Click here to download a PDF of Duncan v. Becerra.

A quick note: When I was laying in bed last night, still processing this brief, I realized that those states that are AWB laws and other assorted crap can benefit with what is being said in this decision. We have been given an amazing toolbox that we can use if we are going to speak in public and address our legislators or other ways. Read it and pick the best, use it. It is a shame for legislators that a court strikes one of their laws because it was deemed unconstitutional at the Bill Of Rights level.

Some have said that the burden is minor because there are other choices. E.g., Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1278 (N.D. Cal. 2014), aff’d sub nom. Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (“Individuals have countless other handgun and magazine options to exercise their Second Amendment rights . . . Accordingly, a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment.”). But describing as minor, the burden on responsible, law-abiding citizens who may not possess a 15-round magazine for self-defense because there are other arms permitted with 10 or fewer rounds, is like saying that when government closes a Mormon church it is a minor burden because next door there is a Baptist church or a Hindu temple

I do believe this Judge is going the full “If Heller says the Second Amendment should be treated like the rest, by God I will.”

 

When a group of armed burglars break into a citizen’s home at night, and the homeowner in pajamas must choose between using their left hand to grab either a telephone, a flashlight, or an extra 10-round magazine, the burden is severe. When one is far from help in a sparsely populated part of the state, and law enforcement may not be able to respond in a timely manner, the burden of a 10-round limit is severe. When a major earthquake causes power outages, gas and water line ruptures, collapsed bridges and buildings, and chaos, the burden of a 10-round magazine limit is severe. When food distribution channels are disrupted and sustenance becomes scarce while criminals run rampant, the burden of a 10-round magazine limit is severe. Surely, the rights protected by the Second Amendment are not to be trimmed away as unnecessary because today’s litigation happens during the best of times.

This is going to come helpful now that the LAPD Chief wants to eliminate all CWP that they were forced to use in the 90s. The excuse he is using?

Technology has improved tremendously in the last 24 years which has enabled individuals to instantly communicate with law enforcement via cellphones from anywhere and at any time should they feel threatened,” Moore said.

The Second Amendment does not apply only in rainy days. It works 24/7 365.

California’s ban on magazines able to hold more than 10 rounds fails strict scrutiny. The State has not offered a compelling interest for the ban, arguing that intermediate scrutiny should be the test. If preventing mass shootings is the state’s interest, it is not at all clear that it would be compelling since such events are exceedingly rare. If the state’s interest is in forcing a “pause” during a mass shooting for a shooter to be apprehended, those events are even more rare.

And the AG was ballsy indeed.

The Attorney General says that empirical evidence is not required to shoulder his burden. Oppo. at 19. He says that the required substantial evidence demonstrating a reasonable fit can take other, softer forms such as “history, consensus, and simple common sense,” as well as “correlation evidence” and even simply “intuition.” … Yet, as the Second Circuit cautioned, “on intermediate scrutiny review, the state cannot ‘get away with shoddy data or reasoning.’ To survive intermediate scrutiny, the defendants must show ‘reasonable inferences based on substantial evidence.

Gun Control: We make shit up and you must accept it as dogma.

On page 47, look for the text before this quote. It seems the AG kinda-sorta-failed to tell the whole story and got caught. In  way, the judge also ask, “But, if they are forbidden! How come he had one?” Another question we keep asking and never gets properly answered by the Opposition. The judge takes a swipe at the data coming from Mayors Against Illegal Guns and Mother Jones.

Mass shootings are tragic. But they are rare events. And of these rare events, many are committed without large capacity magazines.

To summarize, the 36-year survey of mass shootings by Mother Jones magazine put forth by the AG as evidence of the State’s need for § 32310, undercuts its own argument. The AG’s evidence demonstrates that mass shootings in California are rare, and its criminalization of large capacity magazine acquisition and possession has had no effect on reducing the number of shots a perpetrator can fire. The only effect of § 32310 is to make criminals of California’s 39 million law-abiding citizens who want to have ready for their self-defense a firearm with more than 10 rounds. (Page 51)

This is not going to sit well with Mother Jones. You data used to favor the Second Amendment? That I gonna leave  mark.

And last quote for now.

The Attorney General has submitted two unofficial surveys to prove mass shootings are a problem made worse by firearm magazines holding more than 10 rounds. Do the surveys pass the Federal Rule of Evidence Rule 403 test for relevance? Yes. Are the surveys admissible under Federal Rule of Evidence Rule 802? No. They are double or triple hearsay. No foundation has been laid. No authentication attempted. Are they reliable? No. Are they anything more than a selected compilation of news articles – articles which are themselves inadmissible? No. Are the compilers likely to be biased? Yes. Where are the actual police investigation reports? The Attorney General, California’s top law enforcement officer, has not submitted a single official police report of a shooting. Instead, the Attorney General relies on news articles and interest group surveys.

Lies of omission.

More to come tomorrow.