<![CDATA[Duncan v. Bonta]]>

The latest on 2A lawsuits in CA, IL

March 3, 2023 by Cam Edwards Leave a Comment

We’ve got a special Friday edition of Bearing Arms’ Cam & Co today, and I’m really pleased that California Rifle & Pistol Association head and Second Amendment attorney C.D. “Chuck” Michel could join the show to update us on several of the cases that he’s currently working on and involved with; not only in California but in Illinois as well, where Michel is the lead attorney in the lawsuit filed by the Illinois Gun Rights Alliance.

We kick off the conversation with California, where Michel and gun owners are awaiting U.S. District Judge Roger Benitez’s opinion in four separate legal challenges:

Miller v. Bonta (taking on California’s “assault weapons” ban)
Duncan v. Bonta (a challenge to the state’s ban on “large capacity” magazines)
Rhode v. Bonta (challenging the state’s ban on out-of-state ammo purchases and background checks on in-state ammunition purchases)
Fouts v. Bonta (targeting California’s ban on “billy clubs”)

Michel says all four cases have had “tortured paths” in the courts to date, with Benitez already ruling in favor of the plaintiffs in several of the lawsuits. But in the wake of the Bruen decision the Ninth Circuit kicked all of these cases back to Benitez’s courtroom for a do-over, even though there’s little doubt that Benitez is once again going to find that these statutes are still unconstitutional under the “text, history, and tradition test” laid out by SCOTUS last year.

The last briefs in all four cases have been submitted to Benitez for his consideration, and now we’re just waiting for his opinions to come down. Michel says he’s curious to see if the judge releases all four opinions at once or separately, musing that Benitez may decide to give each case a spotlight of its own in order to poke at California Gov. Gavin Newsom, who’s repeatedly attacked Benitez for his rulings.

Michel and I also discussed Boland v. Bonta, which is a challenge to California’s handgun roster law; a bizarre gun control artifact that has placed many commonly-owned arms out of reach of most California gun owners. U.S. District Judge Cormac Carney held a hearing on Michel’s request for an injunction back in January, and his decision could come down at any time.

I also spoke with Michel about the CRPA’s “CCW Reckoning Project”. The organization has been busy sending pre-litigation demand letters to jurisdictions across the state that are still screwing around with the right to bear arms, including one that was recently delivered to the Laverne, California police department. The Los Angeles County city has set a fee schedule for concealed carry applicants that will force them to pay more than $1,000 in order to obtain a carry license. Michel says that places like Laverne will either “see the light or feel the heat” of a lawsuit, but noted that most of the departments that the CRPA has contacted have actually responded positively; increasing staff and decreasing the amount of time it’s taking to process carry applications rather than trying to defend their previous policies in court. Even cities like San Francisco have started issuing concealed carry licenses, so while the pace may be slower than California gun owners would like, genuine progress is being made.

I guess the same could be said for Illinois as well. Several county judges have granted temporary restraining orders or injunctions against the state’s new ban on so-called assault weapons and “large capacity” magazines, but those decisions only apply to the plaintiffs who’ve actually filed suit. There are multiple lawsuits in federal court that are seeking a broader injunction that would apply statewide, and U.S. District Judge Stephen McGlynn is set to hold oral arguments on that request in mid-April. Michel says that Illinois’ defense of its ban is fundamentally no different than California’s, including providing the courts with a laundry list of ordinances, laws, and even letters from historical figures like George Washington that anti-gunners claim are historical analogues to the sweeping bans on commonly-owned firearms enacted by anti-2A lawmakers.

Michel is unimpressed with their findings, and says the laws cited by the AGs in California and New York simply aren’t anywhere close to the kind of bans currently in place in those states. He and his associates have been doing some research of their own as well, and as you’ll hear in the conversation below, recently came across a letter from one Founding Father to another discussing “rapid, reloading muskets” which demolishes the argument by gun control activists that the Founders could never have imagined a world with repeating, multi-shot firearms.

Of course, the fact that multi-shot firearms already existed at the time the Second Amendment was written hasn’t stopped anti-gun activists from peddling that particular claim, so I’m sure they’ll ignore this latest evidence to the contrary as well.

It’s a fascinating conversation with Chuck Michel, and I encourage you to check it out for yourself in the video window below. I’m hoping to get Chuck back on the show in the next couple of weeks for another update, but it might be sooner than that if Judge Benitez delivers more victories for California gun owners before then.

California points to racist gun control laws in defense of magazine ban

February 13, 2023 by Cam Edwards Leave a Comment

Duncan v. Bonta is one of the many cases percolating around the Ninth Circuit Court of Appeals dealing with a challenge to a California gun control law; in this case the state’s ban on manufacture, sale, transfer, and possession of “large capacity” magazines. California arbitrarily defines any magazine that can hold more than ten rounds as a LCM, and even if you legally purchased one before the state’s ban took effect under an expansion of the law several years ago existing owners are required to either destroy their magazines, permanently modify them, remove them from the state, or hand them over to police.

Even before the Bruen decision and its “text, history, and tradition” test was released, U.S. District Judge Roger Benitez had already ruled the state’s ban was unconstitutional, and a three-judge panel on the Ninth Circuit upheld his decision. An en banc panel decided to rehear the case, however, and in June of 2021 overturned the previous decisions and upholding the magazine ban. The case made its way to the Supreme Court, which granted cert and vacated the Ninth Circuit’s decision, sending the case back to the Ninth for a re-hearing in light of Bruen‘s findings.

The Ninth Circuit in turn kicked the case back down to Judge Benitez, even though Benitez has already found the law to be constitutionally suspect once. I suspect this is nothing more than an attempt by anti-gun judges on the Ninth Circuit to keep this case away from SCOTUS for as long as possible in the hopes that there might be one or more anti-gun justices on the bench when the case is finally heard.

In the meantime, Judge Benitez is moving forward as quickly as possible while still allowing the state some time to search for the historical analogues necessary to uphold the magazine ban. A couple of weeks ago I reported on the laughably bad evidence Attorney General Rob Bonta had compiled in defense of the state’s ban on “assault weapons,” and now California Rifle & Pistol Association head and Second Amendment attorney Chuck Michel points out in his latest filing in the Duncan case that the laws Bonta cites approvingly aren’t just a poor fit… many of them are downright racist and exclusionary in nature.

Frankly, even remote resemblances are not within the grasp of any of the hundreds of proposed analogues the State has submitted to this Court. It saw fit to include English laws that pre-date Shakespeare, fire-safety laws, laws that barred the concealed carry (but not possession) of certain weapons, and puzzlingly, even an assortment of racist laws that only applied to slaves, free African Americans, and Native Americans. But the State did not include laws dating to the ratification of the Second or Fourteenth Amendments that banned the possession of an entire class of common arms based on their firing capacity—because, try as it might, the State could not find a single example of such a law.

Michel’s commentary on the specific laws cited is biting and brilliant.

The State’s charts do not include a single founding-era law that bans the possession of any class of arms, let alone a class of arms in common use. Instead, the State relies on several laws banning the carry, possession, or use of arms by enslaved people, Indians, and other racial minorities. ECF No. 139-1, at 1, 3-7, 13, 17-18 (citing laws of New York (1664), Virginia (1792), Delaware (1797), Kentucky (1798), and Georgia (1860), as well as the territories of Mississippi (1799, 1804), Indiana (1804), Missouri (1818), Arkansas (1835), North Carolina (1846), and the city of Harrodsburg, KY (1859)). The State’s “reliance on these laws is concerning, but in any event, they do not support the constitutionality of” California’s modern magazine ban.
Indeed, it should go without saying that slave codes and explicitly racist laws enacted to disarm classes of marginalized people provide no legitimate analogue for modern arms bans. Otherwise, the Bruen Court would have mentioned them even once, but the Court rightly ignored them. Aside from being repugnant to American (and Californian) values of liberty, equality, and human dignity, “historical restrictions on slaves and Indians provide no insight into the constitutionality of [a modern gun restriction]. That is because neither slaves nor Indians were understood to be a part of the “political community” of persons protected by the Second Amendment. Slaves, of course, were not made a part of the political community until the post-Civil War amendments and thus did not hold any Second Amendment rights—a point infamously, yet explicitly, made by Dred Scott v. Sanford itself. Indians, likewise, were also generally not considered to be a part of the political community protected by the Second Amendment.” Id. (citing Scott v. Sanford, 60 U.S. (19 How.) 393, 404 (1856)) (emphasis added).

Bonta’s not the only anti-gun attorney who’s cited these racist gun control laws in defense of modern prohibitions. The Department of Justice did the same thing in defending the current prohibition on gun ownership for marijuana users; arguing that imbibers are just as inherently dangerous today as Catholics and Indians were seen to be back in the 19th century.

In the case of California’s magazine ban, as Michel notes, even if Judge Benitez did want to consider these morally reprehensible statutes, they’re not an historic analogue to the state’s modern day prohibition on magazines that can hold more than ten rounds. These laws prohibited entire classes of people from possessing arms arms of any kind by placing the people themselves beyond the protections of the Second Amendment. There’s no dispute that legal gun owners are directly impacted by California’s magazine ban, given that the law turns owners of lawfully-purchased magazines into criminals simply for maintaining possession.

Maybe Bonta’s just adopted the strategy of including any historical gun control law he can find in an attempt to overwhelm judges with a mountain of misleading evidence, but whatever his motivation I don’t think its going to play well with “Saint” Benitez or the Supreme Court when Duncan finally arrives on its doorstep.