing arms or the ancillary actions associated with keeping or bearing arms? Yes. Then the burden shifts to the state to prove this Nation’s historical tradition of firearm regulation that matches.
That is what Bruen said, that’s what Heller said.
—
Duncan v. Bonta, 19 F. 4th 1087 (9th Cir. 2021)—
ECF #20 Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)—
Caetano V. Massachusetts, 194 L. Ed. 2d 99 (2016)—
District of Columbia v. Heller, 467 U.S. 837 (2008)—
Minneapolis Star, 75 L. Ed. 2d 295—
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)—
Staples V. United States, 128 L. Ed. 2d 608 (1994)—
United States V. Miller, 307 U.S. 174 (1939)—
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Bibliography
Nguyen v. Bonta, No. 24-2036 (9th Cir.)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
Caetano V. Massachusetts, 194 L. Ed. 2d 99 (2016)
Duncan v. Bonta, 19 F. 4th 1087 (9th Cir. 2021)
Lewis Carroll & John Tenniel, Through the looking-glass, and what Alice found there (Macmillan Children’s Books 2. [Dr.]; Repr ed. 1997)
Samuel Johnson, Samuel Johnson’s Dictionary: infringe (1773)
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