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Sunnydale case: Justice Kennedy asks for response
Scotusblog has it here. A brief summary: the city of Sunnydale, CA, enacted a ban on magazines holding more than ten rounds. It was challenged in US District Court, with a motion for preliminary injunction (to stay enforcement of the law while the case was under consideration). The District Court denied the motion, which was appealed to the Ninth Circuit, which also denied it. That denial was in turn appealed to the U.S. Supreme Court.
I'd have given it low odds there -- the Supreme Court is unlikely to trouble itself with whether a city ordinance should be stayed for the months necessary to dispose of a case. But in the latest development, Justice Kennedy (who handles emergency motions from the Ninth Circuit) ordered the city to respond by 5 PM tomorrow. This indicates at the least that he did not want to deny the motion out of hand. Whether it means more, will have to see.
UPDATE: the motion is online here. It's well-written, I think.
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Could someone suggest the possible outcomes of this?
In denying the injunction, one judge relied on information indicated that firefights average only a few shots, and reasoned that surely 10 are more than enough.
That's a very naive application of statistics.
The best data I have indicate that, on average, police officers hit their target once in seven shots. I'm sure they all do much better at the range, with feet firmly planted, good visibility, and targets that don't run or shoot back. But, in the field, it's one in seven, an 86% miss rate.
I posit that it is unreasonable to require citizens to shoot better than their professional police.
For the sake of simplicity, I'm neglecting the fact that, on average, it takes more than one shot to stop an attacker. That simplifies the math, and makes an assumption least favorable to my point.
So if a citizen is limited to 10 rounds, what are his chances of scoring at least one hit, if attacked? The probability of missing with one shot is .86. The probability of missing with both of two shots is .86 x .86. The probability of missing with 10 shots is .86 x .86 ten times, or .86^10. That equals .22. A citizen, shooting as well as the average policeman, has a 22% chance of exhausting 10 rounds without making a hit. That is not very safe. With protective ammunition exhausted, the citizen is subject to continued attack.
So how safe is a citizen entitled to be? Or a police officer, for that matter? Reducing the chance of missing on all shots to below 10% requires 16 rounds. Getting it to below 5% requires 20 rounds.
Perhaps that will explain why police and citizens alike prefer firearms with adequate magazine capacity.
From what I recall, when you live on the Hellmouth it doesn't matter how many rounds your gun holds.
SunnyVale not SunnyDale. It is southeast of San Francisco, almost to San Jose, in Santa Clara County. Another CCW non-issue county that will be slapped once Peruta becomes final.
Does anybody know why this hasn't been challenged on state preemption law? Is this a matter of going for a better win for gun rights first?
State pre-emption is very narrow and does not apply here.
See Government Code 53071 and 53071.5, for a section that is written broadly.
I posit that the supremacy clause coupled with the 2nd amendment says no government may pass any law that infringes on the God given Right to keep and bear Arms, including magazine capacity, and that all the judges who have attempted to split hairs simply are pulling things out of a really dark and stinky place. Yes, I do not care for judges who claim superiority when in fact they are subordinate to our Constitution and hold absolutely NO authority to interpret. Fundamental law theory as stated by Hamilton. Se also Blackstone's Book I. And many other reasons. We just think they have such authority because we have been brain-washed in public/government schools. Barron (1833) was one of the many early WRONG decisions by the SC.
FWB -- Supremacy clause ONLY applies to certain aspects of the law. The Constitution was not intended to limit the state governments originally, except in those specific cases where it said something explicit on the matter, where the federal government was explicitly given exclusive jurisdiction, or in cases concerning federal statutes to carry out an explicitly federal power.
Until the Bill of rights was incorporated against the states by the 14th Amendment, NONE of the BOR applied against the states (from a federal perspective -- each state was free to bind itself to them).
Since SCOTUS didn't apply the 14th Amendment as automatically incorporating ALL of the rights explicitly guaranteed in the Constitution as applying to the States as well as the federal government, recognition of the Second Amendment as being one of the rights incorporated awaited the MacDonald case. (Remember, Heller concerned a federal enclave, not a state.)
As of 1829, the law texts (See Rawle) in fact stated that the Bill of Rights bound the states AND the feds. It was in 1833 when the SC in Barron decided the BoR did not bind the states.
Incorporation using the 14th is another of the bogus thefts of power by the judges. The 14th never was about Rights but is about privileges and immunities. The Courts caused problem and are trying to rectify things while not impugning the name of the holy Marshall. Interesting that no one came up with incorporation until the late 1930s. And the additions of the 15th and 19th amendments paint a very different picture as to the extent and meaning of the 14th.
Continue if you wish but what folks think they know and what is supposed to be are often very different.
In the development of the BoR, only the 1st was singled out as applicable solely to the fed as per Madison. While Madison had originally wanted to put the BoR within various parts of the original Constitution, i.e. Article I Section 9 and others, that was not done and his position was repudiated.
I do love have some folks can see that words just don't have their full meaning in all cases but that there may be some places where we can manipulate things to get our way. It's like the court claim that the word "the" in "execute the laws of the Union" doesn't mean ALL the laws only some. Then of course it requires crystal balls in order to elucidate which some.
Minor point: the city is SunnyVale.