Third Circuit Upholds Magazine Law (Great Disent)

Occam · Dec 19, 2018

jcutonilli said:
I depends on what you mean by public safety. They certainly have a duty to protect the general public's safety. This is why they win most 2A cases. What is not really true is that this means they protect everyone in all situations. They do not have a duty protect individuals. What is unclear is where the line between an individual and the public in general.

I always took that to mean that they (the entire law enforcement stack ... cops, prosecutors, DAs, all of it) protect society by enforcing the rule of law when it's been violated. The theory being that an environment in which prospective criminals know the consequences if they're caught is one in which at least some crime is less likely to happen. That has a slightly preventative effect, but isn't to be confused with law enforcers likely being there to help physically prevent a given single crime (let alone being obliged to do so).

The presence of law enforcement as a crime is unfolding or about to do so provides a better than usual opportunity to attempt to mitigate it, but that's just frosting on the law enforcement cake, and not the mission or duty, per se.

The entire notion of individual people not needing (and thus not being allowed to have) the means of self defense because the government plays that role ... is EXACTLY the BS argument that the founders anticipated, and what the 2A is explicitly written to smack down. In essence: "Yeah, turns out we'll need a professional military to protect our national freedom, but that's no excuse to take away the individual liberty to keep and bear personal arms, so that's not allowed."

The founders knew people would trot out that absurd (in both practical and philosophical terms) concept, and wrote in protection against it right after the protection of speech and assembly as fundamental to our liberties. Believe me, I'd rather have a cop dive in to deal with a threatening situation if that can be arranged. But most threatening situations aren't bank hostage standoffs with time for everyone to get on the chessboard and play their parts. More like: getting approached in a dark parking lot (or as the founders understood it ... on your farm, or along a dark road in the woods, etc), with the situation ending one way or another in seconds.

Public safety, in that context, never has been and never can be in the hands of law enforcement.

CrabcakesAndFootball · Jan 2, 2019

CrabcakesAndFootball said:
Thousands of otherwise law-abiding, tax-paying residents of the State of New Jersey woke up this morning as criminals, as the ban went into effect today. I've submitted a New Jersey public info request for all documents sufficient to identify the number of magazines surrendered. I will post the response if interesting.

Here is the response; it is what I expected based on some articles I've seen on the interweb:

"The Division of State Police is in receipt of your OPRA request.
A search was conducted for responsive records to your request and it has been determined that the Division of State Police is not in possession of any such records. While the Division of State Police is not in possession of
any records that are responsive to your request, as a courtesy, please be advised that no large capacity magazines as defined by N.J.S.A. 2C:39-1(y) have been surrendered to the Division of State Police. It should
be noted, however, that, pursuant to N.J.S.A. 2C:39-19, in addition to voluntarily surrendering a large capacity magazine to a local police agency or the Superintendent of the State Police, large capacity magazines may be
rendered totally inoperable, brought to an authorized firearms dealer for permanent modification, or transferred to a person legally authorized to possess a large capacity magazine.
Your request is now considered closed."

It is beyond frustrating that all of us and all of them know damn well that we'll never get an accurate number of mags turned in because there's no central repository of the data. The only way to get an accurate number is to submit open records requests to each of the clerks for the hundred plus municipalities.

I would still like the data, and I would even consider submitting the hundred plus requests over a weekend. The biggest problem at this point is that I am unable to find a list of all of the municipal clerks. If anyone has any insight or is on a similar quest, please let me know. Thanks.

jcutonilli · Jan 3, 2019

CrabcakesAndFootball said:
Here is the response; it is what I expected based on some articles I've seen on the interweb:

"The Division of State Police is in receipt of your OPRA request.
A search was conducted for responsive records to your request and it has been determined that the Division of State Police is not in possession of any such records. While the Division of State Police is not in possession of
any records that are responsive to your request, as a courtesy, please be advised that no large capacity magazines as defined by N.J.S.A. 2C:39-1(y) have been surrendered to the Division of State Police. It should
be noted, however, that, pursuant to N.J.S.A. 2C:39-19, in addition to voluntarily surrendering a large capacity magazine to a local police agency or the Superintendent of the State Police, large capacity magazines may be
rendered totally inoperable, brought to an authorized firearms dealer for permanent modification, or transferred to a person legally authorized to possess a large capacity magazine.
Your request is now considered closed."

It is beyond frustrating that all of us and all of them know damn well that we'll never get an accurate number of mags turned in because there's no central repository of the data. The only way to get an accurate number is to submit open records requests to each of the clerks for the hundred plus municipalities.

I would still like the data, and I would even consider submitting the hundred plus requests over a weekend. The biggest problem at this point is that I am unable to find a list of all of the municipal clerks. If anyone has any insight or is on a similar quest, please let me know. Thanks.

You don't necessarily need to get data from every municipality. You can do some random sampling and not so random sampling. I would probably start with some of the larger municipalities and see what you get.

Abulg1972 · Jan 3, 2019

Has any federal appeals court struck down a "high capacity" ban? I see from the dissenting opinion that 5 Circuits have upheld them. The Supreme Court is unlikely to take up a case unless there is a split among the Circuits. This stuff - the continuous whittling away of our rights - is so freaking frustrating. I promise that the Maryland GA will introduce a bill this year.

ironpony · Jan 3, 2019

Yup, having thoughts Of a revolver after not being able to find 7 rnd mags

ironpony · Jan 6, 2019

Abulg1972 said:
Has any federal appeals court struck down a "high capacity" ban? I see from the dissenting opinion that 5 Circuits have upheld them. The Supreme Court is unlikely to take up a case unless there is a split among the Circuits. This stuff - the continuous whittling away of our rights - is so freaking frustrating. I promise that the Maryland GA will introduce a bill this year.

Not directly to you Abulg but:
With the current make up of these circuits the SCOTUS may never see such an infringement case?
Given this logic the second amendment, when presented to these circuits, could be short lived? Well here in MD it’s very limited already so I have answered my own question.

Allen65 · Jan 6, 2019

ironpony said:
Not directly to you Abulg but:
With the current make up of these circuits the SCOTUS may never see such an infringement case?
Given this logic the second amendment, when presented to these circuits, could be short lived? Well here in MD it’s very limited already so I have answered my own question.

There could be overspill from another 2A case, or another core BoR case, that would affect mag ban jurisprudence. If SCOTUS determined that all cases affecting core, enumerated elements in the BoR require Strict Scrutiny, all those cases decided with "Intermediate Scrutiny" (a.k.a. Rational Basis with additional rationalization as to why the State is always right) could be in trouble. Intermediate Scrutiny as doctrine was a mistake, and it needs to get tossed, along with Chevron and Auer Deference.

jcutonilli · Jan 7, 2019

ironpony said:
Not directly to you Abulg but:
With the current make up of these circuits the SCOTUS may never see such an infringement case?
Given this logic the second amendment, when presented to these circuits, could be short lived? Well here in MD it’s very limited already so I have answered my own question.

Circuit splits are only one reason for SCOTUS to intervene. Caetano is an example of them taking a case without a split.

Wren was an example of the circuits deciding the case differently. SCOTUS did not get involved because DC did not petition for cert.

Allen65 said:
There could be overspill from another 2A case, or another core BoR case, that would affect mag ban jurisprudence. If SCOTUS determined that all cases affecting core, enumerated elements in the BoR require Strict Scrutiny, all those cases decided with "Intermediate Scrutiny" (a.k.a. Rational Basis with additional rationalization as to why the State is always right) could be in trouble. Intermediate Scrutiny as doctrine was a mistake, and it needs to get tossed, along with Chevron and Auer Deference.

I doubt that intermediate scrutiny will get thrown out. Many times you need a balance between almost never surviving and almost always surviving. Intermediate scrutiny is that place. The problem is that it is not well defined.

I am not aware of any case that really explains the problem with intermediate scrutiny. They make claims that it is rational basis without any real explanation. Why should SCOTUS change things if you can't articulate what the problem really is?

press1280 · Jan 7, 2019

jcutonilli said:
Circuit splits are only one reason for SCOTUS to intervene. Caetano is an example of them taking a case without a split.

Wren was an example of the circuits deciding the case differently. SCOTUS did not get involved because DC did not petition for cert.

I doubt that intermediate scrutiny will get thrown out. Many times you need a balance between almost never surviving and almost always surviving. Intermediate scrutiny is that place. The problem is that it is not well defined.

I am not aware of any case that really explains the problem with intermediate scrutiny. They make claims that it is rational basis without any real explanation. Why should SCOTUS change things if you can't articulate what the problem really is?

I think Freidman may be a good example on that. Judge Easterbrook said one defense of the AW law was if people "feel" safer. Not sure why that would need much explaining.

GlocksAndPatriots · Jan 7, 2019

press1280 said:
I think Freidman may be a good example on that. Judge Easterbrook said one defense of the AW law was if people "feel" safer. Not sure why that would need much explaining.

Exactly. The courts can call it intermediate scrutiny, but given that they entirely defer to the states' "weighing" of the evidence, it's really just rational basis.

jcutonilli · Jan 7, 2019

press1280 said:
I think Freidman may be a good example on that. Judge Easterbrook said one defense of the AW law was if people "feel" safer. Not sure why that would need much explaining.

That was only one of the reasons. They listed several others, which are similar to many other 2A cases. They verify that there is some kind of benefit and that the right is not entirely destroyed.

In Friedman little evidence was presented that showed "AW" were actually used for self defense. The evidence that was presented way mostly hypothetical since no actual use was demonstrated.

GlocksAndPatriots said:
Exactly. The courts can call it intermediate scrutiny, but given that they entirely defer to the states' "weighing" of the evidence, it's really just rational basis.

The court explained that there are "problems that would be created by treating such empirical issues as for the judiciary rather than the legislature". There is supreme court precedent for deferring to the legislature over these types of issues. Why should the court disregard this precedent?

Why does deferring to the legislature make it rational basis? The court confirmed that public safety is an substantial government objective, which is one of the criterion for intermediate scrutiny. Guns certainly are used to harm others. It therefor "furthers an important government interest by means that are substantially related to that interest" How is the court not following intermediate scrutiny?

I would also point out that the term rational basis was not found in the Friedman petition indicating that it was not an argument postulated by the lawyers bringing the case.

ironpony · Jan 8, 2019

jcutonilli said:
That was only one of the reasons. They listed several others, which are similar to many other 2A cases. They verify that there is some kind of benefit and that the right is not entirely destroyed.

Not directed to you JC I just found this idea strange since somewhere there is a paper that says the right "Shall not be infringed".

Anyway, has anyone found 7 rnd mags for a Glock yet? Sarcasm ... kinda

jcutonilli · Jan 8, 2019

ironpony said:
Not directed to you JC I just found this idea strange since somewhere there is a paper that says the right "Shall not be infringed".

Anyway, has anyone found 7 rnd mags for a Glock yet? Sarcasm ... kinda

We know from Heller that the 2A does not actually define the right, it is a pre-existing right. We also know that there are some limitations.

The question that the courts are struggling with is what is the right? The paper you read does not help with that answer. If some limitation completely destroys the right, it cannot be a real limitation because we know the right exists.

davsco · Jan 8, 2019

i still remember seeing on tv the team that went after the boston marathon bomber, after one freakin' loser dude. loaded to the gills with ar's and handguns, all with well over 10 round mags. and yet the court feels comfortable limiting a single parent, way less than a tactical team, to 10 round mags, to protect against possible multiple intruders who surely won't be paying attention to any state-mandated magazine limits.

GlocksAndPatriots · Jan 8, 2019

jcutonilli said:
That was only one of the reasons. They listed several others, which are similar to many other 2A cases. They verify that there is some kind of benefit and that the right is not entirely destroyed.

In Friedman little evidence was presented that showed "AW" were actually used for self defense. The evidence that was presented way mostly hypothetical since no actual use was demonstrated.

The court explained that there are "problems that would be created by treating such empirical issues as for the judiciary rather than the legislature". There is supreme court precedent for deferring to the legislature over these types of issues. Why should the court disregard this precedent?

Why does deferring to the legislature make it rational basis? The court confirmed that public safety is an substantial government objective, which is one of the criterion for intermediate scrutiny. Guns certainly are used to harm others. It therefor "furthers an important government interest by means that are substantially related to that interest" How is the court not following intermediate scrutiny?

I would also point out that the term rational basis was not found in the Friedman petition indicating that it was not an argument postulated by the lawyers bringing the case.

Because whether or not it's "substantially related to that interest" necessarily requires assessing and weighing the evidence.

jcutonilli · Jan 8, 2019

GlocksAndPatriots said:
Because whether or not it's "substantially related to that interest" necessarily requires assessing and weighing the evidence.

There is an assessment and weighing of the evidence by the legislature. The court confirms that an assessment was done. Supreme Court precedent says this is how it should be done. Why should we ignore this precedent?

GlocksAndPatriots · Jan 8, 2019

jcutonilli said:
There is an assessment and weighing of the evidence by the legislature. The court confirms that an assessment was done. Supreme Court precedent says this is how it should be done. Why should we ignore this precedent?

No, that's not what the Supreme Court precedent says. It says that the law must be a reasonable "fit" to the government interest. It doesn't say the legislature gets to determine that unchecked.

hdatontodo · Jan 8, 2019

deleted

jcutonilli · Jan 8, 2019

GlocksAndPatriots said:
No, that's not what the Supreme Court precedent says. It says that the law must be a reasonable "fit" to the government interest. It doesn't say the legislature gets to determine that unchecked.

The courts don't let the legislature go unchecked. They find that there is a reasonable fit. They find that guns (and "large capacity" mags; eg. this particular case) cause harm to society. The dissent in this case succinctly puts it "Guns kill people." Isn't this a reasonable fit between the ban on certain guns and public safety (the people)?

Not_an_outlaw · Jan 9, 2019

jcutonilli said:
The courts don't let the legislature go unchecked. They find that there is a reasonable fit. They find that guns (and "large capacity" mags; eg. this particular case) cause harm to society. The dissent in this case succinctly puts it "Guns kill people." Isn't this a reasonable fit between the ban on certain guns and public safety (the people)?

By your proffered assessment, everything can be substantially related. I would like to see some other points of view. Can you think of a single right that someone cannot come up with an argument that meets intermediate scrutiny? That is the problem with the test. It makes sense with signs at liquor stores and advertisements on commercial vehicles, but not so much with fundamental rights.

Third Circuit Upholds Magazine Law (Great Disent)

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