DUNCAN V. BONTA GOES TO SCOTUS CONFERENCE - California Large Capacity Magazine Prohibition

[tenemae]

My largest source of pessimism comes from the fact that we are in an unusual period of SCOTUS being willing to take 2A cases. Pre 2000, the last significant 2A case was Miller in 1939. Then we got Heller in 2008 and McDonald in 2010 which broke the seal on 2A issues. A bunch of movement happened locally eventually bubbling up to SCOTUS (Caetano 2016, Bruen 2022, Rahimi, Hermani, Wolford). I don't think SCOTUS is going to be willing to continue the trend. I expect them to drop a final opinion to last us a while (maybe that was Wolford?) and leave it be for a decade or two.

 

[BeAuMaN]

I don't think so. Bruen is a mess; they're going to continue fiddling with it. That doesn't mean they'll take a bunch of cases, but I don't think they'll stop taking cases for a decade or two.

 

[tenemae]

I sure hope so. Alito dropped Wolford with a complete guideline of how to apply step two. That felt like a "in case you didn't understand Bruen I'll lay it out one more time". He also did address step one as well, though more tersely than he should have. I would like that to be fleshed out more, but I'm afraid we may be at the end of the 2A train. It seems like Wolford was written broadly specifically because SCOTUS doesn't want to keep addressing every nuance that each issue might bring up individually. It was a blanket "here's how to do 2A. Stop asking".

 

[BeAuMaN]

I suppose if everything is GVRed then perhaps it might be going that way, at least SCOTUS would hope for that...

SCOTUS has a lot of hopes about not having to invest political capital into addressing 2A issues.

Also though: Let's say Duncan GVRs back, En Banc sends it back down and the case does the same song and dance, and the ultimate result is that in the 9th is 11+ rd mags aren't protected in any way whatsoever by 2A.

This happens, and let's assume SCOTUS still has the same rough makeup more or less. Do you think they're not going to issue any opinion of some type in some case to provide guidance against that?

I don't think they'd leave it at that. At that point SCOTUS is either going to try an indirect route of saying 9th circuit (and other similar circuits) did it wrong AGAIN, or they're going to take up the case itself and declare some reason why they're protected, and actually spend the political capital to do so.

To be clear: When I talk about political capital, what I mean is: SCOTUS doesn't want the headline of them declaring, DIRECTLY, that AR-15s/"assault weapons" are protected by 2A, or that 30 round magazaines are protected by 2A, and that these state governments can't ban or can barely regulate them. Especially Roberts.

Also when I say Bruen is a mess, what I mean is it's very fiddly. I would have preferred Strict Scrutiny, but tiers of scrutiny have fallen out of favor among SCOTUS.

 

[tenemae]

Also though: Let's say Duncan GVRs back, En Banc sends it back down and the case does the same song and dance, and the ultimate result is that in the 9th is 11+ rd mags aren't protected in any way whatsoever by 2A.

We all know that would be the case. Would SCOTUS step in? I honestly don't know. They'd need to craft a legal test to determine what "clashes with the plain text of the second amendment". But that's an extremely blurry line. The second "subsidiary question" of Alito's "first step test" states: "does it concern any form of “Arms,” i.e., any weapon customarily used for offensive or defensive purposes?"
We could imagine the answer to that question when asking about a magazine or suppressor and the justifications for that conclusion. But how would any possible conclusion rationalizing magazines as being Arms not also apply to something like Cerakote? Does camouflaging a rifle serve any second amendment purpose? I'd argue yes. I could certainly argue it's "customary" (suppressors, maybe not). But how can we look at anyone with a straight face and say "It's my second amendment right to own spray paint". This argument eventually applies to basically everything and anything. If I can bludgeon someone to death with a bust of J Edgar Hoover, does that make it an arm? Can the government ban it? Bludgeoning weapons are certainly customarily used for offense and defense. Can California implement a "roster of not-unsafe bludgeons certified for sale"?

I'm not sure this is a question SCOTUS can address, let alone wants to address. So they'll be required to treat the second amendment like the stone of sisyphus- forever pushing it up the legal landscape. I just don't see it happening.

SCOTUS doesn't want the headline of them declaring, DIRECTLY, that AR-15s/"assault weapons" are protected by 2A, or that 30 round magazaines are protected by 2A

100% agree. Which is why I think SCOTUS is going to abandon us for a while. At least until it's no longer politically uncomfortable to do so. And that abandonment might be Monday with a GVR of Duncan, a pat on the head, and a "good luck".

 

[shroom]

GVR would be much better than a denial, at least.

 

[tenemae]

I don't see any possible future where SCOTUS denies Duncan. They've already GVR'd it once using Bruen, demonstrating that the 9th got it wrong , and just laid down an almost carbon-copy of Bruen again that can easily be used to GVR it a second time. We're not waiting for a denial of cert. We're waiting for an acceptance of cert, a GVR, or god willing, a per curiam.
One could argue that SCOTUS needs to address CA9's argument that magazines are not arms. However in the en-banc opinion itself, they assert they can "regulat[e] components necessary to the firing of a firearm"- admitting themselves that magazines are necessary to the firing of a firearm and must therefore constitute arms. I don't think per curiam is impossible (though I may be delirious from the pressure of waiting for the decision)
And a little last-minute speculation is always fun

 

[DB>)>]

OOF, reading the footnote on p2 (.pdf p30) of ACB's concurring opinion reads to me that the conservative Justices are about fed up with having to explain "shall not be infringed" to the wishy washy s.

Her concurring blasting of the Black Codes says much about the growing impatience with the completely bogus attacks on 2A rights, and her final paragraph perfectly addresses the continuing attacks on 2A by those who just hate guns:

"Applying old principles to new circumstances is not always easy. This case, however, is not hard. While most Hawaiians might prefer that no one carry firearms in public places, a majority’s opposition to a constitutional right is not a permissible basis for restricting it. After all, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy” and“to place them beyond the reach of majorities and officials.”


Even more "interesting" is the dissent (sorry, 31 page temper tantrum) from the Judge that can't define what a woman is, and yet redefines "premises" so it fits her opinion, and apparently doesn't have a clue about Black Codes and why it would be unconstitutional to criminalize protected conduct by otherwise law abiding individuals to protect the "property rights" of other favored individuals.... I truly believe she could lose an intellectual argument with a bag of socks! AND it is truly terrifying to realize such an intellectual midget rose to such a position of authority!

She completely ignores that her interpretations of the sloppy HI law would leave OLAI (Otherwise Law Abiding Individuals) at extreme risk of facing serious criminal charges, for no reason other than "guns bad" and it would be too difficult to have a law that said something to the effect of: property/buisiness owners can invite criminal activity like minded customers by prominently posting a "no guns allowed" sign at their front door... because letting criminals know they have to leave their guns at the door will work super duper effectively better that allowing lawful CC holders to exercise their rights, right?!

Honestly, SCOTUS really has the incentive to shut down the lower court and legislative clown show, and a favorable ruling almost writes itself in Duncan with the anti-gun pretzel logic of the anti-2A club.

 

[DB>)>]

I don't see any possible future where SCOTUS denies Duncan. They've already GVR'd it once using Bruen, demonstrating that the 9th got it wrong , and just laid down an almost carbon-copy of Bruen again that can easily be used to GVR it a second time. We're not waiting for a denial of cert. We're waiting for an acceptance of cert, a GVR, or god willing, a per curiam.
One could argue that SCOTUS needs to address CA9's argument that magazines are not arms. However in the en-banc opinion itself, they assert they can "regulat[e] components necessary to the firing of a firearm"- admitting themselves that magazines are necessary to the firing of a firearm and must therefore constitute arms. I don't think per curiam is impossible (though I may be delirious from the pressure of waiting for the decision)
And a little last-minute speculation is always fun

Hmm, I think that means they themselves raised the problematic Mag Disconect REQUIRING a magazine to fire a gun... just hope we get to see it argued SOON!

 

[Dvrjon]

29 June Orders do not appear to contain Duncan. https://www.supremecourt.gov/orders/courtorders/062926zor_1bn2.pdf

Also not seeing anything on Gator’s, Viramontes, Nat’l Associate of Gun Rights or Grant.

 

[exnds]

3rd Circuit ANJRPC decision now “anticipated” late July or early August as I’m sure they’ll need more time to update their ruling based on Wolford. Supplemental briefing was also filed by plaintiff June 26 regarding Wolford.

 

[Dvrjon]

3rd Circuit ANJRPC decision now “anticipated” late July or early August. Supplemental briefing was filed by plaintiff June 26 regarding Wolford ruling.

Wolford decision may impact this decision. On Jun 26, Appellants notified the Court that Wolford disturbs the governments Step 1 analysis by rejecting New Jersey’s position that “common use” is a threshold issue.

https://storage.courtlistener.com/recap/gov.uscourts.ca3.123103/gov.uscourts.ca3.123103.117.0.pdf

 

[BeAuMaN]

29 June Orders do not appear to contain Duncan. https://www.supremecourt.gov/orders/courtorders/062926zor_1bn2.pdf

Also not seeing anything on Gator’s, Viramontes, Nat’l Associate of Gun Rights or Grant.

Unless something weird happens, it's kind of as I suspected: they'd just do nothing and let Duncan carry over. See you in October .

 

[Dvrjon]

Unless something weird happens, it's kind of as I suspected: they'd just do nothing and let Duncan carry over. See you in October .

SCOTUS dropped 4 opinions today (No 2A) and has announced that tomorrow is the last day of this Session. Looking at last year’s summer work, the orders were for denied rehearing; habeas denials, etc. Basically ongoing maintenance activity.

Next Session Opening Conference is on Monday 28 September.

 

[BeAuMaN]

Yeah but allegedly there won't be a conference day until October 9th, so I imagine we wouldn't hear about any further movement on Duncan until October 13th (since Monday is a Holiday)

 

[SilverEndless]

I am very surprised. With Alito spelling out how to apply Bruen so thoroughly in Wolford, my not-a-lawyer gut said GVR was inevitable.

 

[1911-CV]

Wolford spelled out "Step 2" - how to apply historical analogues, but not "Step 1" - what is protected....

We'll need SCOTUS to take up another case to spell out whether AR's, magazines, silencers, etc. are protected.

 

[Dvrjon]

Yeah but allegedly there won't be a conference day until October 9th, so I imagine we wouldn't hear about any further movement on Duncan until October 13th (since Monday is a Holiday)

There is a run-up to starting. The Sep conference is the “Long Conference” as it takes up the majority of the petitions filed over the summer (over 2k). That will continue tapering down into Nov. So yeah, these carry overs will probably not rise up until probably mid-late Oct.

The distribution schedule is here: https://www.supremecourt.gov/casedistribution/casedistributionschedule2026summer.pdf

 

[mcnaugcl]

Duncan relisted for conference today. No. 23.

 

[Dvrjon]

Looks like we just went into overtime.

Gator’s
Duncan
Viramontes
National Association of Gun Rights
Grant

Are all on the docket (with a bunch of other stuff, I’m sure).