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View Full Version : What about Silveira v. Lockyer?


E Pluribus Unum
07-17-2008, 1:52 AM
I was doing some thinking today. Until Heller, the 9th circuit court's decision was that we only have a "collective right" and that the private citizen does not have the right to own a gun.

Now Heller has changed that, and probably within the next year we will have incorporation and therefor requiring California to recognize such a right.

This brings up an interesting thought. Since the 2002 decision of the ninth circuit, local trial courts have been FORCED to hold that a private citizen has no constitutional right to own a firearm. Hundreds of cases have been decided since the 2002 decision where judges despite their better judgment have been forced to rule against 2nd amendment rulings because of this decision.

What happens to all of those cases? After 30 days one loses the ability to appeal a decision. Anyone convicted of possession of any type of firearm could have had a 2nd amendment cause for appeal but due to the ninth circuit ruling, had no way to argue that stance. Do they now have cause to appeal years afterwards?

Silveira v. Lockyer argued that the Roberti-Roos assualt weapon ban and portions of SB-23 violated our 2nd amendment right to own a weapon. The decision said the following:


California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs’ claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision.


So basically... the reasoning that was used by the court to affirm the decision is in conflict with Heller. So what happens with this case and the hundreds of others that were bound by this decision? After we get incorporation, are they free to file an identical lawsuit or what?

aileron
07-17-2008, 8:08 AM
Sadly I think they will come up with another bogus argument. But that doesn't help with your question.

CavTrooper
07-17-2008, 8:47 AM
Striking down unconstitutional laws in CA is a long, hard road I'm sure, and may not make the best buisness sense for some orginizations and individuals who thrive on these sorts of cases. Since most Californians choose to elect anti-freedom, nanny-state type officals to office they only make it harder on themselves when they actually want to excercise some sort of individuality. I belive a "full court press" for rights and freedoms in this state is highly unlikely in the near future since that would require a whole attitude shift of a majority of state citizens from the current "state knows best" to "personal reponsibility"!

motorhead
07-17-2008, 9:24 AM
what cav trooper says X 100.

E Pluribus Unum
07-17-2008, 11:19 AM
None of this answers my question.

When a supreme court ruling overturns one case... what happens with the other cases that are not attached? Can they appeal? Are they automatically repealed?? How does it work?

hoffmang
07-17-2008, 5:47 PM
The next case that raises incorporation or individual rights simply points out that the core holding of Silviera and Hickman were directly overturned by Heller.

The real case that we have to beat is Fresno Pistol and Rifle v Van De Kamp.

The old rulings remain final but have no further reliance or future use beyond quoting some important dicta from Silviera.

-Gene

E Pluribus Unum
07-17-2008, 6:03 PM
The old rulings remain final but have no further reliance or future use beyond quoting some important dicta from Silviera

So then... if a couple years ago, I was arrested, charged, and convicted of possession of an assault weapon in violation of the Roberti-Roos act and I fought it by saying that the law was unconstitutional because it violates the second amendment and at trial the judge had to use Silveira to influence his decision and rule that I had no 2nd amendment rights to a gun "so says Silveira" then I am stuck with that conviction?

If I am convicted of violating a law today... and in four years, if that law is found to be unconstitutional, I am still on the hook for it?

That just does not seem right.

Crom
07-12-2010, 8:46 PM
Now that is 2010 and were in a post McDonald world and the 2A right is incorporated is: Is Silveira v. Lockyer overturned law now? Silveira v. Lockyer is dead now right?

hoffmang
07-12-2010, 9:00 PM
Now that is 2010 and were in a post McDonald world and the 2A right is incorporated is: Is Silveira v. Lockyer overturned law now? Silveira v. Lockyer is dead now right?

Necrothread alert.

Silveira is dead with one exception. Retired police officers continue to not be a different class from an equal protections point of view. That's the only analysis that survives from that Gorski abomination.

-Gene

Crom
07-12-2010, 9:21 PM
Thanks Gene. That is helpful. Sorry to raise the dead. :)

gunsmith
07-12-2010, 9:59 PM
I h8 necro threads, but really liked Koscinski's dissent in the Silveira snafu

E Pluribus Unum
07-13-2010, 2:26 AM
Necrothread alert.

Silveira is dead with one exception. Retired police officers continue to not be a different class from an equal protections point of view. That's the only analysis that survives from that Gorski abomination.

-Gene

I hate necrothreads too in most cases.. but in this case it is completely relevant. What would you have him do? Start a new thread asking the same question? :)

Now that he has raised the dead, this zombie has a question... If I had been convicted of a crime several years ago, would I now have standing to file an appeal after the fact? Would it be grounds for some type of pardon? In the court cases since that have been decided, and a matter of settled law in California that relied on Silviera, do those losing parties have grounds to re-open for review?

Mulay El Raisuli
07-13-2010, 7:36 AM
I hate necrothreads too in most cases.. but in this case it is completely relevant. What would you have him do? Start a new thread asking the same question? :)

Now that he has raised the dead, this zombie has a question... If I had been convicted of a crime several years ago, would I now have standing to file an appeal after the fact? Would it be grounds for some type of pardon? In the court cases since that have been decided, and a matter of settled law in California that relied on Silviera, do those losing parties have grounds to re-open for review?


First, INAL, but if a person is still under some sort of restriction (10-year ban on firearm ownership, general felony conviction prohibitions, etc) then that person is still "in custody" as far as the law is concerned & so that person would still have "standing." So, that person could file a habeus petition.

Also, there are my (somewhat old) memories of what happened when the Miranda Ruling came down. Everyone who had been convicted via a forced confession had their convictions tossed. I presume (but don't know for sure) if that was automatic, or if they had to file an appeal that was then granted pro forma.

If the OP knows anyone in this situation, I'd recommend that person file a habeus petition. They have nothing to lose & everything to win. The groundwork is already being laid.


The Raisuli

hoffmang
07-13-2010, 11:14 PM
I hate necrothreads too in most cases.. but in this case it is completely relevant. What would you have him do? Start a new thread asking the same question? :)

Mine was not a complaint but just a warning to newer members as to why some of the earlier posts in this thread don't make exact sense based on what we all know now.

-Gene