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Supreme Court ruling puts California gun magazine ban in doubt

 July 1, 2022 at 12:27 PM PDT

S1: The Supreme Court ruling on gun control laws is felt here in California.
S2: The Ninth Circuit did not apply the test , but the Supreme Court said was applicable to gun restrictions.
S1: I'm Maureen CAVANAUGH. This is KPBS Midday Edition. The California Center for the Arts. Escondido moves forward with its street art exhibit , including its controversial police imagery.
S3: The artwork has nothing to do with the fine folks who work in Escondido or any particular police department or officials or authority figures. It is satirical. It's in the abstract.
S1: That's ahead on Midday Edition. Last Friday , the U.S. Supreme Court struck down a concealed carry gun law from the state of New York. And it's taken just a week for that decision to make an impact here in California. In one of its last acts this term , the Supreme Court vacated a ruling that supported California's ban on gun magazines that hold more than ten bullets. That case originated in San Diego. The justices advise the Ninth Circuit to review that ruling in light of the Supreme Court's new guidance on gun restrictions. Here to explain the court's action is KPBS legal analyst Dan Eaton. And , Dan , welcome.
S2: Thank you , Ari. Good to be with you.
S2: What does it mean is that by itself the Supreme Court has invalidated the magazine restriction law if asserted back to the ninth Circuit for further consideration. In light of the fact that the Supreme Court's test , which it applied in this recent case , the New York Rifle and Pistol Association case , was different from the one the Ninth Circuit applied the Duncan case. Okay.
S1: Okay. So the Supreme Court ruling on the New York concealed carry law found that New York made it too difficult to get a concealed carry permit.
S2: Now , you have just asked the absolute core question. The reason they are relevant and this you can only tell by reviewing the Ninth Circuit decision is that the Ninth Circuit did not apply the test that the Supreme Court said was applicable to gun restrictions specifically. The Supreme Court has said that a Texas history and tradition test must be applied when you are evaluating gun restrictions. That's what the Second Amendment right to keep and bear arms requires. The Ninth Circuit applied a very different test , which first said whether the particular restriction involved is Second Amendment right to keep and bear arms , whether it evolved , it affected the conduct that's protected by the Second Amendment. And then the second test was applied intermediate scrutiny to see whether the regulation chosen was a reasonable fit with the goal in this case , California's goal being to limit the effects of mass shootings , which are obviously made more possible by high capacity magazines. So that's the test. The use of the Supreme Court said that is wrong. The test that the Supreme Court said ought to be used was the very test that Judge Patrick Roberts , who was based in San Diego , applied to , say , the majority in this 7 to 4 ruling got it wrong in upholding the magazine restrictions.
S1: Can you give us a brief summary of that case ? It was brought by the California Rifle and Pistol Association and gun owners here in San Diego. And it challenged the limit on the number of bullets that can be in gun magazines in California.
S2: That's exactly what it did and what they said. They actually had a couple of different documents. One was that it burdened the Second Amendment right to keep and bear arms. The other is that it essentially it affected the taking of property without proper compensation. But the real focus is on the burden on the Second Amendment right. And what the Ninth Circuit said was that , well , the magazine restriction actually is an imperfect but reasonable way of advancing the state's interest in preventing deaths from mass shootings. And it's a minimal burden , said the Ninth Circuit. In applying this analysis , which Supreme Court has just jettisoned in the sense that there is a minimal burden because it only requires someone to pause after exhausting ten rounds and then putting another set of ten rounds in the cart. But that is what the case was of the ninth Circuit. 7 to 4 ruling said that the magazine restrictions did survive the constitutional muster. The Supreme Court has said that is just the walk test. Judge Patrick Roberts has already done the work that the Supreme Court said the Ninth Circuit has to do on limit. It remains to be seen , however , as to whether the Ninth Circuit reaches the same result that Judge Roberts did in his dissent is saying that applying that test means that the magazine restrictions have to be thrown out.
S1: Now , California yesterday continued in. It's efforts to limit guns in the state. Governor Gavin Newsom signed two bills aimed at limiting ghost guns and preventing marketing of guns toward minors.
S2: You are going to see legislative analysis , the legislative analysts that the state legislature employs. Apply the Texas history and tradition test to determine whether these regulations pass muster. I mean , what Judge Boomer Casey said in his dissent with respect to the magazines is that the clear picture emerges , and I'm quoting , that firearms with large capacity capabilities were widely possessed by law abiding citizens by the time of the Second Amendment incorporation into the Constitution. He goes on to say , The fact is those high capacity magazines are widely used for self-defense , which is at the core of the Second Amendment. And he says , quote , This is evident from the fact that as many as 100 billion such magazines are currently lawfully owned by citizens of this country. That is the kind of analysis that will have to be done in determining whether these gun regulations and laws that are being passed will ultimately pass constitutional muster. And we can expect that the Supreme Court , in light of this recent ruling , will be skeptical to the extent that these laws are passed and they do pose a restriction on gun ownership and related issues to the Second Amendment right to keep and bear arms.
S1: Is there any way to tell how far the Supreme Court's new guidance on gun laws will extend ? And I guess what I mean by that is.
S2: But the interesting thing about the test is that it doesn't necessarily point in one direction or the other. It is clear that what California has allowed in the form of restrictions , some of them are going to be struck down now under this new test. And yet it is very clear that there are a whole host of restrictions that are still very much allowed , as Judge Roberts points out , even Heller in 2008 , which established the individual right to keep and bear arms under the Second Amendment , said Justice Scalia in writing , said , quote , Nothing in our opinion , should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. Or laws forbidding the carrying of firearms at sensitive places such as schools , government buildings. Or laws imposing conditions and qualifications on the commercial sale of arms. Close quote. In other words , the Second Amendment is no more absolute right than the First Amendment right to free speech. But as Justice Thomas said in writing the recent opinion , the Second Amendment is not going to be treated as a second class constitutional right.
S1: Finally , a news that seemed almost overshadowed by the court's many rulings. Tunji Brown Jackson was sworn in yesterday , becoming the first African-American woman on the Supreme Court. And Dan , you recently met the court's newest justice. Tell us about that.
S2: That was pretty incredible. Actually , I met her on June four. She obviously is a Harvard College and Harvard Law School graduate and former president of Harvard Law School Association. So I went back in June for a meeting. She was actually there and I didn't realize it until someone announced that fact. We were having lunch at Harvard's library at Weidner. Well , obviously at the end of the lunch , nothing was going to stop me from meeting her. So I made a beeline to her and talked to her a very briefly. But this is going to be a fascinating term for her to get her feet wet and presumably she is going to serve for decades to come.
S1: I've been speaking with KPBS legal analyst Dan Eaton. And Dan , thank you so much.
S2: Thank you , Ari. Happy 4th of July.
S1: This is KPBS Midday Edition. I'm Maureen CAVANAUGH. Despite the controversy , the artwork called Three Slick Pigs is remaining part of the Street Legacy SoCal style Masters exhibition at the California Center for the Arts , Escondido. The mixed media piece presents a graffiti marked black and white photograph of police in riot gear with a fiberglass sculpture of three Porky Pig figures in the front. Negative reactions to the piece from Escondido officials prompted the art center to convene a special meeting to discuss the possible removal of the art. But in the end , the trustees reaffirmed their commitment to the exhibition and all the works in it. Joining me is Dr. James Dechant , art historian at Point Loma Nazarene University and co-curator of the SoCal Masters exhibition. And Jim , welcome to the program.
S3: Well , I appreciate being here. Thank you.
S1: Now , this exhibit features street art. It's one of your specialties. Is it difficult to translate the meaning and impact of street artistry in a white walled art space ? Absolutely.
S3: It's definitely difficult. Once you move something from street culture into the clean white walls of a gallery , it gets interpreted differently and you get a different audience and they take their time and attention to the artwork in a different way.
S1: Now , the Three Slick Pigs artwork is described as , quote , a satirical look at excessive police force and abuse of power with imagery from the Three Little Pigs fairy tale. But it's not exactly a breakthrough concept to compare police officers to pigs. That's been happening for 60 years. So what's especially compelling about this piece ? Yeah.
S3: So what's compelling about the exhibit altogether and the piece in general is that we've invited a number of artists from subcultures within what we call street culture , which includes graffiti , street art , tattoo lowriders , surf , skate culture. And these are perspectives that we often don't see in the museum or the gallery setting. And so the imagery can be shocking. It can be off putting or just unusual because it's just things that we normally don't see in our everyday life. So when you have an exhibit that's as diverse as this one , you're bound to see some visual imagery that provokes and may even shock. But my hope is that it's stuff that we can learn from and that we can ask ourselves why we're reacting in the way that we are.
S1: The creator of this piece goes by the name OJ Slick.
S3: And I think this is where we personalize artwork. The artwork has nothing to do with the fine folks who work in Escondido or any particular police department or officials or authority figures. It is satirical. It's in the abstract. To think that there hasn't been abuse of power by folks who are that that are presumed to be authorities , that's that would be an error on our thinking , because we see that on the news all the time. So we're looking at someone who has presenting an alternative viewpoint of their interactions with police force.
S1: The California Center for the Arts has Condado is funded by the city of Escondido. Some city officials , including the mayor , were quite unhappy with the Three Slick Pigs piece.
S3: I think if given time in conversation , we all get a better understanding of the visual arts. And my hope is that the mayor or anyone that had a negative reaction would be willing to talk about it in depth with someone who is coming from another perspective.
S1: Well , you say the reaction to this artwork falls into a dangerous area of censorship.
S3: That's a really dangerous road to be going down this street.
S1: Legacy Exhibit of features work from 100 artists. Tell us about some of the other major works included.
S3: Oh , we have so many fascinating artworks that are part of this exhibit and by some of the biggest names in graffiti street art. To those writers that are that are working today. And some may be household names like Shepard Fairey , who came to light from the Obama Hope poster that he made during that election to some smaller artists that are low rider painters that are pushing that field forward. And in fact , we have we have car paint that lights up because it has this a current that actually runs through the automotive paint. So there's some really fascinating aspects that are pushing street culture forward in so many different ways. And I think I would say 99% of the visas that are coming in are absolutely thrilled and and are taking pictures with the various artworks because it is fun. I like to describe the artwork on display as it meets us where we are , because this is the kind of artwork that we see in our daily lives. It's it's usually not behind the doors of a museum. These are things that we see when folks are cruising on Friday nights or that the type of artwork that may be up in an alley on your walk. So it's really practical , it's useful , it's fun , and I hope folks will enjoy it.
S3: It's how to control it , how to curb it. And it wasn't until the last ten , 15 years that we see more studies on graffiti , trying to understand it , maybe celebrate it in different ways. And graffiti inherently , when it's just writing on a wall , it is illegal. It goes back to ancient civilizations that people have been writing graffiti on things , but it has transformed in the last few decades into a legal art form as well. As we see , street art and murals play a really important part in our communities , and we often see them on the sides of apartment buildings or significant architecture. So there's been a development from it being something that's merely writing on walls and destruction of property to something that's been important for economic growth and for identity of our communities.
S1: What do you think this exhibit , the controversy and its resolution does to the Center for the Arts ? Escondido is reputation among artists and art supporters.
S3: The center's reputation has only gone up in the world of art folks art appreciate and anyone who engages in the arts in a serious way. So the the reaction afterwards was celebration. And even if artists weren't or supporters weren't admirers of the piece that was under question , the right for folks to be able to talk or exhibit about such things was important. So I'm excited for the center. I'm excited for folks that patronize it , but I'm also excited about the future conversations that will happen with anyone that was upset about it. And I know that I'll be front and center for a lot of those conversations because that's a big part of what I do as a professor. It's about looking closer and getting a better understanding of visual things and how we interact with them in the world.
S1: I've been speaking with Dr. James Dechant , art historian at Point Loma Nazarene University and co-curator of the SoCal Masters Exhibition at the California Center for the Arts , Escondido and Dr. Dechant. Jim , thank you very much.
S3: Of course , it was a pleasure. Thanks for giving me a little bit of time.

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The Supreme Court vacated a ruling that supported California’s ban on gun magazines that hold more than 10 bullets. Then, despite the controversy, the artwork called “Three Slick Pigs” is remaining part of The Street Legacy: SoCal Style Masters exhibition at the California Center for the Arts Escondido.