(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.
—Nguyen v. Bonta, No. 24-2036 (9th Cir.)
The right of the people to keep and bear arms shall not be infringed.
- To violate; to break laws or contracts.
- To destroy; to hinder.
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:
—id.
’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.
California playing California games. Still.
.
I would point out that the law certainly does restrict the number of firearms that can be procured. If you buy your first gun the day you turn of age, then for the first month you can only have procured one gun. After your first year you can have at most 11 guns, purchasing the 12th on your birthday.
.
That seems like a limit to me. But it gets worse. Those are maximum numbers. Forget – or for other reasons can’t make a purchase – one month? That opportunity is gone. You cannot buy two the following month. The rachet has locked and you are limited even more.
.
Whether or not buying a gun per month is a good idea, useful, etc., is irrelevant.
(Echoing and expanding on Boris’ comment above:)
.
I love this part: The law does not impose any numerical limit on the number of firearms that California residents may acquire and possess.
.
Yes, it does actually. It’s just that there’s no way of knowing what that numerical limit is for any given person.
.
If a young person comes of age at 18 years old and starts a collection of firearms with buying one on his/her 18th birthday, but tragically dies in a car wreck on his/her 19th birthday, at most he/she will have bought 13 firearms. This hypothetical person’s numerical limit was 13.
.
If an older man buys his first firearm but dies of a heart attack two weeks later, we can argue his numerical limit was 1.
.
But even assuming we start counting as soon as someone is legally able to purchase firearms — whether they do or not — at age 68 the numerical limit is, at most, about 600 (minus the number of “missed” opportunities to purchase a firearm).
.
While 600 firearms is a lot more than most of us will own, it completely refutes the State’s ludicrous claim that “The law does not impose any numerical limit…” [emphasis mine]. Supposing someone wanted 2000 guns, he/she would have to miss zero opportunities AND live to nearly 185 years! (Suffice to say, 1000 requires living for over a century and is probably the most anyone can hope for.)
.
No, California, the law DOES impose a limit. Given the variability of human lifespans, accidents, etc., there’s no way to predict for certain what any person’s limit will be, but there IS a numerical limit.