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Speaker 1: Adam. California law has prohibited buying or selling the magazine

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Speaker 1: since two thousand, but in November of California voters approved

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Speaker 1: the Proposition sixty three, which prohibited even possessing them. So

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Speaker 1: what was the judge's reason for not allowing that to

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Speaker 1: go into effect? Well, the judge here, Judge Robert Benitez,

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Speaker 1: of the Federal District Court here in California, said that

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Speaker 1: the government did not provide sufficient evidence to support the

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Speaker 1: argument that banning these magazines would enhance public safety. The

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Speaker 1: court said that these magazines are protected by the Second Amendment,

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Speaker 1: they are commonly used by law abiding people, and thus

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Speaker 1: the government had to show that banning them actually further

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Speaker 1: public safety, and the court said that there was insufficient

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Speaker 1: evidence in the record to prove that point. So Adam

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Speaker 1: to to June was talking about how how what was

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Speaker 1: new with the spout initiative was the notion that people

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Speaker 1: could no longer possess them as opposed to just transferring them.

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Speaker 1: Was this idea that that people might have to give

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Speaker 1: up weapons or or or ammunition that they already own?

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Speaker 1: Was that something unique to California? Have other jurisdictions tried

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Speaker 1: this before? And how have they how have they fared

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Speaker 1: in court? Um? Well, other jurisdictions have tried this before

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Speaker 1: and have succeeded before. UM. We've seen UM other restrictions

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Speaker 1: on high capacity magazines, and more importantly, we've seen in

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Speaker 1: other contexts we've seen government take something that was once

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Speaker 1: lawful and make it unlawful. Um. We do that all

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Speaker 1: the time. For instance, with environmental regulation, we tell a

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Speaker 1: factory that its equipment is no longer lawful and it

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Speaker 1: must change its equipment or suffer legal consequences. What was interesting, though,

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Speaker 1: was the court's opinion. The Court was definitely worried about

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Speaker 1: the fact that law abiding people wouldn't understand that these bands,

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Speaker 1: that this band had gone into effect and would be

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Speaker 1: made outlaws unwittingly. And what about the judge in Sacramento,

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Speaker 1: what was his thinking and upholding the same ban. Well,

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Speaker 1: the judge and Sacramento really followed the circuit courts UH,

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Speaker 1: including the Ninth Circuit Court of Appeals, which have almost

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Speaker 1: UH uniformly have now uniformly suggested that restrictions on high

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Speaker 1: capacity magazines are constitutionally permissible, that they do further the

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Speaker 1: governments and in public safety by making it harder, for,

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Speaker 1: for instance, a mass shooter to shoot more than ten

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Speaker 1: rounds of ammunition without having to stop and reload the firearm. UH.

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Speaker 1: And indeed, I think that Judge beneath us his decision

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Speaker 1: is not likely to last long. The Ninth Circuit, in

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Speaker 1: a case out of sunny Vale, just a couple of

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Speaker 1: years ago, suggested in a preliminary injunction context that a

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Speaker 1: ban on high capacity magazines was constitutionally permissible. Adam, I

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Speaker 1: want to ask you about something you mentioned at the beginning.

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Speaker 1: You mentioned that the judge said that this was these

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Speaker 1: high capacity magazines were in common use, and that a

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Speaker 1: phrase from the big Supreme Court decision, the Heller decision.

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Speaker 1: Can you just explain how courts have gone about figuring

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Speaker 1: that out. It sort of seems to me that there's

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Speaker 1: there's potentially something circular about that phrase, because something uh

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Speaker 1: can't be in common use. I guess if if courts

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Speaker 1: are allowing them to be banned, that's right. The court

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Speaker 1: in the Screme Court in the Heller case confronted the problem,

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Speaker 1: which is that the Second Amendment refers to a right

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Speaker 1: to keep and bear arms. But how do you know

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Speaker 1: which arms are protected and which are not. Presumably, even

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Speaker 1: if handguns are protected, things like nuclear weapons or shoulder

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Speaker 1: launched missiles would not be protected, even though technically they

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Speaker 1: are arms. And so what the court said was that

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Speaker 1: firearms that are in common use by lawful citizens, by

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Speaker 1: law biding citizens, are protected by the Second Amendment. But

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Speaker 1: there is an element of circularity because although hell Are

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Speaker 1: was deemed to be a triumph of originalism, because Justice

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Speaker 1: Scalia look to the original framing history to decide the

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Speaker 1: meaning of the Second Amendment. By looking at whether guns

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Speaker 1: were in common use today, it seems to suggest that

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Speaker 1: today's gun laws will shape gun control and shape the

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Speaker 1: Second Amendment. The machine guns are not in common use

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Speaker 1: because we've had gun laws restricting machine guns for almost

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Speaker 1: a century. So, Adam, what's going to happen now? The

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Speaker 1: Ninth Circuit has already ruled on this and Judge Benitez,

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Speaker 1: I guess, is asking to be overturned or will both

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Speaker 1: cases go to the Ninth Circuit? Well, I think there

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Speaker 1: is no doubt that the Attorney General Xavier Bassarah is

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Speaker 1: going to appeal Judge Benitez's denial of an injunction to

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Speaker 1: the Ninth Circuit. Um I suspect that the Ninth Circuit

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Speaker 1: will act pretty quickly to overturn it. I don't know

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Speaker 1: that Judge Benitez was hoping to get overturned. I think

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Speaker 1: he was trying to make a distinction. He said in

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Speaker 1: the earlier Ninth Circuit case, there was more evidence in

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Speaker 1: the record to support the claim, but there wasn't so

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Speaker 1: much evidence in the record in this case. Um. I

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Speaker 1: don't think that's going to stand a pallet review in

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Speaker 1: the long run, but provides a basis for distinguishing the cases.

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Speaker 1: And I want to ask you about one other California

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Speaker 1: gun development and that's this case that I know you

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Speaker 1: were watching, where gun rights advocates were asking the Supreme

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Speaker 1: Court to essentially say there's a right to carry a

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Speaker 1: weapon either concealed or openly in public, and the Supreme Court,

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Speaker 1: after thinking about it and thinking about it, said no,

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Speaker 1: we're not going to take up that appeal. What do

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Speaker 1: you make of that, especially in light of the fact

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Speaker 1: that that, as you and I have discussed, the Supreme

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Speaker 1: Court has repeatedly refused to take up this issue. That's right. Well,

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Speaker 1: this is the Peruta case out of San Diego, and

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Speaker 1: it challenges the discretionary permitting policies that Los Angeles count our, sorry,

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Speaker 1: the California's counties with major cities like Los Angeles and

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Speaker 1: San Diego and San Francisco. Um, they really don't give

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Speaker 1: too many of these permits away. Uh and uh. This

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Speaker 1: was the Supreme Court's refusal to hear the case was

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Speaker 1: perhaps the most important non decision of the Supreme Court's

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Speaker 1: term because it lets stand these discretionary permitting laws that

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Speaker 1: are in effect in so many of America's major cities.

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Speaker 1: To put in perspective, if the Court had decided the

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Speaker 1: case and how that there was a right to carry

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Speaker 1: a gun in public and that this kind of discretionary

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Speaker 1: permitting was unconstitutional, we'd likely go from Los Angeles County

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Speaker 1: having about three d forty one people with concealed carry

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Speaker 1: permits to Los Angeles County having over three hundred thousand

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Speaker 1: concealed carry permits about thirty seconds adam. If if the

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Speaker 1: Ninth Circuit rules as we expect, are there other circuits

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Speaker 1: in conflict with the Ninth Circuit that this may go

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Speaker 1: up to the Supreme Court. So far, there is no

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Speaker 1: circuit split either on whether there's a right to carry

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Speaker 1: a firearm with discretionary permitting, or bands on high capacity

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Speaker 1: magazines