B.L.U.F. The 2008 Heller case was a huge win for us. Yet somehow it didn’t result in the changes in infringements we expected. This is one of the cases we lost which was used to keep infringing regulations in place.

Why is this case important?

This case is important because this is one of the circuit level cases cited in multiple Second Amendment cases to support the use of intermediate scrutiny. The other commonly cited case is Kolbe v Hogan which was decided in the 4th circuit court.

These two cases came post Heller. As discussed multiple times in previous articles, when a case is decided that puts the brakes on for some sort of infringement, the infringers read through those opinions with a fine tooth comb looking for something to hang their infringements on.

Prior to Heller cases were heard and dismissed for lack of standing. Those same cases, post Heller came back through the courts and the state had new arguments to support their infringements that fit within the framework set out in Heller.

We’ve all had this type of argument. They say something you disagree with. You counter with your argument. They bring up supporting evidence and you counter. You win because you have a better grasp of the facts and reality. They immediately tell you that they didn’t have the position they had because of the reasons they just argued unsuccessfully with you, no it is this other reason.

LCM in Sunnyvale California

After Heller the states didn’t have the same knee jerk reaction at the legislative level that they did after Bruen, instead the issues were fought in court. In court the state through plate after plate of spaghetti at the wall to see what would stick. As soon as one piece stuck, the rest of the infringing states incorporated that argument into their own building up case law to the point where the Heller opinion had been all but neutered.

Fyock v. Sunnyvale came about because the city of Sunnyvale decided to “do something” and passed an ordinance banning Large Capacity Magazines.

The history of LCM bans in California started with the federal “Crime Control Act” of 1994. Part of the CCA was the AWB. There was also a LCM ban as part of that. In 2000 California put into place a ban on the manufacture, sale, purchase, transfer, and receipt of LCMs. They did not ban the possession of LCMs.

They didn’t feel the need to for some reason.

In 2004, the CCA sunset ending the federal AWB and LCM ban.

The state and the Ninth Circus court declared that this created a “loophole” where people in California could possess LCMs even if they couldn’t get new ones.

In 2013, the city of Sunnyvale had a citizen driven initiative on the ballot to ban the possession of LCMs. It passed.

The city justified this ban based on “recent mass shootings” and in recognition of the “violence and harm caused by and resulting from the intentional and accidental misuse of guns.”.

The Courts starting position and “the question”

The ordinance provides:

The court acknowledges that there are exceptions for certain classes of people. I’m sure there is a lawyer out there that can find the part of US Code that prohibits discrimination based on what job you have but I don’t have the google foo to find it.

With this ordnance going into effect on 2013-12-06 the residents of Sunnyvale had until 2014-03-06 to divest themselves of their LCMs.

Here the Ninth Circuit court dodges the question and puts responsibility back on the district court for the determination of the merits of the case. Instead they rule on how the district court made its determination.

We saw this in Antonyuk II when the Supreme Court denied cert. until the Second Circuit Court has heard the appeal. The opinion written by Alito with Thomas concurring said as much. The Supreme Court declined to hear the appeal until such time as the lower courts had finished their work.

To wit:

The Court then explains that they intentionally do not address the merits of cases being appealed at this stage because they don’t want to clue the parties into what they believe the merits are prior to the case being heard and evidence being given.

What needs to happen to get a preliminary injunction

The Court defines what it required to obtain a preliminary injunction:

Per normal, the court stops its analysis as soon as it can. They do not analyze how much harm the plaintiff will suffer, whether the hardships tip in his favor, nor if the preliminary injunction is in the public’s interest. The party asking for the preliminary injunction has to meet all four parts in order to prevail.

In many Second Amendment cases prior to Bruen the court would find for the plaintiffs(good guys) for the first 3 and then decided that the public interest precluded them from granting the preliminary injunction.

Since this is a post Heller decision, where the Supreme Court confirmed Second Amendment has “the core lawful purpose of self-defense” and “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. quoting Heller the inferior courts must determine if the infringement is within the scope of the Second Amendment and regulation of the right in keeping with the text and history of the Second Amendment is permissible.Id.

Here the court confirms what we knew, that Second Amendment cases needed to be judged by text and history.

The court then goes on to reference another case to justify intermediate scrutiny. Again, self references seem to abound in law. We decided this once before so we won’t look at this issue again sort of thing.

US. v. Chovan as support for Fyock v. Sunnyvale

Here the Ninth Circuit court states that the right to keep and bear arms is not part of his core civil rights. Note that all of the cases the cite are prior to Heller. This means that anything they had to say about core civil rights and the Second Amendment are moot.

The Court attempts to downplay the strength of the Heller opinion The Heller Court suggested that the core of the Second Amendment right is to allow “law-abiding, responsible citizens to use arms in defense of hearth and home.”Id. The Supreme Court more than “suggested” that the core Second Amendment right was the right to self-defense, they explicitly stated it, as quoted by the Ninth Circuit.

The Ninth then says this: Finally, the Court established that “weapons not typically possessed by law-abiding citizens for lawful purposes” are not protected by the Second AmendmentId. quoting Heller They fail to discuss that “typically possessed” is defined by the Supreme Court to mean “in common use”.

And then the Ninth justifies the infringement they are about to indorse with longstanding prohibitions are presumptively lawful regulatory measuresId.

How to sound like you support the Second Amendment

The state argued that §922(g)(9) does fall within the scope of the Second Amendment but assume that it is constitutional on its face. They reason that since å922(g)(9) was not mentioned in Heller that it is one of the presumptively lawful regulatory measures. Even though §922(g) didn’t come into effect until 1968 and §922(g)(9) didn’t come into effect until 1986(?) that it is part of a long standing prohibitions against people perceived as dangerous or violentId.

The Ninth said “Nope”. This does not qualify as long standing and does not meet the requirement of text, history and tradition. Good for them.

Then Ninth does their pretzel trick. In Heller the Supreme Court did not say to use strict or intermediate scrutiny, instead they mentioned in passing that “rational basis”, the lowest form of scrutiny. The Supreme Court said If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.Heller

Notice the actual grammar used, if rational basis was all that was required then the Second Amendment wouldn’t mean anything. The Ninth will then go on to say that intermediate scrutiny is all that is required. Which gets them exactly the same results as if they used rational basis.

We are seeing in multiple courts around the country where post Bruen that multiple parts of §922(g) are being challenged and we are winning.

The court acknowledges that while §922(g)(9) places a substantial burden on Chovan, it doesn’t put a substantial burden on the law-abiding. Because it doesn’t impact the law-abiding, the proper scrutiny, according to the court, is intermediate.

Thus the Ninth in US v. Chovan find that the proper scrutiny for Second Amendment cases (for domestic violence misdemeanors) that in Fyock v. Sunnyvale intermediate scrutiny should apply even though the plaintiffs are all law-abiding citizens.

Back to Fyock v. Sunnyvale

The Ninth says that the state has not provided any historical support for LCM bans. They go onto say that the state hasn’t presented any evidence that LCMs are “Dangerous and Unusual Weapons”. Good.

The Ninth then goes on to say that Fyock didn’t prove that LCMs are commonly possessed by law-abiding citizens for lawful purposes. They claim that Fyock relied on marketing and sales statistics.

Since Fyock v. Sunnyvale was heard in 2015 and Caetano v. Massachusetts was decided in 2016 there was no Supreme Court definition or lower limit on “commonly possessed”. Caetano established the lower limit at 200,000.

Regardless, the Ninth said that the District Court did not abuse its discretion when the district court found that LCMs were in common use.

Of note, at this point, post Bruen, this case should have gone for the plaintiffs. But we are still pre Bruen.

The Ninth Circuit court looks for decisions outside of themselves for guidance:

The Ninth then reasons that since a LCM ban is not as sweeping as the complete handgun banId. in Heller that they don’t have to use “strict scrutiny”.

Having come to the predetermined conclusion that they should use intermediate scrutiny, all the court needs to do is find that the state had “substantial and important government issues” and the LCM ban was upheld as constituional.

Takeaways

This is the same process that is playing out now, post Bruen with the minor difference that the states that were are infringing decided to give the finger to the Supreme Court. All of the laws passed post Bruen that attempt to make the cost of carrying or the cost of getting a permit or the risks to carrying outside of your home are extreme.

Because they are extreme, it is much easier for the courts to slap them down. We are finding case after case where inferior courts at the lowest levels are finding for the Second Amendment. They are doing it correctly. The few that are not get laughed at.

The state, in both the creation of new laws and in the courts, are throwing everything they possibly can at the wall to see what sticks.

We need to be vigilant to the games that are played in the courts. Courts like the Ninth Circuit will make small, justifiable decisions that are only small infringements. They will then self reference to make a greater infringement constitutional. The other anti-gun courts will take up these decisions and before you know it we have a history of case law, again, that is against us.

We are going to see some places get sensitive places labels slapped on them and it is going to stick. We are going to get courts that are going to accept “reasonable training requirements”. And these will lead to still more infringements.

If you made it to the end, thank you. I’m taking a some of the feedback given and attempting to make this all work better for you all.

I’m using the “Read More” and I’ve added headers to make it easier to find different sections.

This article is only 3042 words long.