Tuesday, April 23, 2019

Blogging may be slow for a couple of days - Going off grid in Queensland, Australia

I stopped at The Australian Telescope project on my way to Queensland.

It is an impressive piece of technology. The big antennas run on rails. They are spaced to achieve greater resolution of radio wave images.

I will be off the grid for a couple of days. Posting will be slow - not sure if I will be able to get any Internet connection. 

I should be posting again in a few days.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

Shooters Fishers Farmers Party in NSW Australia Claims Three Seats

The Shooters Fishers and Farmers Party SFF in New South Wales (NSW), Australia, has gained a seat in the lower house in the 2019 elections. They now have three seats out of 135 in the lower house, and two seats out of 42 in the upper house, the Legislative Council. David Leyonhjelm, a Libertarian, is expected to win a seat in the upper house and to vote with the SFF on firearms issues.

Because the NSW government is a parliamentary system, the small parties can have a disproportionate impact. In the lower house, the SFF has the same number of seats as the Green party.  The 2019 election was held on 23 March. Only half of the upper house, the Legislative council, was up for election.

NSW has a complicated 2nd and 3rd preference election system. They system takes numerous re-counts and calculations in close races. The complete results will not be know for a few days, about the middle of April.

In a Parliamentary system, coalitions are formed to make a majority government. If the SFF party becomes necessary to form a majority government, they will be able to demand some concessions to their agenda.

Here is the platform of the Shooters Fishers Farmers Party regarding firearms:

Our Action Plan: 

1. Fight for all law-abiding firearms owners regardless of their chosen discipline or shooting interests.

2. Introduce legislation to enforce mandatory minimum sentences for serious crimes committed with a firearm, to be served consecutively, not concurrently.

3. Campaign for tougher measures and sentencing of illegal firearms trading.

4. Support the introduction of a permanent firearms amnesty so that unregistered or unwanted firearms can be removed from the community without prosecution.

5. Support family and home protection and continue to support measures increasing a person’s right to self-defence.

6. Introduce legislation to remove the recording of ammunition sales which serve no purpose in enhancing community safety and create criminal ‘shopping lists’.

7. Remove paintball markers from the Firearms Act.

8. Continue to drive the establishment of firearms ranges and facilities throughout NSW with an emphasis on increasing disabled access and regional shooting complexes.

9. Broaden the successful ‘Safe Shooting Grants’ program established under Shooters MP Hon John Tingle to support and fund shooting and hunting clubs across NSW.

10. Introduce legislation and exemptions for past and serving defence force and law enforcement personnel to grant licenses and registration of firearms free of any fees

The points in the platform that appear most important to me are number 5, which would establish the legal ability to use a firearm in self defense, and number 10, which would provide an incentive for service in the Australian Defence Force and law enforcement.

Those exceptions exist in many American States.

The reforms may seem mild to American gun owners, with the strong protections that have been maintained due to the influence of the Second Amendment.

They are opposed by members of the Media and academia in Australia.

Australia had a vigorous gun culture, well accepted and in the mainstream, well into the 1980s. It was only when academia and the Media turned against the gun culture that the severe restrictions were introduced and passed.

Those who are consciously unarmed see no cost in disarming others.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch


TN: Intruder Shot, Killed by Homeowner

According to the Sheriff Office, about two hours later Whitehead returned to the residence and forced his way into the home. Whitehead was subsequently shot by David Tucker who was in fear of his and his family’s safety.
More Here

KY: Shots Fired at Intruder, Wounded Man at Hospital Says, Not Me!

Officials say someone inside a home fired shots at a man who was trying to break in. The man fled the scene with no apparent gunshot wounds.

According to authorities, a man later showed up at Sts. Mary & Elizabeth Hospital with gunshot wounds, but claimed he was not shot at the home.

More Here

Monday, April 22, 2019

Australian Museums' Guns face Destruction

The most famous firearms manufacturer in Australia is the Lithgow Small Arms Factory. On the grounds of the existing factory site is the Lithgow Small Arms Factory Museum. The Museum is independently owned and operated, primarily by volunteers, as an independent trust on behalf of the City of Lithgow. Just a few weeks ago, the museum learned that 70 percent of its collection is at risk of being destroyed because of a thoughtless change in firearms law passed in 2017, specifically aimed at museums. Museums were not contacted about the change in the law. They had no input about it. From lithgowsafmuseum.org.au:
LSAFM only found out about the new Regulation when another regional volunteer-led museum had firearms confiscated in early February 2019, and contacted us for advice.
How has the Firearms Regulation changed …
Basically the 2017 Regulation for Museums states that all pistols, self-loading longarms, sub-machine guns or machine guns are to be rendered permanently inoperable.
The irreversible destruction includes:
  • inserting a steel rod traversing the length of the barrel and welding it at the muzzle and chamber;
  • welding the barrel to the receiver;
  • removing the firing pin and welding the hole;
  • removing internal springs;
  • welding internal components;
  • welding any bolts and external hammers; and
  • welding the trigger in a fixed position.
All other firearms, such as bolt action rifles and older antiques, remain temporarily inoperable. But they may well be next in line if this insidious legislation is not overturned. Collectors should also be concerned.
As someone who reads, studies, and writes about Australian gun law, I was surprised by the draconian museum mandates. I do not recall any public debate about the issue. I study legislative procedures. It appears this change was inserted without any actual consideration, about the effect on existing museums, their collections, and historical artifacts.

Australian law requires that legislation be re-enacted every five years. These changes were included in what would otherwise be a relatively unremarkable re-enactment of the firearms legislation.  As I read the description of proposed changes, I noticed all the changes were in the direction of more and more restrictions. Sunset laws only work when those affected by them actually have a voice in the legislature.

Museums already have extremely tight security, as required by law. I have not read of any incidents involving theft of guns from museums. Private collectors, in the legislation, are subject to less restrictions than museums.

Lithgow receives significant revenue from tourism. The Lithgow Small Arms Factory Museum is a significant draw for the city. The Lithgow City Council backs the museum in opposition to this onerous legislation.  From lithgowmercury.com.au
Lithgow City Council has thrown its support behind the Lithgow Small Arms Museum (LSAFM) after it found out that 70 per cent of the museums collection could be destroyed due to new regulations.

The new regulation for museums that went through in November 2017 states that all pistols, self-loading longarms, sub-machine guns or machine guns are to be rendered permanently inoperable.

The situation was brought to council's attention at its March meeting as a matter of great urgency by Cr Stephen Lesslie.
The legislation in Australia appears to be driven by the assumption that firearms, even in museums, are of little or no value. It appears to have taken many of the features from changes in European law about firearms collectors, and applied them to museums in Australia.

An alternate and potential concurrent explanation is that firearms in museums, even rendered temporarily inoperable, are a source of illicit arms for criminal purposes. I have not read of a single case where museum displays were stolen and used in crimes.

To students of firearms and enthusiasts about firearm history and technology, the requirement to destroy key working parts of rare and valuable collector items, to render the actions of firearms incapable of moving, are bizarre sacrifices to the gods of political correctness. It is a direct attack on gun culture and gun enthusiasts, for no serious purpose.

Firearms are centuries old technology. It is relatively easy for small shops to make fully automatic firearms, which has commonly been done in Australia on the black market.

Pistols are simple and easy to make, with commonly available machines, but sub-machineguns are even easier.

The Lithgow Small Arms Factory Museum is the premier firearms museum in Australia. It is a national treasure. Many of its exhibits are not duplicated elsewhere.

Requiring museum pieces to be destroyed because of a bizarre fear of theft from museums may be a step too far for Australian firearms regulators.

There is an allowance, in the current legislation, for police chiefs to make exceptions for firearms on an individual basis.

This places all the power in the police bureaucracy, allowing any future police chief to destroy museums at whim.

Relying on the long-term good will of a police bureaucracy is a bad strategy.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

TX: Pistol Whipped Homeowner Shoots, Kills Home Invader

Police said the homeowner was parking his car in the garage when invader went underneath the door and pistol whipped him. The homeowner grabbed his gun and fatally wounded the intruder. Police said the intruder was dead in the garage, while the homeowner had a large gash over his eye.

More Here

OH: Gunfight, Pizza Shop Employee, Robbery Suspect Wounded

The employees told police that the men ordered them to open the registers and give them money.

An employee was shot in the arm and leg. Police said it appears the employee returned fire and injured the robber after being shot.
More Here

Followup ID: Juors Find Keven C. Custer not guilty by Reason of Self Defense in Shooting of Chris Gunderson

Jurors in the two-day trial in Coeur d’Alene’s First District Court deliberated 90 minutes before returning a not guilty verdict for Keven C. Custer, who was on trial for aggravated battery with a deadly weapon.                                                                                                                                                                                                                                

More Here

Sunday, April 21, 2019

Bill to Allow School Districts, Teachers, to Protect Children Moves to Full Senate

Image from youtube

An Oklahoma bill to allow school boards to more easily protect their schools against armed attack is another step closer to passage.  Several schools in Oklahoma already do so. HB 2339 allows school boards more flexibility in their decisions.

On 13 March, 2019, HB 2339 passed the Oklahoma House by a nearly three to one margin. There were 72 votes for the bill, 25 against, and 4 excused. 

Oklahoma Senator David Bullard has been successful in passing Teacher Carry legislation, through the education committee. The bill will now go to the full senate.

House Bill 2336, by Sen. David Bullard, would allow a local board of education to adopt a policy to authorize the carrying of a handgun onto school property by school personnel who hold a valid reserve peace officer certification or who possess a valid handgun license.

“In a day and age where we’ve witnessed unthinkable acts of carnage to the most innocent among us, I’m proud to bring legislation that will allow the vulnerable to be protected. This bill provides local control by permitting a school that can’t afford a resource officer to still be able to protect their students from acts of violence,” said Bullard, R-Durant. “Schools can decide whether to use this protection or not. It’s a decision best left to local schools and law enforcement. This simply gives local schools the option of offering greater protection for their students - an option that could well save lives.”

Bullard noted that 24 other states have Teacher Carry including three neighboring states. Oklahoma private schools have had the policy in place effectively for six years.

People with concealed carry permits have been shown to be safer, and more law abiding, than police officers. The effect of the law would be to allow local schools to increase protection against school shootings without the expense of full time school resource officers. School resource officers cost between $50,000 and $80,000 a year for mere salary costs. Benefits are typically 40-80 percent of salaries, adding $20,000 to $60,000 to the cost per officer per year.

By allowing interested teachers, many of which have prior experience as police officers or in the military, to be armed while on the job in schools, there are no additional salary or benefits costs.

The bill simply allows boards of education to designate school personnel who already have training, to carry firearms at their school. This adds an additional level of security, and greatly increases the difficulty of planning for attacks on schools.

The bill does not differentiate between school personnel.  Any school personnel who possess an armed security guard and private investigator license, hold a valid reserve peace officer certification, or posses a valid hand gun license, and meet any other criteria required by the school board, would be available to be certified by the school board to carry at the school.

Teachers, administrators, maintenance personnel would all be available for a school board to recruit from.

The bill has been mischaracterized by Rolling Stone as "Arming Teachers with no weapon  training".

The bill does nothing of the sort. It simply allows school boards more discretion to increase the defensive capabilities at their school.

24 states currently allow school boards to determine who will be armed at their school.

No significant problems with armed school personnel have been noted in those states.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

IL: Gunfight, Career Criminal, Productive Father, both Killed

Court records show the suspected robber had an extensive criminal background with numerous arrests and felony convictions for gun and theft charges. The man was released from the Pinckneyville Correctional Center on stolen vehicle and gun convictions exactly a month to the day he was killed, state records show.

The elder Miller’s brother, 59-year-old Larry Miller, said he was not surprised to hear his brother defended himself during the shooting, using his own gun.

  More Here

LA: Man Attempting to Steal Generator Shot by Resident

One of two people New Orleans police said were trying to steal a generator from a home in the St. Roch neighborhood was shot in the chest by the home’s resident early Friday (April 19), NOPD said.
More Here

GA: Car Dealer Displays Pistol to Irate Customer

The salesman says he did not point the pistol at the irate father.

According to the report, the father arrived at the dealership "yelling and cussing" before "becoming more irate" and refusing to leave. The report says that the father told the salesman, "'you gonna have to make me leave, I got something for you'."

The salesman, the report says, told the father to "get the f*** off my property," but the father refused to leave "until he told the dealership how he felt." That's when the salesman went inside the dealership, got the pistol, and pointed it at the customer, the report says.
More Here

Saturday, April 20, 2019

Second Amendment Activist Jailed on Hearsay Evidence, claim of "obstruction"

Richard Hubbard, aka Picture Perfect on an open carry walk in Lafortune Park in Tulsa, Oklahoma,  2019. 

Second Amendment Activist Richard Hubbard has been arrested by Broken Arrow, Oklahoma, Police.  The arrest occurred on 8 April at Neinhuis Park. The police were called about an armed man in the Park. It is not illegal to carry a pistol in Neinhus Park. Hubbard reportedly was carrying an AR15 type pistol, which may look like a rifle to people who are not knowledgeable about firearms.  It was slung over his back. It is currently illegal to carry a rifle openly in the park, but will become legal as of 1 November, 2019.  From tulsaworld.com:
Broken Arrow police are defending the arrest of a Second Amendment activist in the face of accusations that officers overreacted and violated the man’s rights.

Police arrested Richard Hubbard, 37, at Neinhuis Park off Lynn Lane Road near 51st Street on Monday evening, according to a news release. The department reportedly had received several calls about an armed person, later identified as Hubbard, in the park.

Officers eventually used a pepperball launcher on Hubbard after he reportedly ignored commands from officers. Officers then arrested him on complaints of felony pointing of a firearm and obstruction. He was later posted a $15,500 bond and was released.
Constitutional Activist Richard Hubbard is known online as Perfect Picture. He has a Youtube channel with over 7,600 subscribers and dozens of videos.  Hubbard does what is known as First and Second Amendment Auditor.  He is openly carries firearms in places where it is legal to do so, and records his activities. The purpose of the action is to establish the right to bear arms and to record it. The presumption is that rights which are not exercised are degraded and lost over time.

A few weeks ago a First Amendment Auditor who routinely provokes authorities in Los Angeles, Zhoie Perez, was shot by a security guard as she pushed the envelope of what is lawful.  The Californian security guard has been arrested on suspicion of assault.

The police that arrested Richard Hubbard did not video his arrest. They did not wear body cameras. They claim he did not follow commands fast enough. He is said to have been recording on his phone.

Hubbard is a experienced auditor who has complied with police demands in the past.  He is reported to have been arrested and released several times in the past, without charges. He has been careful to comply with the law in past videos.

Link to video

Here is the aftermath of an arrest the police did not complete in Tulsa, Oklahoma on 23 November, 2018.

It is unclear what charges will be made against Richard. Assault (for allegedly pointing a gun at someone) and obstruction have been mentioned. He was released on a $15,000 bond. Part of the bond is that he turn over all his guns to the police until the court proceedings are completed.

No video of the arrest in Broken Arrow has been made available to the public. So far, there have been no claims by police that they observed Richard pointing a gun at anyone. Given Hubbards non-violent actions in the past, and the questionable nature of the charges, the requirement to turn over all his privately owned firearms shows the fragility of Second Amendment rights in some areas.

The police reaction to Hubbard's legal actions are cited by Second Amendment activists as justification for his activism.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch  

IL: Pit Bull that Attacked 9-Year-Old Shot by Aunt

The boy's aunt fatally shot the 2-year-old dog, which attacked the boy inside a home in the 9800 block of South Indiana Avenue about 8:15 p.m. Wednesday, according to the Chicago Police Department. The woman had a valid FOID card.
More Here

TX: Investigation of Man who shot Woman who Approached him with Mace and Taser

HOUSTON, Texas (KTRK) -- A man is in custody after police say he told them he shot a woman, who had mace and a Taser, because he thought he was about to be robbed.
More Here

TN: Domestic Defense, Son Shoots Aggressive Boyfriend of Mother

For safety reasons, investigators do not want us to show the house the man died at, but they say he was killed on the front porch by the woman’s son.

“The woman’s juvenile son went outside trying to get the man to leave, and a confrontation took place, and the juvenile ended up shooting Mr. Perry,” McGowan said.

But, McGowan says what happened on this county road in Weakley County is a tragedy.

“It’s a sad situation. A son protecting his mother,” McGowan said.
More Here

CA: Burglary Suspect who Broke into Home Shot, Wounded

The suspect — described as an adult white male — reportedly ran down the street and broke into another home. That homeowner, a man, told the suspect he had a gun but said the man did not leave.

The homeowner shot the suspect in the torso. The suspect was taken to a nearby hospital where he is reportedly in stable condition.
More Here

Friday, April 19, 2019

FL: Barber Shoots Armed Robbery Suspect

JACKSONVILLE, Fla — A man was shot inside a MetroPCS on Sunbeam Road while trying to rob the store around 5:30 p.m., the Jacksonville Sheriff's Office says.

JSO says the suspect fled after being shot, but was shortly taken to the hospital.

Police did not say whether the shooter was an employee or customer of the store. Brian Alvarenga, who works as a barber at Kut Kingz nearby, said an employee shot the gun in self defense.
More Here

MO: Armed Victim Shoots Robbery Suspect Three Times

Suddenly, the robber jumped from between two parked cars, police said. He had a handgun and tried to rob them, police say.

The intended victim pulled his own weapon from his holster, police said. He fired several shots at the robber, hitting him three times.
More Here

Fl: Worker threatens Boss, Points Gun, is Shot by Boss

Police say Green confronted Pressley and told him, "I'm gonna put one in you." Witnesses say Green charged his pistol and pointed it at Pressley. They say Pressley drew his pistol and shot Green three times.

Police say both Green and Pressley have valid concealed carry permits.
More Here

TN: Armed Neighbor Shoots Stray Dog that was Attacking Neighbor Children

"It wouldn't leave the kids alone. It wasn’t leaving the yard. I tried to poke it, it was too busy running around chasing after the kids, I mean I wasn’t going to wait for anyone to show up,” he said.

Miller shot the dog five times before it fell to the ground.

"I shot it. It just slowly walked. Shot it right here again, it was still standing I don't know if I'm missing it or hitting it. It did yelp once, but I can't let it suffer, so I ended it right here and it just fell over by the gas can."
More Here

Thursday, April 18, 2019

Jewels of Wisdom from Court Finding California Magazine Ban Unconstitutional

On 29 March, 2019, Judge Roger T. Benitez granted  a motion for summary judgement against California Attorney General Xavier Becerra in the case of Duncan v. Becerra.

California's Byzantine regulations and bans on firearms magazines of over 10 round capacity were ruled unconstitutional under the Second and Fourteenth Amendments of the United States Constitution.

I have read the decision by Judge Benitez. It is well worth reading. At 86 pages, many will not take the time and energy to read the densely argued document. 

Below, I have transcribed my choice of the jewels of this masterfully reasoned and written order. The selections are my own; others may disagree. They are in order, as found in the court document.  I list the pages as an aid to others.  Many will recognize the cogent arguments put forward by the Honorable Roger T. Benitez.  They have been made by Second Amendment supporters for decades.

Judge Benitez first shows how the California magazine ban fails the simple and obvious test of constitutionality under the Heller decision.

Page 1:  Individual liberty and freedom are not out moded concepts.“The judiciary is and is often the only protector of individual rights that are at the heart of our democracy.” --Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.
Page 5: As evidenced by California’s own crime statistics, the need to protect one’s self and family from criminals in one’s home has not abated no matter how hard they try. Law enforcement cannot protect everyone. “A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime. None of these policy arguments on either side affects what the Second Amendment says, that our Constitution protects ‘the right of the people to keep and bear Arms.’” Silveira v. Lockyer, 328 F.3d 567, 588 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc). However, California citizens, like United States citizens everywhere, enjoy the right to defend themselves with a firearm, if they so choose. To protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns.
Page 6: Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights. “An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.”
 Page 8: The Second Amendment protects the would-be American victim’s freedom and liberty to take matters into one’s own hands and protect one’s self and family until help arrives.
 Page 13: According to the U.S. Supreme Court’s reasoning, acquiring, possessing,or storing a commonly-owned 15-round magazine at home for self-defense is protected at the core of the Second Amendment.
 Page 14: Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California’s large-capacity magazine law.
 Page 15: Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment. The simple test applies because a magazine is an essential mechanical part of a firearm. The size limit directly impairs one’s ability to defend one’s self.
 Page 16: Neither magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment. Neither are they mentioned in Heller. But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.
 Page 20: To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning.
 Page 21: Certainly, a gun when abused is lethal. A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds, but it is not constitutionally decisive. Nothing in the Second Amendment makes lethality a factor to consider because a gun’s lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.
 Page 24: California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny.
Page 26:  In addition to their usefulness for self-defense in the home, of course, larger capacity magazines are also lawful arms from home with which militia members would report for duty. Consequently, possession of a larger capacity magazine is also categorically protected by the Second Amendment under United States v. Miller,307 U.S. 174 (1939). “Miller and Heller recognized that militia members traditionally reported for duty carrying ‘the sorts of lawful weapons that they possessed at home,’ and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.’” Caetano v. Massachusetts, 136 S. Ct. 1027, 1032 (2016) (Alito, J., concurring) (citations omitted).
 Page 27: To sum up, then, while detachable firearm magazines have been common for a century, government regulation of the size of a magazine is a recent phenomenon and still unregulated in four-fifths of the states. The record is empty of the persuasive historical evidence needed to place a magazine ban outside the ambit of the Second Amendment. Thus, it can be seen that California’s prohibition on detachable ammunition magazines larger than 10 rounds is a type of prohibition that has not been historically accommodated by the Second Amendment.
 Page 33: Moreover, there is no longstanding historically-accepted prohibition on firearms according to their “firing-capacity” except in the case of automatic fire machine guns. On the other hand, there is an indication that founding-era state regulations, rather than restricting ammunition possession, mandated citizens of militia age to equip themselves with ready ammunition in amounts of at least 20 rounds.
 Page 35: The ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of “arms” that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense. The prohibition extends to one’s home where the need to defend self, family, and property is most acute. And like the ban struck down in Heller, the California ban threatens citizens, not with a minor fine, but a substantial criminal penalty. 
 Next, Judge Benitez shows how, even under the Ninth Circuit's convoluted "Tripartite Binary Test with a Sliding Scale and Reasonable Fit" the California ban still fails miserably.

 Page 39: 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. Indeed, Heller itself rejected this mode of reasoning: “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e.,long guns) is allowed.”
 Page 40: When thousands of people are rioting, as happened in Los Angeles in 1992, or more recently with Antifa members in Berkeley in 2017, a 10-round limit for self-defense is a severe burden. 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.
 Page 43: 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.
 Page 46: The State’s theoretical and empirical evidence is not persuasive. Why 10 rounds as a limit? The State has no answer. Why is there no thought given to possession in and around a home? It is inconclusive at best. In fact, it is reasonable to infer, based on the State’s own evidence, that a right to possess magazines that hold more than 10 rounds may promote self-defense especially in the home as well as being ordinarily useful for a citizen’s militia use. California must provide more than a rational basis to justify its sweeping ban.
 Page 51: 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 59: No case has held that intermediate scrutiny would permit a state to impinge even slightly on the Second Amendment right by employing a known failed experiment. Congress tried for a decade the nationwide experiment of prohibiting large capacity magazines. It failed. California has continued the failed experiment for another decade and now suggests that it may continue to do so ad infinitum without demonstrating success. That makes no sense.
 Page 60: The “fit” of § 32310 is, at best, ungainly and very loose. That is all that it takes to conclude that the statute is unconstitutional. The fit is like that of a father’s long raincoat on a little girl for Halloween. The problem of mass shootings is very small. The state’s “solution” is a triple extra-large and its untailored drape covers all the law-abiding and responsible of its 39 million citizens.
 Page 61: A reasonable fit to protect citizens and law enforcement from gun violence and crime, in a state with numerous military bases and service men and service women, would surely permit the honorably discharged member of the U.S. Armed Forces who has lawfully maintained a magazine holding more than 10 rounds for more than twenty years to continue to keep and use his or her magazine. These citizens are perhaps the best among us. They have volunteered to serve and have served and sacrificed to protect our country. They have been specially trained to expertly use firearms in a conflict. They have proven their good citizenship by years of lawfully keeping firearms as civilians. What possibly better citizen candidates to protect the public against violent gun-toting criminals.
 Page 62:  Similarly, a reasonable fit would surely make an exception for a Department of Justice-vetted, privately-trained,citizen to whom the local sheriff has granted a permit to carry a concealed weapon, and who owns a weapon with a magazine holding more than 10 rounds. California’s statute does not except such proven, law-abiding, trustworthy, gun-owning individuals. Quite the opposite. Under the statute, all these individuals will be subject to criminal prosecution, should they not dispossess themselves of magazines holding more than 10 rounds.
 Page 62: Perhaps the irony of § 32310 escapes notice. The reason for the adoption of the Second Amendment was to protect the citizens of the new nation from the power of an oppressive state. The anti-federalists were worried about the risk of oppression by a standing army. The colonies had witnessed the standing army of England marching through Lexington to Concord, Massachusetts, on a mission to seize the arms and gunpowder of the militia and the Minutemenan attack that ignited the Revolutionary war. With Colonists still hurting from the wounds of war, the Second Amendment guaranteed the rights of new American citizens to protect themselves from oppressors foreign and domestic. So, now it is ironic that the State whittles away at the right of its citizens to defend themselves from the possible oppression of their State.
 Page 64: Lawful arms do not become unprotected merely because they resemble unlawful arms. “The Government’s proposed prophylaxis to protect against the violations of the few, we must burden the constitutional rights of the many turns the Second Amendment on its head. Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.” Mance v. Sessions, 896 F.3d 390, 405 (5thCir. 2018) (Ho, J.,dissenting from denial of rehearing en banc), pet’n for cert. filed(Nov. 21, 2018).
 Page 66: Kolbe concluded that large capacity magazines were beyond the protection of the Second Amendment. Id.at 137. The court reached that conclusion based on the thought that such magazines are “most useful” in military service. Id. That large capacity magazines are useful in military service, there is no doubt. But the fact that they may be useful, or even “most useful,” for military purposes does not nullify their usefulness for law-abiding responsible citizens. It is the fact that they are commonly-possessed by these citizens for lawful purposes that places them directly beneath the umbrella of the Second Amendment. Kolbe’s decision that large capacity magazines are outside the ambit of the Second Amendment is an outlier and unpersuasive. Beyond this, this Court is unpersuaded by Kolbe’s interpretation of Miller finding that weapons most useful for military service are not protected. The dissenting Kolbe judges persuasively pointed out that the approach turns Supreme Court precedent upside down. Id.at 156-57 (Traxler, Niemeyer, Shedd, and Agee, Js., dissenting) (“Under [that] analysis, a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military serviceundoubtedly a weapon of warand therefore not protected by the Second Amendment. This analysis turns Heller on its head.”).
 Page 72: Even safer may be a large capacity magazine on an AR-15 type of rifle as it is likely to be more persuasive when brandished at criminal assailants than would a five-shot revolver. It is worth noting that in evaluating the strength of the government’s fear of bystander injury, the State has not identified one incident where a bystander was hurt from a citizen’s defensive gun use, much less a defensive use of a gun with a high capacity magazine. The worrisome scenario is improbable and hypothetical.
 Page 74: The State argues that smaller magazines create a “critical pause” in the shooting of a mass killer. “The prohibition of LCMs helps create a “critical pause” that has been proven to give victims an opportunity to hide, escape, or disable a shooter.” Def. Oppo., at 19. This may be the case for attackers. On the other hand, from the perspective of a victim trying to defend her home and family, the time required to re-load a pistol after the tenthshot might be called a “lethal pause,” as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator planning an attack.In other words, the re-loading “pause” the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are disabled, or who have arthritis, or who are trying to hold a phone in their off-hand while attempting to call for police help. The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack. This blanket ban without any tailoring to these types of needsgoesto show § 32310’s lack of reasonable fit.
 Page 81: The State has not carried its burden to justify the restrictions on firearm magazines protected by the Second Amendment based on the undisputed material facts in evidence. That is not to be lamented. It ought to provide re-assurance. To borrow a phrase, “[j]ust as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, [and] . . . the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive,” it is the proudest boast of our Second Amendment jurisprudence that we protect a citizen’s right to keep and bear arms that are dangerous and formidable.
Near the end of the document, Judge Benitez eviserates the attempt by the State of California to define ordinary magazines as "a nuisance". 

 Page 82: Casting a common sized firearm magazine able to hold more than 10 rounds as a nuisance, as a way around the Second Amendment, is like banning a book as a nuisance, as a way around the First Amendment. It conjures up images from Ray Bradbury’s novel, Fahrenheit 451, of firemen setting books on fire, or in this case policemen setting magazines on fire. 
The conclusion of the order is exceedingly well done. I have not cut or edited it. It is on page 84-85 of the court document.
 Page 84-85: Magazines holding more than 10 rounds are “arms.”California Penal Code Section 32310, as amended by Proposition 63, burdens the core of the Second Amendment by criminalizing the acquisition and possession of these magazines that are commonly held by law-abiding citizens for defense of self, home, and state. The regulation is neither presumptively legal nor longstanding. The statute hits at the center of the Second Amendment and its burden is severe. When the simple test of Heller is applied, a test that persons of common intelligence can understand, the statute fails and is an unconstitutional abridgment. It criminalizes the otherwise lawful acquisition and possession of common magazines holding more than 10 rounds magazines that law-abiding responsible citizens would choose for self-defense at home. It also fails the strict scrutiny test because the statute is not narrowly tailored it is not tailored at all. Even under the more forgiving test of intermediate scrutiny, the statute fails because it is not a reasonable fit. It is not a reasonable fit because, among other things, it prohibits law-abiding concealed carry weapon permit holders and law-abiding U.S Armed Forces veterans from acquiring magazines and instead forces them to dispossess themselves of lawfully-owned gun magazines that hold more than 10 rounds or suffer criminal penalties. Finally, subsections (c) and (d) of § 32310 impose an unconstitutional taking without compensation upon Plaintiffs and all those who lawfully possess magazines able to hold more than 10 rounds.68Accordingly, based upon the law and the evidence,upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted.69California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.
 This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler. The freedom they fought for was not free of cost then, and it is not free now.
 Judge Benitez has done the Republic a valuable service. He has shown himself highly capable, and more importantly, seriously committed to the rule of law.  The Nation, and no doubt, President Trump, are taking notice.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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