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View Full Version : Contemplating a lawsuit - draft pleading for discussion...


1JimMarch
08-15-2008, 6:24 AM
...esp. stuff like "is this approach a good idea??

It's NOT filed yet. I think I've got 'em dead to rights, at least where the Ward and Saenz case law stands.

Comments welcome.

I managed to save it as .DOC and then ZIP that into something this forum can read.

Somebody needs to ask if they want serious document exchange possible on this site.

tgriffin
08-15-2008, 7:39 AM
I might be completely wrong, but I think the concensus here will be that this case needs to wait pending incorporation of Heller in a less hostile venue.

RomanDad
08-15-2008, 8:01 AM
I might be completely wrong, but I think the concensus here will be that this case needs to wait pending incorporation of Heller in a less hostile venue.

Why?

Incorporation is going to happen or it isn't, regardless of the timing, venue and types of cases brought.

Having said that- Incorporation is going to happen.

And a case like this will take long enough to work its way through the system that it will have been decided by time its done (or it could establish it.) The "one step at a time" approach is a little overly cautious. And ultimately, the consensus on Calguns doesn't have the last word on who files a lawsuit. There are thousands of plaintiffs and attorneys all over the state who have never heard of Calguns, and aren't going to be dissuaded by "We didn't say you could do that!"

ptoguy2002
08-15-2008, 8:09 AM
UM, clif notes?
Not downloading a zip file, sorry.

OCResident
08-15-2008, 8:37 AM
If you're serious about it and really think you have a case, time to hire an attorney. I can tell you from personal experience as a pro per plaintiff - and not even in federal court where they are even more formal - opposing counsel will bury you in motions just because you are pro per and just because they can. You'll have to fight each and every discovery request, etc.

...And that's when your pleadings actually look like real pleadings - which these don't. Sorry to be blunt, but better me than a federal judge that you had to pay money to get in front of.

RomanDad
08-15-2008, 8:38 AM
UM, clif notes?
Not downloading a zip file, sorry.

Cliffnotes: 2nd amendment provides a right to have a gun for self defense. California law does not allow somebody to have a gun for self defense in public. California law is Unconstitutional.

Its in an odd sort of complaint form, and it needs some work smoothing out the language and some rough edges. But the basic underlying argument is sound... I know because I wrote the same argument over a month ago.

PolishMike
08-15-2008, 8:42 AM
Get a team of lawyers and a couple hundred grand and you might have a case.

IGOTDIRT4U
08-15-2008, 8:45 AM
My only two cents is that if you are going to file this case eventually, make sure you only pursue it to the point it remains good law; don't make bad law for the rest of us. Example: The Elizondo case was a defendant's appeal, which was lost, and over the years cost the insurance industry billions of dollars. (Thank God there is a repeal of LC 139.5 as of 1/1/2009)Why was the appeal lost? Bad intentions. They appealed for the sake of appealing. The entire industry foretold them that it was a bad idea.

tgriffin
08-15-2008, 8:48 AM
Why?

Incorporation is going to happen or it isn't, regardless of the timing, venue and types of cases brought.

Having said that- Incorporation is going to happen.

And a case like this will take long enough to work its way through the system that it will have been decided by time its done (or it could establish it.) The "one step at a time" approach is a little overly cautious. And ultimately, the consensus on Calguns doesn't have the last word on who files a lawsuit. There are plaintiffs and attorneys all over the state who have never heard of Calguns, and aren't going to be dissuaded by "We didn't say you could do that!"

First, I highly doubt this would be the case to establish incorporation. Something far more fundamental, Chicago's case for example, is a far more likely candidate.

Second, granted most cases do take a while to work through the system, but what if it makes its way through before incorporation and we have additional negative case law that has to be overturned post-incorp? Counter-productive. Not saying it would be akin to pulling a Silviera v Lockyer, but can you, I, or anyone predict the future with certainty? No? Ok then I would say proceeding with caution is in order, even if it is "one step at a time"... with multiple arena's and multiple sets of feet, that approach keeps from stepping on other's toes.

Third, where in my post did I express that he should or should not file? He asked for discussion and opinions. I gave my opinion, which was a prediction that the majority of people here, including myself, would argue for a post-incorporation filing.

I have a lot of respect for Mr. March, and have been following/supporting his efforts for the firearms community for many years (he fought for CCW in my county many years ago). Its clear he values discretion as the better part of valor. I'm merely pointing out that may include waiting, refining, and solidifying his case while waiting for incorporation of Heller, as his case makes frequent mention of/relies heavily upon its precedent.

sorensen440
08-15-2008, 8:53 AM
do you have the time and money for this type of case?
I hope you dont think that you have slam dunk that would only be in court for a few days

RomanDad
08-15-2008, 9:06 AM
First, I highly doubt this would be the case to establish incorporation. Something far more fundamental, Chicago's case for example, is a far more likely candidate.

Chicago's case wont in and of itself establish incorporation for California... Unless it goes all the way to the Supreme Court, and thats just extremely unlikely. At some point, were going to have to do the work in California, and the good news is, we already have a case pending that COULD (should) establish incorporation LONG before this case even gets to trial. In the meantime, theres no harm in putting a case in the pipeline. Hell, after reading it, this complaint will take 6 months of editing before its ready to be filed.


Second, granted most cases do take a while to work through the system, but what if it makes its way through before incorporation and we have additional negative case law that has to be overturned post-incorp? Counter-productive. Not saying it would be akin to pulling a Silviera v Lockyer, but can you, I, or anyone predict the future with certainty? No? Ok then I would say proceeding with caution is in order, even if it is "one step at a time"... with multiple arena's and multiple sets of feet, that approach keeps from stepping on other's toes.
I actually think this is a very interesting case. Its a diversity of jurisdiction case (Jims a resident of Arizona) which is something thats unlikely to happen in other guns cases. If things look like they're heading south, the case gets withdrawn. In the meantime, you've done your time in the que.


Third, where in my post did I express that he should or should not file? He asked for discussion and opinions. I gave my opinion, which was a prediction that the majority of people here, including myself, would argue for a post-incorporation filing.



Relax! We're DISCUSSING. In the end though, its not our call.

CCWFacts
08-15-2008, 9:53 AM
UM, clif notes?
Not downloading a zip file, sorry.

"I'm not a California resident. Under California law, there is no way for me to carry a loaded gun anywhere except in certain rural unincorporated areas. My rights are being harmed."

Timberwolf
08-15-2008, 10:06 AM
Don't want to throw water on your fire but the pleading is flawwed on so many levels it'd be lucky to survuve the first round of dimsissal and strike motions even in the liberal Federal arena.

That said retain California counsel, give them your ideas and let them run with it if they choose or tell you why they can't.

Gray Peterson
08-15-2008, 10:06 AM
CCWFacts is essentially correct. This pleading relies on three cases: Ward v. State of Maryland, Slaughterhouse cases, and Saenz v. Roe. There is no incorporation issues to worry about here at all, as it's a cleaner case. What's even better is the fact that incorporation is not even an issue here, because it's a lawsuit about the treatment of non-residents of the state of California, in that they don't have access to the CCW system in California, and therefor can't carry a loaded firearm at all within 1000 feet of schools and in incorporated areas.

It also might be a way of taking out PC12031 and PC626.9's 1000 foot zones without having to deal with incorporation issues.

Gray Peterson
08-15-2008, 10:18 AM
Don't want to throw water on your fire but the pleading is flawwed on so many level it'd be lucky to survuve the first round of dimsissal and strike motions.

Let's turn that judgmental pendulum around, and put the onus on you: Point out the flaws. There is a reason for this being marked as a "DRAFT" pleading and put out here is to see if someone can see the flaws and helped. I've actually pointed out a few errors that I'm told will be fixed.

Be part of the solution and help fix the pleading.

I might also add that if it wasn't for Jim March, there would not have been a light shined on discrimination issues as early as it did (all the way back to 1999), and given us a historical context for much of California's CCW law. He filed against PC12050 in federal court for racial discrimination years ago against Contra Costa County and Richmond PD, but the court for the most part said that because Jim isn't a racial minority that was targeted by the Legislature (hint: Asians and Latinos), he didn't have standing or the ability to raise the scrutiny up to strict. Every single potential person he had completely flaked, feared that the sheriff or police chief would harass them and therefor fold, had moved to a "more shall-issue" county, or just flat out moved on to a border state so that they weren't subject to discrimination anymore rather than stand and fight in California.

Jim put a tremendous amount of ground work into the CCW issue here in California than most of us all together combined. He certainly is more approachable on the issue than most, and he did force Richmond PD to draft up a CCW policy and actually hand out applications, which they wouldn't do before. I believe that he deserves a little more consideration and respect, and a recognition of the fact that he isn't your typical Pro Se plaintiff.

Given the facts of now, there is more of a possibility of finding that one magic plaintiff that is needed to take down "good cause", but that's not what March is going for. This is a much cleaner case with no racial discrimination issues, from what I'm reading.

RomanDad
08-15-2008, 10:24 AM
Don't want to throw water on your fire but the pleading is flawwed on so many level it'd be lucky to survuve the first round of dimsissal and strike motions.

Let's turn that judgmental pendulum around, and put the onus on you: Point out the flaws. There is a reason for this being marked as a "DRAFT" pleading and put out here is to see if someone can see the flaws and helped. I've actually pointed out a few errors that I'm told will be fixed.

Be part of the solution and help fix the pleading.

I might also add that if it wasn't for Jim March, there would not have been a light shined on discrimination issues as early as it did (all the way back to 1999), and given us a historical context for much of California's CCW law. He filed against PC12050 in federal court for racial discrimination years ago, but the court for the most part said that because Jim isn't a racial minority that was targeted by the Legislature (hint: Asians and Latinos), he didn't have standing or the ability to raise the scrutiny up to strict. Every single potential person he had completely flaked, feared that the sheriff or police chief would harass them and therefor fold, had moved to a "more shall-issue" county, or just flat out moved on to a border state so that they weren't subject to discrimination anymore rather than stand and fight in California.

Given the facts of now, there is more of a possibility of finding that one magic plaintiff that is needed to take down "good cause", but that's not what March is going for. This is a much cleaner case with no racial discrimination issues, from what I'm reading.
Exactly.... Jims not an attorney nor is he expected to play one on TV... But there are plenty of us around who can help the formatting issues. Thats EASY. And anyways, its not so much a Complaint as a messed up motion for summary judgment.

Its CLEARLY a ROUGH draft as there are parts were Jim is leaving notations for himself ('I have to remember to talk about this here,' etc).

The issue is the underlying arguments... And I like a lot of them!

1JimMarch
08-15-2008, 12:01 PM
FOR THOSE NOT DOWNLOADING THE ZIP:

The basics are simple. There are a pair of cases from 1870 (Ward v. Maryland) and 1999 (Saenz v. Roe) that say the same thing: when a state discriminates against residents of another state over an issue of basic civil rights that are recognized at the Federal level, the 14th Amendment "Privileges and Immunities" clause kicks in and the person discriminated against can sue.

The deal here is that California does issue CCW permits to it's own state residents (on a varying fairness basis as you all know, but we can discard that for the moment) but absolutely issues NO permits to people like me: a resident of Tucson AZ.

California also doesn't recognize my AZ CCW permit (which is in my wallet as I speak, needed because I'm at a coffee shop armed as I type this with a 357 <grin>).

So, just as in the Ward case, my civil rights are being violated by a state just for being an out-of-stater.

Heller announced that the Federal government recognizes a civil right to self defense. I think the dicta is powerful in support of a right to carry, and the Heller "holdings" section (the official ruling in the case) was carefully crafted so as not to exclude carry. In fact, in at least two places in the holdings, extra wording was put in specifically to ensure that a right to carry wasn't stomped on. Had the court been inclined to limit carry rights, they could have drafted a simpler set of "holdings statement".

Then they added powerful dicta defining the term "bear arms" in NO uncertain terms.

OK. Here's why I think this case can't hurt anybody else's actions, and why I'm considering stripping out the "full" and "selective" incorporation sections.

The Ward case was, as far as I can tell, the VERY FIRST supreme court case on the 14th Amendment. They were saying that the 14A P&I clause was causing this specific effect (banning cross-border discrimination by a state against US citizens of other states). They deliberately did not exclude any broader interpretation of the P&I clause.. Check out this quote from Ward:

Attempt will not be made to define the words "privileges and immunities" or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.

In other words, my winning a Ward-style form of incorporation will NOT screw anybody else going for more expansive incorporation later.

You know...the more I think about it, the more I think stripping it way back to be a "pure" Ward/Saenz challenge is a good idea. That prevents a judge ruling against incorporation for state citizens. In the current form, I'm dangling full incorporation (or selective via due process) in front of the judge like some sort of fishing lure...if he doesn't bite, my thinking was cool, we fall back on Ward/Saenz. But the more I think about it, the more I think he might not only "not bite", he might take a hammer to it and then piss on the pieces...and bury 'em at a crossroads at midnight...etc.

I'll definitely pull the snarky bit about Scalia's sense of humor. That was accidental, it was part of a cut'n'paste from something else I'd written earlier and I didn't catch it here.

If I'm right, that would chop it so far down it'll knock...gawd, five-plus pages, maybe more. The whole Cruikshank discussion vanishes.

Gimme...maybe an hour or so. It should be small enough that it fits in this forum's size limits without doing .zip.

Jim

Gray Peterson
08-15-2008, 12:35 PM
Jim,

It may be a moot point, as we have Nordyke will likely rule on incorporation within 6 months, but it may be good to keep this as clean as possible.

Roman, can you elaborate on motion for summary judgment versus complaint file in this case?

Ten Rounder
08-15-2008, 12:56 PM
Cheaper to move to a friendly County in California and apply for a CCW there.

RomanDad
08-15-2008, 1:07 PM
Jim,

It may be a moot point, as we have Nordyke will likely rule on incorporation within 6 months, but it may be good to keep this as clean as possible.

Roman, can you elaborate on motion for summary judgment versus complaint file in this case?

Sure... Its not something the non-lawyer really needs to know but here goes. The complaint is the first document filed that lists the parties, the cause(s) of actions, some very limited facts as to why the causes of actions have been violated and a prayer for relief (what you want the Court to do to fix the problem).

They are generally very simple documents and you can see bits and pieces of one in various parts of Jim's document.

A motion for summary judgment occurs after the complaint is filed. Its a document that says "The facts are not in question here, the only issue is if these facts violate the causes of action we've laid out." There are no questions of fact (which JURIES get to decide- e.g. "Was Jim denied a CCW?") but only questions of LAW (which JUDGES get to decide "Does the 2nd Amendment ALLOW the state to deny Jim a CCW?").

It then lays out your argument of WHY the law has been violated (citing cases and authorities that support your claim). Thats what MOST of what Jim has in the sample but its sort of crammed in there with what attempts to be a civil complaint as well...

Its no big deal. Its a lawyer thing and easily fixed. What Jim has is a nice SKELETON. A starting place to hang flesh on.

GuyW
08-15-2008, 1:32 PM
Forwarded to a couple of CA attorneys.

This (the stripped-down version ) has legs...

AJAX22
08-15-2008, 1:38 PM
The core is not a bad concept, but it needs to be massively re-written.

I'd strip it down to cliff notes and pay an attorney to work on it if it were me.

then I would have that draft passed around to a half dozen other attorney's for revision/review before trying to get some $$$ backing to pursue it all the way.

if you pay for the initial work on it, you'll be more likely to gain financial support from the established 2a community (i.e. NRA etc).

GuyW
08-15-2008, 1:56 PM
BTW - why file in Sacto for the convenience of the AG?

File it in Brawley or some God-forsaken pit...

1JimMarch
08-15-2008, 2:20 PM
OK, I've got the stripped version done. Over three pages cut: everything on 14th Amendment incorporation, Cruikshank, etc. Even the California Constitution bits, which damned near made me cry.

So what does that leave?

* Heller strongly suggests a right to carry, and even added extra verbiage in the "holdings" so as not to stomp on the right to bear arms;

* California carry law discriminates against out-of-staters;

* As an out-of-stater I have a right to complain under Federal case law (Ward/Saenz).

By far the most complex part of what's left is the right to carry part.

What this does is prevent a Federal judge trying to crush REAL incorporation (for California residents) before pros like Don Kilmer or Chuck Michel get a swing at bat. I hate it too, I feel like I'm screwing over Cali residents but realistically, you want ME fighting that battle or one of the pros? Right, I thought so :). So what we're left with is something that applies PURELY to out-of-staters, while politically "moving the ball forward" on a win yet causing only minimal harm on a loss.

If I win, remember that this interpretation of the 14th P&I doesn't exclude other interpretations. In fact the Ward court covered exactly that point:

Attempt will not be made to define the words "privileges and immunities" or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce...

The new "chopped" variant is small enough that I can attach it without zipping. NOTE: I use OpenOffice (on Ubuntu Linux). In native format, I have the line numbers, vertical edge lines, footers, etc. I can export those to PDF as well. But when I save to DOC the lines and numbers go away and to get the size under 127k I had to cut the footer (sigh)...that's what y'all are seeing, OK? Blame the forum software settings, not me :).

What else...based on some advice and digging it's now "March v. Brown".

BIG point: some of you are on my rump (grin!) regarding how much this looks like a motion. Believe it or not, I do understand what "motion pleading" is and how weird this looks. But y'all ought to take a gander at this:

http://www.cadwalader.com/assets/article/091307HoffSeidelNYLJ.pdf

New York Law Journal - Impact of ‘Twombly’ on Notice Pleading

The first chunk:

It has been accepted that under the “liberal pleading requirements” of the Federal Rules of Civil Procedure, “a complaint should not be dismissed...unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”1

Thus, for five decades, Conley v. Gibson and its progeny have permitted claims to proceed to discovery so long as there was a possibility that a plaintiff could establish any facts that could support entitlement to relief. During the 2007 Term, the Supreme Court in Bell Atlantic Corp. v. Twombly, “retired” Conley’s “no set of facts” standard, holding that, to survive a motion to dismiss, plaintiffs must plead enough facts to “nudg[e] their claims across the line from conceivable to plausible....”2 In so doing, the Supreme Court made it easier for courts to dismiss claims at the pleading stage so that the “threat of discovery expense will [not] push cost-conscious defendants to settle even anemic cases....”3

Although Twombly was an antitrust case, the Court’s reversal of Conley’s liberal pleading standard may prove far more significant than the substantive antitrust holding and could have far-reaching consequences in complex commercial litigations, such as securities litigations, requiring plaintiffs to provide more factual detail in their complaints in order to avoid dismissal.


Yeah. In other words, I not only have to survive summary judgment, I have to survive a judge's decision to toss me out if I don't pass an initial "sanity check" as to the case's viability.

If I *don't* come up with some damned good evidence that there's a civil right to bear arms AND that there's a 14th Amendment enforcement mechanism with solid case law behind it, I might not survive that initial attack by the *judge*.

So yeah, the result looks more like a motion than a pleading.

Still think it's overkill?

Glock22Fan
08-15-2008, 2:38 PM
Well, it would be nice if you win.

Maybe us in places like L.A. County could then use its findings to say "Why is it that Kern County residents can get a CCW to freely walk up and down my road, but I can't?"

FABIO GETS GOOSED!!!
08-15-2008, 3:34 PM
No specific recommendations for fixing your complaint. It's poorly drafted and you should consult a practice guide, like the Rutter Group's Federal Civil Procedure Before Trial, to figure out what you need to do. That being said, my opinion based on your initial draft is that if you file this lawsuit you will be in way over your head and will trip yourself up on any number of procedural requirements, which could prevent you from ever arguing your case on the merits. And what about the merits? You argue that you get CCW and open carry in AZ but not when you visit California. How does this put you in any worse position than CA residents? How does this amount to discrimination on an out of stater? What you're really arguing is that you should get special treatment in CA because you can CCW and open carry in your home state of AZ, and there's nothing I can find in Saenz or Ward to support that argument.

1JimMarch
08-15-2008, 3:44 PM
How does this put you in any worse position than CA residents?

California residents have access to the CCW permit system, I don't.

Now granted, the practical difference between me and a San Francisco resident is nill. But the difference between me and a Mendocino County resident? Big. They have "shall issue" access to CCW in California (good statewide I might add) while I have zero access.

That's discrimination against me - and the guy from Frisco, but I can't do anything about that other than use the case to point out the absurdities...

Now granted, it's pretty weird that this disparity exists for various California residents. It's a complete freakshow in fact. But that's not my fault. The fact is, California law is rigged so as to discriminate against me, and as the comparison with Mendocino or any of several other counties shows, the discrimination is genuine, not theoretical.

FABIO GETS GOOSED!!!
08-15-2008, 4:01 PM
California residents have access to the CCW permit system, I don't.

You're on the same page as far as CA residents as far as open carry goes. Heller says states can restrict concealed carry. CA restricts concealed carry but says residents can apply for CCW permits. It's not CA citizens have some constitutional "civil right" to do this. There are lots of things that residents get to do that non residents don't. Why is CCW any different? Is there any specific authority in any published case that would allow a resident of one state to force another state that allows residents to apply for CCWs to implement a non-resident CCW application procedure?

Glock22Fan
08-15-2008, 4:04 PM
You're on the same page as far as CA residents as far as open carry goes. Heller says states can restrict concealed carry. CA restricts concealed carry but says residents can apply for CCW permits. It's not CA citizens have some constitutional "civil right" to do this. There are lots of things that residents get to do that non residents don't. Why is CCW any different? Is there any specific authority in any published case that would allow a resident of one state to force another state that allows residents to apply for CCWs to implement a non-resident CCW application procedure?


Maybe Jim should start by applying for a Cali Driving License from out of state? If he can't get one of these less emotive items that are, I believe, also restricted to Cali residents, he'll never get a CCW.

1JimMarch
08-15-2008, 4:05 PM
States are only allowed to ban concealed carry when open carry (true LOADED open carry) is allowed.

Read Heller and read the cases Heller cites.

1JimMarch
08-15-2008, 4:07 PM
Maybe Jim should start by applying for a Cali Driving License from out of state? If he can't get one of these less emotive items that are also restricted to Cali residents, he'll never get a CCW.

Ummmm...OK, the level of dumb is starting to get painful. My right to drive in California on the same basis as California residents isn't impaired now because my AZ driver's license is accepted in California.

That in turn is why one possible cure on CCW disparity is for Cali to accept out-of-state CCW permits like mine...although if somebody from Wisconsin sued 'em they'd be back in hot water.

CCWFacts
08-15-2008, 4:16 PM
Exactly.... Jims not an attorney nor is he expected to play one on TV...

Right, and he takes a conversational tone in the whole thing. A strangely compelling conversational tone. It sure doesn't read like an ordinary legal filing. Maybe some judge will find it a refreshing and interesting change to read something not written by a lawyer.

The issue is the underlying arguments... And I like a lot of them!

I'm not a lawyer enough to understand all the nuances but it seems like he has some interesting 14A analysis there. He really has a lot of material stored away in his databases and he gets some interesting results from it.

It does seem to me that non-residents who have CCWs in their states of residents are the best group to use to challenge 12031. They have no possible way of carrying a loaded gun here. At least people in LA, SF, etc, have some possible way, even if it's always denied in practice. For residents in SF to challenge they would have to attack the CCW process as being unfair, which is hard. For a non-resident, there's no CCW process at all so the attack is cleaner. I think a non-resident with a CCW in his state of residence is the best challenger we have to CA's law.

One side effect here is that if this wins, it suddenly forces the entire US to go shall-issue. Even if this is only the 9th circuit, we suddenly get two remaining, difficult hold-out states: CA and HI (and the non-state island possessions). That is a stunning victory if we get it. I've said many times, once a state goes shall-issue, gun control is finished in that state. No state that has ever gone shall-issue has ever passed any meaningful gun control leg. after that. If we could make the same thing apply to the US as a whole, it would be a coup.

By the way, if a non-resident, with a CCW in his state of residence, gets arrested for carrying here, he could use this same logic as a defense, and I would not be surprised if the prosecutor would drop such a case, for fear of pursuing it.

If this thing wins, I guess it would end up nuking 12050 in its entirety and make this state Vermont-carry, at least for non-residents?

FABIO GETS GOOSED!!!
08-15-2008, 4:17 PM
States are only allowed to ban concealed carry when open carry (true LOADED open carry) is allowed.


It doesn't come right out and say that but it's fine to assume it does. Open carry is not allowed in CA. That may be unconstitutional. But you're not challenging the constitutionality of CA's policy. You are trying to argue that with respect to that policy you are being treated differently because you are out of state. But you can't win that argument because even though you can't open carry in CA, neither can CA residents. Your task then is to show how your inability to apply for a CCW permit is an unconstitutional restriction on your right to travel. For that you need some kind of authority and I'm not seeing it in Saenz or Ward.

RomanDad
08-15-2008, 4:19 PM
States are only allowed to ban concealed carry when open carry (true LOADED open carry) is allowed.

Read Heller and read the cases Heller cites.

I agree with this.

Right, and he takes a conversational tone in the whole thing. A strangely compelling conversational tone. It sure doesn't read like an ordinary legal filing. Maybe some judge will find it a refreshing and interesting change to read something not written by a lawyer.



Don't count on it.

FABIO GETS GOOSED!!!
08-15-2008, 4:22 PM
Right, and he takes a conversational tone in the whole thing. A strangely compelling conversational tone. It sure doesn't read like an ordinary legal filing. Maybe some judge will find it a refreshing and interesting change to read something not written by a lawyer.

That's wishful thinking I'm afraid. Most judges want to see a properly drafted complaint with the facts and causes of actions alleged in the proper manner.

CCWFacts
08-15-2008, 4:24 PM
Don't count on it.

I was just musing and giving encouragement. IANAL, but I do realize that most pro se suits are hopeless.

bwiese
08-15-2008, 4:31 PM
I was just musing and giving encouragement. IANAL, but I do realize that most pro se suits are hopeless.

Anyone remember Don Hamrick? :)

GuyW
08-15-2008, 4:59 PM
I think Jim's case is that he has a fundamental right to (open) carry loaded, anywhere in these (not so) United States (except sensitive locations).

CA illegally prevents Jim exercising his fundamental constitutional right to (open) carry loaded, in particular because there is law to prohibit him open carrying loaded and no process to apply for a license to carry loaded.

His 14th hook is not equal protection, its "privileges and immunities".

CA can't abridge his free-speech rights just because he's from AZ, for example...

It doesn't come right out and say that but it's fine to assume it does. Open carry is not allowed in CA. That may be unconstitutional. But you're not challenging the constitutionality of CA's policy. You are trying to argue that with respect to that policy you are being treated differently because you are out of state. But you can't win that argument because even though you can't open carry in CA, neither can CA residents. Your task then is to show how your inability to apply for a CCW permit is an unconstitutional restriction on your right to travel. For that you need some kind of authority and I'm not seeing it in Saenz or Ward.

1JimMarch
08-15-2008, 4:59 PM
It does seem to me that non-residents who have CCWs in their states of residents are the best group to use to challenge 12031. They have no possible way of carrying a loaded gun here. At least people in LA, SF, etc, have some possible way, even if it's always denied in practice. For residents in SF to challenge they would have to attack the CCW process as being unfair, which is hard. For a non-resident, there's no CCW process at all so the attack is cleaner. I think a non-resident with a CCW in his state of residence is the best challenger we have to CA's law.

THANK YOU, somebody gets it :).

I'm not a lawyer enough to understand all the nuances but it seems like he has some interesting 14A analysis there. He really has a lot of material stored away in his databases and he gets some interesting results from it.

OK, part of where this comes from is studying Akhil Reed Amar's law review articles. Amar is a major proponent of full incorporation via the P&I clause, which has been an ongoing debate for a REAL long time. Full incorporation makes the states obey the whole BoR including the 2A.

Now the kicker is that Amar hates guns, and hates his own findings where they deal with the 2A. But he's honest enough to report accurately what the authors of the 14A said about what they were doing, which was in part arming blacks in the south against the proto-KKK.

Anyways. Part of what Amar said was that in Ward, they came up with this meaning for the P&I clause in what I believe to be good faith. And then in Slaughter-house, they decided to completely trash the 14th Amendment as a functional document, at least where state violations of their own citizen's rights were concerned. So they went back to Ward and said "hey, we're not TOTALLY ignoring the P&I clause, it covers cross-state situations". If it hadn't been for Ward, Slaughter-house won't have worked because they'd have written the P&I clause completely out of the constitution and that...well, would have looked ugly at a minimum.

So. If the P&I (privileges and immunities clause of the 14A) means "no cross-border discrimination in basic civil rights", yeah, well then let's go there...

:)

Originally Posted by 1JimMarch View Post
States are only allowed to ban concealed carry when open carry (true LOADED open carry) is allowed.

It doesn't come right out and say that but it's fine to assume it does. Open carry is not allowed in CA. That may be unconstitutional.

Oh come on. Look at Heller footnote 9, where it cites EIGHT prior cases (mostly state supreme court decisions) that all say the same thing: states can ban concealed carry only because open carry is still kosher.

One or two quotes, arright, maybe somebody could pass it off as a mis-understanding.

EIGHT?

Ah don't THINK so.

But you're not challenging the constitutionality of CA's policy.

Sure I am. As it applies to ME anyhow...

You are trying to argue that with respect to that policy you are being treated differently because you are out of state.

Yup...and where CCW access is concerned, it's right there in the penal codes....

But you can't win that argument because even though you can't open carry in CA, neither can CA residents.

(shakes head)

OK, here's what you're missing.

Let's take Texas as an example, and let's say the incorporation issue gets settled such that states aren't allowed to violate the 2A.

OK. Can you sue Texas for failing to allow open carry? They don't, you know. They DO have a respectable CCW system.

It appears to me that no, you can't go after Texas on the lack of open carry. Because Texas IS respecting carry rights by way of CCW. Now you could maybe argue that the fees are too high, and you might get somewhere. You might not though; Texas would argue that the training and background check needs override the "cost of a right" issues. I'd call it a crapshoot, it could go either way.

My point is that Texas has decided to honor carry rights via CCW, as state policy.

Cali has done the same thing, although the result is downright diseased compared to Texas. Still, the fact is the vast majority of personal defense with loaded firearms on the street going on in Cali happens via CCW right NOW, per the state legislature's policy decisions.

And that means a judge is required to honor those policy decisions as much as he/she can, so long as thing are (or are forced to be) constitutional.

Is this making sense yet?

Your task then is to show how your inability to apply for a CCW permit is an unconstitutional restriction on your right to travel. For that you need some kind of authority and I'm not seeing it in Saenz or Ward.

SIGH, no, the right to travel is fully established under Saenz. This is about my RKBA via Heller while in Cali.

That's wishful thinking I'm afraid. Most judges want to see a properly drafted complaint with the facts and causes of actions alleged in the proper manner.

I do understand that, but on the other hand...the website for this court district contains info and procedures for pro se cases and while they say that people should try and get it right, they are very clear that if it's anywhere close, it's going to get attention.

~

OK, let's back up here. To me, the whole thing hinges on the "right to carry/bear" support in Heller. Who here thinks it's NOT there? To me, it's just as plain as day it's there. A judge would have to create an elaborate construction from scratch to say otherwise, AND directly counter Scalia's cite to Ginsburg's definition. I just can't see it happening.

1JimMarch
08-15-2008, 5:02 PM
Anyone remember Don Hamrick?

Oh yeah. I sure do.

Seriously...does anybody here think I'm as dumb as Don? Really? That whole "merchant marine" argument? It was freakin' bizarre. I mean, the dude was DUI on the "Information Superhighway". Sheesh.

bwiese
08-15-2008, 5:03 PM
Oh yeah. I sure do.

Seriously...does anybody here think I'm as dumb as Don? Really? That whole "merchant marine" argument? It was freakin' bizarre. I mean, the dude was DUI on the "Information Superhighway". Sheesh.

No, Jim, rather to say that 99% of pro se cases meet with failure.

1JimMarch
08-15-2008, 5:17 PM
Yeah, but...then again...

http://www.amazon.com/Gideons-Trumpet-Anthony-Lewis/dp/0679723129

Barely literate guy in jail wrote up an appeal to the US Supreme Court - in pencil. Changed the history of the US court system forever - he's why "if you can't afford one, an attorney will be appointed for you".

It does happen...

1JimMarch
08-15-2008, 5:19 PM
Tell ya what. I'll polish this thing some more over the weekend and talk to some attorneys Monday. I do think it'll be a cheap, zero-discovery case.

Yes, I'm aware of the "bury 'em in paperwork" gag. They pull that a lot on solo practitioner lawyers. As a pro se I have two advantages: I can do my own paperwork plus if they try and beat up on me TOO badly they risk looking ugly to the judge.

RomanDad
08-15-2008, 5:25 PM
Theres no reason Jim needs to do this on his own.... Id LOVE to see a lot of these separate groups come together again (like we once were way back when) and hit em all at once....

With all due respect to Jim- I DONT THINK he should represent the case.... The arguments are great but I think they need to be handed over to somebody who really knows his way around a courtroom and Jim should be a plaintiff (along with about three or four dozen OTHER plaintiffs of various stripes). We have TONS of attorneys who would do a lot better job than a layperson, just because they know the procedures.

And as a plaintiff, I don't think Jim has a case until he APPLIES and is DENIED a permit based on residency. Thats going to be one of the procedural steps (ala Parker et al were dismissed from Heller) that has to be jumped through before the Court will hear the case. Either that, or hes going to have to get arrested. There has to be a "Case In Controversy" to give you standing and until you cross that threshold, you dont withstand a demurrer.

Gray Peterson
08-15-2008, 6:55 PM
btw, a few pointers.

1) The name of Jerry Brown is Edmund G. Brown

2) 9th Circuit as far as I know, has different standing requirements than the DC Circuit. There was a case back in the mid 90's which defined standing quite strictly. 9th Circuit does not have as strict standing, especially when it comes to lack of ability to apply for a license at all that's precluded, however the safest route is to apply, which means that a sheriff has to be selected to A) Apply to and B) Sue when they refuse, and put both Brown and the Sheriff in the position as defendants. In either case, any application should be centered on one Sheriff. Since Sheriff McGinness decided to break his word and screw CCW holders there even more, perhaps Sacramento County? On Second thought, go after one of the poorer counties, though honestly, the AG's are going to get involved so maybe it doesn't matter.

Shotgun Man
08-15-2008, 7:11 PM
BTW - why file in Sacto for the convenience of the AG?

File it in Brawley or some God-forsaken pit...

That's funny as hell, but it is I guess the way lawyers must think.

CCWFacts
08-15-2008, 7:33 PM
THANK YOU, somebody gets it :).

To put it another way:

For California residents, we have (a very f-d up) access to the right to bear. For non-residents in CA, they have no access to bearing arms, period. It's easier to challenge a "no" than a "maybe", so I think this is a good avenue to pursue.

The idea that California residents have more access to free speech, or the right to bear arms, or whatever, than non-resident visitors, is outrageous. It's like saying to Jim, "you can't pray while you're in California, but California residents can pray here."

CCWFacts
08-15-2008, 7:40 PM
And as a plaintiff, I don't think Jim has a case until he APPLIES and is DENIED a permit based on residency.

To whom would he apply? Of course, it's easy enough for California residents to get denied, so if he needs a denial, should be quite easy to get!

Either that, or hes going to have to get arrested. There has to be a "Case In Controversy" to give you standing and until you cross that threshold, you dont withstand a demurrer.

Getting arrested wouldn't be that hard and the risk wouldn't be tremendous. With a loaded long gun, it's a single misdemeanor count that is always handled with probation. Could it be done with a "friendly" DA (Mendo county or some place that would charge it as an infraction)? Could the person pursue a civil rights damages claim after winning, so that there would be some potential reward for the risk?

Shotgun Man
08-15-2008, 7:40 PM
To put it another way:

For California residents, we have (a very f-d up) access to the right to bear. For non-residents in CA, they have no access to bearing arms, period. It's easier to challenge a "no" than a "maybe", so I think this is a good avenue to pursue.

The idea that California residents have more access to free speech, or the right to bear arms, or whatever, than non-resident visitors, is outrageous. It's like saying to Jim, "you can't pray while you're in California, but California residents can pray here."

Well put. It is a simple and elegant plan. I would think the "right people" might get behind it, but they may wish to wait.

I don't think this is something a pro per should take on.

Gray Peterson
08-15-2008, 7:43 PM
btw, one more thing to throw into the pot: School carry. This makes any carry within 1000 feet a felony.

FABIO GETS GOOSED!!!
08-15-2008, 7:59 PM
I think Jim's case is that he has a fundamental right to (open) carry loaded, anywhere in these (not so) United States (except sensitive locations).

CA illegally prevents Jim exercising his fundamental constitutional right to (open) carry loaded, in particular because there is law to prohibit him open carrying loaded and no process to apply for a license to carry loaded.

His 14th hook is not equal protection, its "privileges and immunities".

CA can't abridge his free-speech rights just because he's from AZ, for example...

This is how I understand what he's saying as well. If that's the case I don't see how he can avoid the incorporation issues. Unless there is 2nd amendment incorporation how can he argue, as against the state of CA, that he has a fundamental constitutional right to open carry loaded (or some fundamental right to self defense for which he needs either open loaded carry or authorized concealed carry)? Wouldn't he need to prevail on the incorporation issue absent some other controlling authority (arising out of someone else's 2nd amendment case)? I'm agreeing Heller indicates that open loaded carry is constitutionally protected. But there is no case law on this yet and I don't think JM is the guy I want making the post-Heller arguments for open loaded carry or in the alternative shall issue (or status quo, discretionary issue?) CCW for non-residents in CA. (I'm not keen on using the open carry arguments as a means to a shall issue CCW end, but that's neither here nor there). The "I'm going to throw a bunch of stuff out there and they're supposed to take me seriously even if my pleadings are sloppy" approach is not the optimal one in my opinion.

bwiese
08-15-2008, 8:08 PM
Fabio, agreed.

Incorporation first. And while keep is somewhat solved, 'bear' needs work.

RomanDad
08-15-2008, 8:22 PM
To whom would he apply? Of course, it's easy enough for California residents to get denied, so if he needs a denial, should be quite easy to get!



Getting arrested wouldn't be that hard and the risk wouldn't be tremendous. With a loaded long gun, it's a single misdemeanor count that is always handled with probation. Could it be done with a "friendly" DA (Mendo county or some place that would charge it as an infraction)? Could the person pursue a civil rights damages claim after winning, so that there would be some potential reward for the risk?

Unfortunately, he would have to get arrested for a CONCEALABLE GUN to effectively go after 12025/12031/12050 and since he cant REGISTER the guns here he gets a FELONY- Not worth the risk...

He can APPLY for a CCW in any of the counties who regularly accept applications. Orange County might work great... Maybe San Berdu? Anywhere that he can turn it in KNOWING he will simply get a DENIAL LETTER rather than just getting the application thrown away (which happens in a lot of the counties from what Ive heard).

hoffmang
08-15-2008, 8:29 PM
California residents have access to the CCW permit system, I don't.

Pardon a moment of devils advocate, but California residents also have access to the California Drivers License and you don't.

The heart of the matter is that open carry loaded is only constitutionally protected post incorporation. It will be just as easy for one of us residents to bring that case after incorporation this fall/winter as it would be for an out of state resident.

I'm not yet seeing why a P&I case is any better than simply getting incorporation through the usual Due Process route. Can you explain it without resorting to equal protections law (because we want to avoid those arguments until the review standards are higher post incorporation.)

-Gene

ke6guj
08-15-2008, 8:32 PM
Unfortunately, he would have to get arrested for a CONCEALABLE GUN to effectively go after 12025/12031/12050 and since he cant REGISTER the guns here he gets a FELONY- Not worth the risk....

Well, Jim was a CA resident, so he may still have some handguns that were DROSed in CA and should still be registered to him.

CCWFacts
08-15-2008, 8:34 PM
Well, Jim was a CA resident, so he may still have some handguns that were DROSed in CA and should still be registered to him.

Right, he says that in his draft. He has CA registered handguns. Unless the reg somehow becomes void for a non-resident (does it? I have no idea) then his are still registered to him and he's still in misdemeanor-zone.

RomanDad
08-15-2008, 8:41 PM
Right, he says that in his draft. He has CA registered handguns. Unless the reg somehow becomes void for a non-resident (does it? I have no idea) then his are still registered to him and he's still in misdemeanor-zone.

Im not going to recommend he does that.... Its just a LOT easier (and safer) if he were to just apply and get denied.


As far as in state/ out of state, I see no reason why the case that comes, when it comes, doesn't have EVERY TYPE OF PLAINTIFF WE CAN FIND... In State, Out of State, Denied, Revoked, Non-Renewals (and yes we will have representatives from all of these categories.) You never know what a Court is going to require as far as Standing, and the more bases you cover on the issue, the better.

I also see no reason not to argue incorporation on every possible theory. There is no DOWNSIDE to it.

hoffmang
08-15-2008, 8:41 PM
Right, he says that in his draft. He has CA registered handguns. Unless the reg somehow becomes void for a non-resident (does it? I have no idea) then his are still registered to him and he's still in misdemeanor-zone.

Jim could qualify for the misdemeanor charge of CCW w/o a permit with his handguns that are still registered in California. Note that that path requires getting caught concealed carrying - which is kind of hard actually. I guess you could walk up to a cop and tell him...

-Gene

CCWFacts
08-15-2008, 8:50 PM
Jim could qualify for the misdemeanor charge of CCW w/o a permit with his handguns that are still registered in California. Note that that path requires getting caught concealed carrying - which is kind of hard actually. I guess you could walk up to a cop and tell him...

No no... if he carries concealed w/o a permit that's two misdemeanors. This would be loaded open carry sans permit.

I wouldn't advise him (or anyone) to break the law. As RD says, better just to apply for a permit and get the denial.

artherd
08-15-2008, 9:07 PM
Please don't.

Bad Horse
08-15-2008, 9:34 PM
IANAL, I won't comment on the form or how it's written, I have no idea how a judge would look at it.

The logic is beautiful. It holds together completely.

I think you have to get standing. Apply in a county too populous for legal loaded open carry and get denied. Maybe the county geographically nearest you (Riverside maybe? San Bernadino seems to want a year to process an application?).

This is just the thinking of a non-lawyer, but I'd try to get even a mediocre CA lawyer to work with you on this. Maybe one looking to make a name for himself, maybe one not that long out of law school, willing to do it for a deeply discounted rate.

hoffmang
08-15-2008, 9:40 PM
This is just the thinking of a non-lawyer, but I'd try to get even a mediocre CA lawyer to work with you on this. Maybe one looking to make a name for himself, maybe one not that long out of law school, willing to do it for a deeply discounted rate.

Uhm... We're talking about everyone's rights here - even people outside of California. Why would we want to go cheap or unskilled exactly?

Me, I'd prefer we take good legal ideas (which Jim may or may not have here) and use the coalition of pro gun lawyers with experience and track records of success.

Would you rather see Gura or Michel on this case or Gorski?

-Gene

1JimMarch
08-15-2008, 10:03 PM
Pardon a moment of devils advocate, but California residents also have access to the California Drivers License and you don't.

Gene, I respect you. But I have to ask that you think before you post.

Do you think I'd be arrested in California for driving on an AZ driver's license as a visitor? Seriously? So how am I discriminated against in driving as a visiting AZ resident? I don't NEED a California driver's license to drive in Cali. I can flash my AZ license at a cop. You did know that, right?

I *do* need a California CCW to pack in Cali.

See the difference?

Now, since you're obviously dead wrong on the first sentence you posted here, please open your mind to the possibility that this wasn't your first foul-up.

Let me step you through the rest.

Dang right I don't need to resort to conventional equal protection. It turns out I'm already a member of a protected class: that of a cross-state visitor protected by the Feds from discrimination on that basis by states I visit, when the discrimination impacts a Federally recognized basic right - and arms are already listed.

OK. Let's take it from the top.

It turns out Ward was the SECOND case regarding the 14th Amendment to get decided by the Supremes.

The first was Paul v. Virginia, 1869.

http://supreme.justia.com/us/75/168/

Paul was about a corporation complaining about cross-border discrimination in business matters. They lost, as the Supremes declined to acknowledge individual civil rights for corporations (like they did later!). The Paul court did however define what civil rights were protected under the 14th Amendment against cross-border discrimination:

3. The privileges and immunities secured to citizens of each State in the several States by this clause are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured by it in other States.

http://supreme.justia.com/us/75/168/

Next up was Ward (1870). It was about cross-border financial discrimination by a state against residents of other states, and it was specific to businessmen, not corporations. So Mr. Ward won, bigtime: Maryland could not tax him at a higher rate than Maryland citizens.

Look, Mr. Ward was from New Jersey (Union). Maryland was former Confederate. Spot it yet? Cross-border discrimination was a LOT more common because we'd just frackin' shot up half a million of each other. How much you wanna bet Maryland wouldn't have bothered to tax a trader from Georgia? That cr@p needed to end, and the Supremes ended it VIA the 14th Amendment P&I clause.

The kicker is: all that case law is still valid.

Three years after Ward we get Slaughter-house, which tried to ALLOW states to screw over their own residents. God only knows why; I would guess racism was at least in the background; either the 1873 court realized the 14th Amendment was going to be used to preserve black civil rights (as John Bingham had loudly promised as he wrote it!) or heck, maybe a bunch of the screwed-over New Orleans butchers were black. Not impossible, it was a disgusting job.

Anyways. Slaughter-house tried to cripple the 14th WHILE STILL PREVENTING CROSS-BORDER DISCRIMINATION where the issue was "privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens".

Understand, in 1856 the Supremes had exhaustively defined "Privileges and Immunities" in Dred Scott (while mentioning these were something blacks didn't have):

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. [emphasis added]

Wow, that's an interesting P&I, isn't it?

So what did Ward rule?

Comprehensive as the power of the states is to lay and collect taxes and excises, it is nevertheless clear, in the judgment of the Court, that the power cannot be exercised to any extent in a manner forbidden by the Constitution; and inasmuch as the Constitution provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, it follows that the defendant might lawfully sell, or offer or expose for sale, within the district described in the indictment, any goods which the permanent residents of the state might sell, or offer or expose for sale in that district, without being subjected to any higher tax or excise than that exacted by law of such permanent residents.

A state cannot discriminate against residents of other states on any basic civil right recognized at the Federal level as a "privilege or immunity of United States citizenship". Heller clarified for us that both keeping and bearing arms is included in that list of P&Is.

Let's look at a key quote from the Slaughter-house case describing Ward, which (between Ward and Saenz) is closer to my situation. To clarify: Ward was 1870 and the FIRST time the 14th Amendment was ever enforced by the Supremes. Slaughter-house was three years later. Slaughter-house said that the 14th Amendment didn't apply to a violation of rights by a US state against it's own citizens, but went out of it's way NOT to overturn Ward by stating that Ward still applies when a citizen of one state has "fundamental rights" violated by another state in a fashion designed to harm out-of-state residents. So with my [comments] included, here's Slaughter-house:

The whole purport of the decision [actually referring to Paul which agrees with Ward] was, that citizens of one State do not carry with them into other States any special privileges or immunities, conferred by the laws of their own States, of a corporate or other character. That decision has no pertinency to the questions involved in this case. The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them into other States and are secured by the clause in question, in their enjoyment upon terms of equality with citizens of the latter States. This equality in one particular was enforced by this court in the recent case of Ward v. The State of Maryland, reported in the 12th of Wallace. A statute of that State required the payment of a larger sum from a non-resident trader for a license to enable him to sell his merchandise in the State, than it did of a resident trader, and the court held, that the statute in thus discriminating against the non-resident trader contravened the clause securing to the citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which was an essential incident to his ownership, possessed by the non-resident, was subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of her own citizens. The privileges of the non-resident were in this particular abridged by that legislation.

IN CONCLUSION:

For YOU as a California resident to have the 14th Amendment protections applied to you against California, you have to either overturn Slaughter-house (getting "full incorporation") or you have to convince a 9th Circuit judge to "selectively incorporate" the 2nd Amendment against California.

Either would be a damned difficult fight, although Heller made it easier for you by slamming Cruikshank (1876) around like they were a drunk bear on a dead salmon. Cruikshank is dependent on Slaughter-house for it's logic.

*I* on the other hand can work WITH Slaughter-house, and the Ward case law it supports. I don't have to overturn squat. The moment I convince a judge that bearing arms is a FEDERALLY recognized civil right (which Heller outright says!), I've won. Seriously.

Along the way, I get to rub a Federal judge's nose in the amazing cesspool that is the California CCW system. Kewl.

And as a final special bonus, I don't hurt you any. Because Ward says that their view of the term "privileges and immunities" DOES NOT conflict with any more expansive view that the Ward court fully expected to happen!:

Attempt will not be made to define the words "privileges and immunities" or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation...

Am I getting through here?

This is as close to slam-dunk as a gun case could get.

hoffmang
08-15-2008, 10:25 PM
Yes but you're missing the simple and fundamental flaw in your argument.

Equal protections law is not subject to more than rational basis scrutiny unless the right or privilege being violated is already an incorporated fundamental right.

California denying you a California CCW absent the 2A being incorporated is no different than it denying you a drivers license based on your not being a resident. Repeat after me. You have no Second Amendment right in Arizona or California (yet) when not on Federal land or in the presence of a Federal law enforcement officer.

An anti judge can simply rule that "CCW" and your AZ CCW are not privilege or immunity of United States citizenship (yet.) To the extent you can "win" that you should be eligible for a California CCW license, all the relief a court is going to grant you before incorporation is the same right to be denied a permit like the rest of us Californians (aka, you'll be granted that a Sheriff will have to accept out of state applicants and use the same "may issue" logic to analyze the application.) Do you have "good cause" that but for your lack of residency, would qualify you for a California CCW today?

I suggest you read Gura's motion for Summary Judgment (http://www.chicagoguncase.com/wp-content/uploads/2008/08/chicago_summary_judgment_brief.pdf) in Chicago starting on page 4 to acclimate yourself to the fact that Gura freely admits that the privilege and immunities argument isn't going to work based on stare decisis.

Equal protections analysis doesn't yet work until a court in the 9th Circuit declares the right to bear a fundamental right either through P&I or due process in the 14th. As such, the only real 2A related claim you can make is that the State of California does not allow you to open carry loaded - just like the rest of its residents.

-Gene

1JimMarch
08-15-2008, 11:18 PM
Gene, I'll read Gura's motion now. But ponder this: the terms "strict scrutiny" and "rational basis" are products of the 20th century, and create classes of protected citizens (plus of course the intermediate gender step between them).

The protection against discrimination as a traveler pre-date ALL of that. It's an older body of case law. It starts in 1869 with Paul, gets firmed up in 1870 with Ward and then as Saenz shows in 1999, it never died.

I'm not operating under rational basis or strict scrutiny.

If Saenz hadn't of come along and proven that the "original meaning of the P&I (circa 1869/70) was still alive, I'd be a barking moonbat like Don for trying to revitalize what was long considered dead. But Saenz brought it all right back up to current and it's therefore usable NOW.

hoffmang
08-15-2008, 11:28 PM
I don't disagree with you that there are interesting corners vis-a-vis the out of state angle for most of the reasons you state. What I'm saying is that it is certainly not a slam dunk.

A modern district and appellate court in the 9th circuit are going to look at a CCW challenge as a discrimination case. You are correct that you should be able to apply for a California CCW on the same terms as CA residents. The problem is that it will be on exactly the same terms.

As far as trying to "import" the right to loaded open carry from Arizona into California - absent incorporation of the 2A - its the same as someone from Oregon challenging California sales tax on items an Oregon resident purchases while physically in California because Oregon doesn't charge sales tax on good sold to Oregon residents in Oregon. That's certainly a privilege of being a citizen of Oregon, and loaded open carry right now is only a privilege of being an AZ resident. It's not a privilege we have in California...

-Gene

hoffmang
08-15-2008, 11:32 PM
Also, as to Saenz, you'll see Gura propose it as an alternative incorporation theory on page 6 of his Motion I linked to above. The fact that incorporation through P&I is in the dissent means that the only route to this path is to get an incorporation case all the way to SCOTUS through either 14A path and have SCOTUS announce a new rule by directly overturning Slaughterhouse. It's possible, but we can do that with the more direct incorporation cases and personally I'd rather have our rights back sooner through the due process incorporation while the case is headed to SCOTUS.

-Gene

hoffmang
08-15-2008, 11:56 PM
Let me quote from Saenz:


Those protections are not "absolute," but the Clause "does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm'n of Mont., 436 U. S. 371, 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U. S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for "the 'citizen of State A who ventures into State B' to settle there and establish a home." Zobel, 457 U. S., at 74 (O'CONNOR, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident's exercise of the right to move into another State and become a resident of that State.


On CCW, you are correct that California unfairly discriminates against you by making it impossible to follow the California proscribed CCW process. That means you could sue and the court would require a sheriff to take your application. However, the sheriff would still be free to deny you because he didn't like the color of your shirt or that your "good cause" isn't good enough. You will in fact be treated EXACTLY like a California resident. You might be treated better in that you would be able to apply in counties that are virtually shall issue in ways that we California residents are not but that would then have to be a second follow up case.

-Gene

1JimMarch
08-15-2008, 11:59 PM
OK, I get where Gura is going, and that explains why Gene and I are at cross-purposes.

Gura (typo fixed, was "Gene") is pushing for selective incorporation under the Due Process clause rather than full incorporation under P&I. And that's fine - remember, that's one of the alternatives I offered the court in my first draft (before stripping it to a pure Ward/Saenz approach). And he's absolutely right: if the court isn't going to dump Slaughter-house and do full incorporation via P&I, then selective is the next best bet.

The problem with dumping Slaughter-house and doing P&I full incorporation is that it would also require states to do grand jury indictments on every major case, adding to state expenses. That part of the 5th Amendment is one of three pieces of the BoR not yet selectively incorporated under Due Process. The 2A is another, and nobody gives a dang about the 3A anymore.

From that point forward, Gura and I are in total accord. Gura slams Cruikshank around like it's a punching bag, and shows that both Presser and Miller v. Texas fall if Cruikshank falls. And all three support various modern circuit cases such as Fresno Rifle here in the 9th and the similar Quilici v. Village of Morton Grove in the 7th.

About the only trick Gura missed was not mentioning Charlie Lane's book and how it's cited with approval in Heller. Lane REALLY beats up on Cruikshank like Godzilla v. Bambi.

OK, cool. What you're missing is what Slaughter-house did.

They couldn't destroy the P&I clause completely. As the Ward court said, the phrasing is downright magnificent: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". That's gotta mean SOMETHING, right?

Well yeah. Per Slaughter-house, it means a ban on cross-state discrimination.

NOW do you get it? Everything I'm arguing is 100% compatible with Gura's motion. Gura can argue for selective incorporation of the 2nd via Due Process (while supporting Slaughter-house as valid case law) while at the same time, I rely on Slaughter-house for the one remaining piece of the P&I clause that Slaughter-house left alive: the barrier to cross-state discrimination, present because Slaughter-house cited Ward with strong approval and Ward does exactly that.

Man.

Let me note in passing that there's LOT of reasons to disrespect Slaughter-house. This article (download link here):

http://works.bepress.com/richard_aynes/2/

...is a MAJOR eye-opener.

I'm not going to go there myself but...between this and some of the stuff Akhil Reed Amar has come out with, blow Slaughter-house out of the water.

And grand juries aren't all THAT expensive...

1JimMarch
08-16-2008, 12:08 AM
Gene, if I get to pick the sheriff of issuance, the California CCW process would be damned similar to AZ. After all, if a "shall issue" sheriff such as Mendocino doesn't cut me a permit, well gee, the discrimination against an out-of-stater would be a bit obvious, right?

I agree that importing open carry is a likely non-starter.

Now, here's the kicker: there is no way a Federal judge (who's honest, and there's gotta be some?) could fail to see that Cali CCW is a snake-pit. To force me into an arbitrary and capricious process would be a bad joke. BUT: so far Cali CCW's "arbitrariness" has been decided by California courts. The FEDERAL administrative law standards on "arbitrary and capricious" are far more settled and we're operating in Federal court here, not state court.

I believe the Federal "arbitrary and capricious" standards would apply, not the Cali standards, because I'm a "Federal citizen" whose rights are protected by the Federal court. I could be wrong of course, but this seems very possible. And if that happens, if it turns out that the Cali permit system cannot possibly meet Federal administrative authority standards, then I've just moved the ball a BIG step forward, right?

The easiest way for the Federal court to allow me to avoid arbitrary and capricious processes would be to let me pick my county. I'd go along with that eagerly.

BUT: the single easiest structural cure for what's going on here would be to force Cali to honor out-of-state permits the same way they honor out-of-state driver's licenses. That would be WAY cool.

Bad Horse
08-16-2008, 12:14 AM
Uhm... We're talking about everyone's rights here - even people outside of California. Why would we want to go cheap or unskilled exactly?

Me, I'd prefer we take good legal ideas (which Jim may or may not have here) and use the coalition of pro gun lawyers with experience and track records of success.

Would you rather see Gura or Michel on this case or Gorski?

-Gene

If Jim can afford them, or they're willing to work for what he can afford, he should use them. I agree with Romandad, there are tons of lawyers who would do a better job than even a really impressive, smart and well informed layperson, just because they know the proceedures. I'll contribute to a fund, but I think it would run into the hundreds of thousands.

If he can't use them, I think cheap and unskilled help is better than nothing at all, even if it's just to put on a nice suit and make bland comments on the courthouse steps.

I don't think going pro se buys you much in court. If there's publicity around the case (and there would be around this case) being pro se makes you look like nut with a tinfoil hat writing briefs in crayon. As far as the public is concerned anyone who's serious in court has an attorney, but they can't tell Gerry Spence from a new graduate of an online law school.

Public perception matters AFTER the case. The worst case scenario is the federal judge agrees with Jim, the Democrat Legislature and our next Governor (Villaragosa or Newsom) deals with it by going Wisconsin on us and eliminating CCW all together, avoiding the 14th argument. If the public thinks it's a crazy guy that's gotten the decision of the court, they'll support it. If the plaintiff is sympathetic it's harder for the legislature to go that way.

When dealing with the press on the issue of guns, we should try hard to not come across as crazy.

I still think the Jim's basic argument is terrific.

hoffmang
08-16-2008, 12:14 AM
Jim,

Let's talk about where we agree.

1. Slaughterhouse is a disgusting bag of filth almost as bad as Cruikshank.
2. I'd be quite fine if at the end of the day we get P&I incorporation. No one is saying that incorporating via P&I would not remain selective.
3. To get P&I incorporation, inferior courts will have to ignore binding Supreme Court precedent that dates to relatively modern times. That means we either have to lose or the appeals go to SCOTUS.

I for strategic reasons think that due process incorporation in the 9th will be enough and may not get to SCOTUS.

Remember that Saenz is not a 14A case. It only uses the 14A as evidence to support its reasoning. Saenz stands for the rule that California couldn't charge out of state drivers $0.25 per mile without charging CA drivers the same $0.25. An interesting Saenz challenge would be an as applied challenge to hotel room taxes, but you'd probably lose because the hotel taxes also apply to in state residents "equally."

Equal protections law is harder than it appears. I made a dumb mistake on it in front of Don Kates who quickly pointed out how it really works in application - especially absent heightened scrutiny that we're lacking before incorporation.

-Gene

hoffmang
08-16-2008, 12:18 AM
I believe the Federal "arbitrary and capricious" standards would apply, not the Cali standards, because I'm a "Federal citizen" whose rights are protected by the Federal court. I could be wrong of course, but this seems very possible. And if that happens, if it turns out that the Cali permit system cannot possibly meet Federal administrative authority standards, then I've just moved the ball a BIG step forward, right?
Until it is incorporated, the 2A is like the grand jury requirement. You can enforce it against the United States Government, but you can't enforce it against the State of California. You keep putting the cart before the horse.

BUT: the single easiest structural cure for what's going on here would be to force Cali to honor out-of-state permits the same way they honor out-of-state driver's licenses. That would be WAY cool.
Absent a Federal law (well within Congresses powers btw) this is not going to happen. The patchwork of reciprocity is all the evidence the other side needs to prove that CCW is not something that has nearly universal comity. It's more like sales taxes which are varied throughout the Union.

-Gene

hoffmang
08-16-2008, 12:27 AM
If Jim can afford them, or they're willing to work for what he can afford, he should use them. I agree with Romandad, there are tons of lawyers who would do a better job than even a really impressive, smart and well informed layperson, just because they know the proceedures. I'll contribute to a fund, but I think it would run into the hundreds of thousands.[QUOTE]

What happens if Jim draws an anti gun district court judge and doesn't have the resources to either extricate himself or win at the appellate level? What if he then gets a bad panel? Can Jim on his own afford to fund a case all the way through SCOTUS? BTW: we have a couple of funds for this. There are two discrete issues here. 1. Is the argument Jim is putting forth worth pursuing above and beyond all the cases currently be pursued? I'd argue that the answer is no as I'll explain below.

[QUOTE]
I still think the Jim's basic argument is terrific.
It would be terrific after the 2A is incorporated against the states. However, once it is, any plaintiff - resident or not of California - can bring the case(s) vis-a-vis loaded open carry and CCW shall issue/fairness. The gating issue to any of Jim's arguments are whether he has a right to bear arms in California. Today the answer to that question is a resounding no. We have two very active vehicles in California - Doe and Nordyke that will likely get Incorporation. Both are already funded and both have all of the best gun lawyers in the country working on them. Let's let them run their course a bit before we stack on pro-se or underfunded litigation that could have negative impacts on either. Note that Nordyke has no district court judge and if Jim were to get a bad judge draw, Alameda could attempt to have Nordyke put over as a related case. That may never happen as Nordyke will probably not be remanded but why add more risk for little gain?

This stuff is complex and the legal system is a bit more frustratingly precise than we layman often think of how it should operate. I'm attempting to explain the issues but you have to believe me that it is this pedantic. Other posters here - who are actually lawyers - will likely chime in to agree with me on these points regarding equal protection law.

-Gene

hoffmang
08-16-2008, 12:36 AM
The easiest way for the Federal court to allow me to avoid arbitrary and capricious processes would be to let me pick my county. I'd go along with that eagerly.

That would be neat, up until California amended the Penal Code to have all out of state permit applications be submitted to the Sacramento County Sheriff (or San Francisco). It's not a win that gets us something enduring.

-Gene

1JimMarch
08-16-2008, 12:40 AM
I agree that due process incorporation will likely be easier than P&I.

Where we disagree is in the need to do incorporation before this case.

Remember: there's another variant of this same suit available. Say you're a WA state resident, and you have a Utah out-of-state permit. You go to Colorado. CO honors UT permits, but only for Utah residents. CO punishes you as a WA state person for living in a state that doesn't do reciprocity with CO.

In other words, the Utah guy and the WA guy get treated differently in CO based purely on where they come from, even though both have the same permit, same training, same background check.

THAT will come apart even faster than what I'm describing. Lonnie Wilson is in THAT boat.

1JimMarch
08-16-2008, 12:42 AM
That would be neat, up until California amended the Penal Code to have all out of state permit applications be submitted to the Sacramento County Sheriff (or San Francisco). It's not a win that gets us something enduring.

But now the out-of-stater is hosed as compared to a Mendocino resident.

The weirdness happens as a result of California's patchwork system, which won't survive the moment a court gets to look at it.

As to Cali eliminating CCW: won't happen. Trust me. WAY too many people with really big money in the current permitholder pool. They'll all get pissed and give big money to the GOP. It would also help screw Dems nationally and people like Howard Dean would tell 'em to cool it.

mymonkeyman
08-16-2008, 1:40 AM
A complaint is supposed to contain a short and plain statement of jurisdiction, the facts which give rise to the claim, and a prayer for relief. It's not supposed to cite cases (except possibly one or two cites to a fundamental super high level case that essentially created the cause of action) and is definitely not supposed to contain legal arguments. It should be organized by numbered paragraphs containing separate factual accusations. Other faux-pas include using the word "I", using contractions, and having a table of contents (except for an enormously long complaint).

Look at the Heller Complaint. (http://www.gurapossessky.com/news/parker/documents/complaint.pdf)

FABIO GETS GOOSED!!!
08-16-2008, 8:40 AM
I agree that due process incorporation will likely be easier than P&I.

Where we disagree is in the need to do incorporation before this case.

Remember: there's another variant of this same suit available. Say you're a WA state resident, and you have a Utah out-of-state permit. You go to Colorado. CO honors UT permits, but only for Utah residents. CO punishes you as a WA state person for living in a state that doesn't do reciprocity with CO.

In other words, the Utah guy and the WA guy get treated differently in CO based purely on where they come from, even though both have the same permit, same training, same background check.

THAT will come apart even faster than what I'm describing. Lonnie Wilson is in THAT boat.

What you're missing here is that your P&I argument won't fly unless the out of state discrimination implicates some fundamental right of self defense, etc. You don't have that fundamental right in the states unless you have incorporation. P&I doesn't give you any way around that.

hoffmang
08-16-2008, 11:11 AM
But now the out-of-stater is hosed as compared to a Mendocino resident.


No. The out of stater is equally as hosed as an in state resident which means he's getting all the equal protection that a state has to give an out of stater.

As a San Mateo County resident, after incorporation, I have an equal protection claim at a heightened scrutiny level as between residents of Mendocino County and myself because they are getting to exercise an incorporated fundamental right more easily than me.

As I said above - equal protections analysis doesn't mean that you get a fair claim to the right itself - you just get to make sure you are either equally privileged or equally screwed. In some cases (but not yet guns) there are disparate impacts analysis that can change that, but we're a long way from that.

-Gene

hoffmang
08-16-2008, 11:19 AM
Where we disagree is in the need to do incorporation before this case.

Remember: there's another variant of this same suit available. Say you're a WA state resident, and you have a Utah out-of-state permit. You go to Colorado. CO honors UT permits, but only for Utah residents. CO punishes you as a WA state person for living in a state that doesn't do reciprocity with CO.


Let's posit that Washington State decides to honor Oregon fishing licenses. By your logic, I would have an equal protection claim that my California fishing license should be valid in Washington State. However there is no fundamental right to fish with only a license. Seeing as the people don't have the right to keep and use fishing tackle, the equal protection claim would fail. That's why incorporation has to happen first.

-Gene

Anthonysmanifesto
08-16-2008, 4:19 PM
IANAL,
This is just the thinking of a non-lawyer, but I'd try to get even a mediocre CA lawyer to work with you on this. Maybe one looking to make a name for himself, maybe one not that long out of law school, willing to do it for a deeply discounted rate.

these are my civil rights too... we have the resources and the professionals.

the case will come.

chill

1JimMarch
08-19-2008, 1:26 AM
However there is no fundamental right to fish with only a license.

But there IS a federally recognized right to self defense post-Heller.

Sigh. OK. Let's not go round and round this.

First of all, Gene, I was too harsh with you earlier. My apologies, I got wrapped up in this too tight.

Question: do you see any harm in the following letter, attached with a CCW app and a $20 postal money order to Imperial County?

---

August 19th 2008

Sheriff Raymond Loera
Imperial County Sheriff's Office
328 Applestill Rd.
El Centro, CA 92243

Sheriff Loera,

Please find attached my application for a California Concealed Weapons Permit (CCW).

As you can see, this application is unusual due to my address in Tucson Arizona. Your county is the closest geographically to me, and hence appears to be the appropriate issuing agency.

As you are no doubt aware, the US Supreme Court recently decided the case of DC v. Heller. It established that the Federal government protects a basic civil right to personal defense. While the Heller case was about gun ownership in the home, the court went out of their way to define the term “bear” in the 2nd Amendment as involving a personal right to self defense out of the home. Pay particular note to the definition of “bear arms” cited in the Heller case, linked by Justice Scalia to Justice Ginsburg's dissent in Muscarello v. United States, 524 U.S. 125 (1998). I would also recommend a detailed look at the cases found in footnote #9 of Heller and what they uniformly say.

At present, it is still an open question as to whether or not the 2nd Amendment is “incorporated” against the states: that is, does it form a limitation as to what a state can do to it's own citizenry, especially in a state such as California where there is no obvious “right to arms” clause in the state constitution?

However, there is a body of 14th Amendment-related case law that is uniformly clear on one aspect of the 14th Amendment: the “privileges and immunities” clause prevents a state from discriminating against visiting residents of other states in any area of basic civil rights recognized and protected at the Federal level. In the “post-Heller world”, those Federally protected rights include a right to bear arms.

The controlling case law is Ward v. Maryland 79 U. S. 418 (1870) with it's principles “re-invigorated” in Saenz v. Roe, 526 U.S. 489 (1999). Both cases are broadly similar and are based on the same ideas.

As you are likely aware, California provides a mechanism to obtain CCW for state residents (albeit with radically different standards between counties and even towns) yet provides no mechanism for access to such a permit for non-California residents. California doesn't recognize CCW permits issued by other states, such as mine from AZ. The Heller case, when combined with the Ward and Saenz standards for a state's behavior, renders this “cross border discrimination” in a basic civil right flatly unconstitutional.

You should also be aware that since we are now talking about a Federally protected civil right, the existing Federal standards on “arbitrary and capricious” application of administrative controls will apply to any legal challenge by someone whose rights are under Federal review due to the cross-jurisdictional nature of the matter (one state discriminating against a resident of another state).

I look forward to your response to my application.

Jim March (address, etc.)

---

Me again. This will tell us a lot about how they intend to respond to this type of challenge. It also puts the case (if such occurs) into Federal court somewhere in SoCal (near Imperial anyhow) which in turn is easier for me to get to than Sacto. That also moves it way the heck away from Nordyke, making case consolidation(which would be bad!) less likely...?

It will sure as heck settle the "standing" question.

1JimMarch
08-19-2008, 1:28 AM
mymonkeyman: thank you for the link to the Heller complaint. Cool. One problem though: it was filed in 2003. The Twombley decision came down in 2007...and per the article I linked to, changed the rules on Federal pleading.

Am I wrong on that, or are you giving me outdated advice?

peekay331
08-19-2008, 2:50 AM
Jim, I admire your ambition. Here is some non-legal advice from a practicing attorney to get you pointed in the right direction. I do not practice civil rights law so I have no idea whether your claims have substantive merit. But here is some general advice concerning drafting complaints.

Federal pleading standards are fairly lax compared to state standards. Generally speaking, you never want to plead more facts than you need to get past a 12(b)6 motion to dismiss, i.e. "give notice to the other side." Reason being, the more facts and law you plead, the more "ammunition" you give the other side to fire at you in a motion to dismiss. It also unnecessarily prematurely binds you to a position. Your complaint is likely way beyond the standard required by current pleading requirements.

That be said, you may actually want to have a 12(b)6 filed against you because the only way you'll achieve your goal of making law is to have it decided by the 9th Circuit and this will get you there faster. Your dispute is a legal rather than factual dispute. So even if you get past the pleading stage, it'll almost certainly be decided by a motion for summary judgment which is way more complicated to draft. Either way, you'll likely end up in the appellate court.

Hit me up by PM and I'll get you the entire Rutter's Federal Civil Procedure Before Trial via email or something. It'll be invaluable in your quest.

1JimMarch
08-19-2008, 3:23 AM
Again I ask: does Twombly affect Federal pleading standards in a case like mine?

And I'll *keep* asking it every time somebody talks about pleading layout.

Look...go google these two words:

pleading twombly

You'll get 33,000 hits. Do it. Peruse some of the top hits.

It appears that Twombly had as much effect on pleading standards as Heller will have on gun control (we hope).

Now if somebody came onto this board talking about Federal views on the 2nd Amendment without citing Heller, while ignoring Heller even exists, while ignoring every mention of Heller, we'd look at them sort of skeptically. Right?

Yet I'm being bombarded with advice on pleadings that appear to stem from pre-Twombly standards. NOBODY has talked about Twombly, nobody has admitted it hit (in 2007!!!), nobody has discussed whether or not it would affect a pleading in my type of case. I can show you link after link after link from serious sources saying it's going to affect EVERY type of Federal pleading, even criminal complaints from Federal attorneys.

Either I'm crazy, or you're ALL ignoring a total sea change in how Fed pleadings are to be done. Now yeah, I understand that my phrasings are "funky" as hell, the use of "I" is screwy, but that aside Twombly seems to say I've got to back my complaint with enough facts and cites to survive initial judicial review. And that review is NOT a 12(b)6 from the other side, it's a trashcanning from the judge and so far, there's no easy mechanism to even appeal that! It appears the only way to deal with a "Twombly pleading failure" is to re-file the case.

Has Rutter been updated for Twombly? If it hasn't, I'm not interested unless somebody can prove to me that Twombly doesn't apply.

navyinrwanda
08-19-2008, 6:16 AM
States are only allowed to ban concealed carry when open carry (true LOADED open carry) is allowed.

Read Heller and read the cases Heller cites.

OK, I give up. Where does Heller find a right to carry outside of the home?

hoffmang
08-19-2008, 10:17 AM
But there IS a federally recognized right to self defense post-Heller.

Sigh. OK. Let's not go round and round this.

First of all, Gene, I was too harsh with you earlier. My apologies, I got wrapped up in this too tight.

Question: do you see any harm in the following letter, attached with a CCW app and a $20 postal money order to Imperial County?



There is no problem at all with a letter like that.

I apologize for one last round of round and round, but I agree with you that there is a Federal Right to self defense. However, before that right is Incorporated it has as much force against the states as the requirement of a grand jury indictment right - which is none.

-Gene

RomanDad
08-19-2008, 11:02 AM
OK, I give up. Where does Heller find a right to carry outside of the home?

"We find that the 2nd Amendment guarantees the individual right to possess and carry weapons in case of confrontation." District of Columbia v. Heller, 544 U.S.________, 19.

Thats the clearest rule as to what the Court says the 2nd Amendment MEANS.... It doesn't say "We find that the 2nd Amendment guarantees the individual right to possess and carry weapons in case of confrontation in the home." Or "when not in public." or "when confronted in their bedrooms."

Yes, the specific HOLDING of Heller deals specifically with the possession of firearms IN THE HOME as that it the limit of the facts of the case at bar. Heller wasn't ASKING for a permit to carry outside his home the firearm couldn't lawfully POSSESS IN THE FIRST PLACE. Therefore the Court couldn't grant him that right if it wanted to, as it wasn't an issue before the Court.... But the RULE OF LAW with regard to the Second Amendment is stated above and is about as broad as possible. So much so that it goes far beyond the scope of the Heller case itself.

peekay331
08-19-2008, 11:28 AM
Again I ask: does Twombly affect Federal pleading standards in a case like mine?

And I'll *keep* asking it every time somebody talks about pleading layout.

Look...go google these two words:

pleading twombly

You'll get 33,000 hits. Do it. Peruse some of the top hits.

It appears that Twombly had as much effect on pleading standards as Heller will have on gun control (we hope).

Now if somebody came onto this board talking about Federal views on the 2nd Amendment without citing Heller, while ignoring Heller even exists, while ignoring every mention of Heller, we'd look at them sort of skeptically. Right?

Yet I'm being bombarded with advice on pleadings that appear to stem from pre-Twombly standards. NOBODY has talked about Twombly, nobody has admitted it hit (in 2007!!!), nobody has discussed whether or not it would affect a pleading in my type of case. I can show you link after link after link from serious sources saying it's going to affect EVERY type of Federal pleading, even criminal complaints from Federal attorneys.

Either I'm crazy, or you're ALL ignoring a total sea change in how Fed pleadings are to be done. Now yeah, I understand that my phrasings are "funky" as hell, the use of "I" is screwy, but that aside Twombly seems to say I've got to back my complaint with enough facts and cites to survive initial judicial review. And that review is NOT a 12(b)6 from the other side, it's a trashcanning from the judge and so far, there's no easy mechanism to even appeal that! It appears the only way to deal with a "Twombly pleading failure" is to re-file the case.

Has Rutter been updated for Twombly? If it hasn't, I'm not interested unless somebody can prove to me that Twombly doesn't apply.

First off, you may or may not know what the heck you are talking about substantively. That being said, you don't have a clue as to the procedural requirements of filing and maintaining a lawsuit in federal court. Quit being such an *** and you may actually get more help. Here's a hint.

Stop focusing on Twombly. Your complaint, as phrased, is well beyond any requirement of Twombly or any other federal pleading standard. Twombly is more concerned with pleading facts, not the law itself.

Not only that, your complaint provides so much case law that some assistant attorney general is going to have a field day with it. You are way oversimplifying things if you think that some 1800's case is still good law. More than likely, there will be a crapload of exceptions to that "good law." Your problem is that they're going to attack you (with the ammo you've given them by citing so many cases) on so many sides your head is going to spin and fall off.

And no, you are wrong. I don't see anywhere in the FRCP where a judge can just "trashcan" a case. The only proper mechanism is a Rule 12 challenge. Also, btw, Rutter is pretty much the bible of the federal courts. I guarantee you that every single district court judge in California has a copy within 5 feet of where they sit and is the first thing they reach for when they have a procedural question. It's good to be in line with Rutter.

navyinrwanda
08-19-2008, 1:11 PM
"We find that the 2nd Amendment guarantees the individual right to possess and carry weapons in case of confrontation." District of Columbia v. Heller, 544 U.S.________, 19.

Well, for starters, that sentence doesn't appear anywhere in the majority opinion or in any of the dissents.

You seem to recognize that the Court's holding was limited to the use of arms "for traditionally lawful purposes, such as self-defense within the home." But the Court didn't rule on the whether those lawful purposes extended to carrying arms in public, whether concealed or in full view. While it might be reasonable to infer from the majority opinion that they would rule so in a future case — and I certainly hope they would — as of today, there is no federal or California "right" to carry arms in public.

If there has been some recent district or circuit ruling otherwise, please let me know.

ilbob
08-19-2008, 1:36 PM
I wonder when we will see the first pro se 922(o) suit. I fully expected one to have been filed already.

Python2
08-19-2008, 1:43 PM
.... as of today, there is no federal or California "right" to carry arms in public.

. One, most all of us know that, two we just had SCOTUS ruling recently that stated just one thing "individual right" period. Do not expect an overnight change in California, more court cases must occur. However, the statement will go a long way to our benefit IMHO.

tango-52
08-19-2008, 2:00 PM
Well, for starters, that sentence doesn't appear anywhere in the majority opinion or in any of the dissents.




You will find that sentence on page 19 of the Majority opinion:

Opinion of the Court c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

RomanDad
08-19-2008, 2:11 PM
Well, for starters, that sentence doesn't appear anywhere in the majority opinion or in any of the dissents.

You seem to recognize that the Court's holding was limited to the use of arms "for traditionally lawful purposes, such as self-defense within the home." But the Court didn't rule on the whether those lawful purposes extended to carrying arms in public, whether concealed or in full view. While it might be reasonable to infer from the majority opinion that they would rule so in a future case — and I certainly hope they would — as of today, there is no federal or California "right" to carry arms in public.

If there has been some recent district or circuit ruling otherwise, please let me know.

Page 19 of the majority opinion... Just like I cited it.... ;)




http://i5.photobucket.com/albums/y154/MovieLawyer/Heller.jpg



Yes... Currently there is no right in ANY state with regard to the Second Amendment YET because INCORPORATION wasn't before the Court EITHER....

But, I see no way one can READ Heller and come to the conclusion there is a "Home" requirement in the second amendment...

BTW, you might want to read that particular page OVER AND OVER again as its one of the most important in the entire opinion... In the next sentence it goes on to describe the 2nd amendment as a PRE-EXISTING (to our Constitution- AKA "Fundamental") right.... Which is the linchpin to Incorporation to the States.

navyinrwanda
08-19-2008, 2:42 PM
You will find that sentence on page 19 of the Majority opinion:

Opinion of the Court c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.


P. 19 is likely dicta, not holding. Whether it's obiter dicta or rationes decidendi is what appellate attorneys and judges get paid to litigate and decide. It's also what law professors spend careers writing papers about, and law students spend years learning about. Wikipedia has good explanations of both terms.

I don't mean to be argumentative, but this is how this stuff works. In its holdings, the Court explicitly set some boundaries on the scope of 2A rights, including concealed weapons prohibitions. The extent of any 2A rights to bear arms in public will be determined by future litigation. Unfortunately, I'm not optimistic that this will happen anytime soon.

Fortunately, challenges to onerous and intrusive state laws infringing the basic rights at issue in Heller are likely to come much sooner, following incorporation at the 9th Circuit or SCOTUS.

RomanDad
08-19-2008, 3:05 PM
P. 19 is likely dicta, not holding. Whether it's obiter dicta or rationes decidendi is what appellate attorneys and judges get paid to litigate and decide. It's also what law professors spend careers writing papers about, and law students spend years learning about. Wikipedia has good explanations of both terms.

I don't mean to be argumentative, but this is how this stuff works. In its holdings, the Court explicitly set some boundaries on the scope of 2A rights, including concealed weapons prohibitions. The extent of any 2A rights to bear arms in public will be determined by future litigation. Unfortunately, I'm not optimistic that this will happen anytime soon.

Fortunately, challenges to onerous and intrusive state laws infringing the basic rights at issue in Heller are likely to come much sooner, following incorporation at the 9th Circuit or SCOTUS.

Im not even sure we're actually disagreeing at this point... You started this by saying 'where does Heller say the Second Amendment applies outside the home', and the answer is there are 50 some odd pages that for the first time in our history establish the individual rights preserved by the 2nd. It speaks NOTHING to limitations of home possession. Those 50 some odd pages are Scalia writing on the blank slate of Second Amendment law and framing the terms of the Second by which future cases will be bound.

If youre arguing that Heller isnt a Claifornia Second Amendment case, well, "DUH"... Of course it isnt... But the writing is on the wall. And the arguments are there... And the fight is coming... And I for one am not willing to concede a single inch of what the 2nd means with regards to the right of public self defense.

But... Lets turn this around a bit... Could you point to the language in Heller that indicates that possession of firearms for self defense OUTSIDE the home is not protected by the second amendment? I know there is the "Prohibition of Concealed Carry language" on page 54 (btw you might want to check out the other limiting language which is quite precise as to where the 2nd amendment doesn't apply "Traditionally Sensitive Places such as schools and government buildings", Thats a pretty LIMITED subset of PUBLIC places the 2nd DOESN'T apply). Regardless thats not what Im referring to... Find me any language that indicates that the Second amendment is limited to the home.

Specifically I would point you to page 57 where the Court discusses OTHER public carry cases...


In a very real sense, California does not have a CCW law. California has CPC $12031 that makes the carrying of loaded firearms EITHER OPENLY OR CONCEALED outside the home illegal. CPC $12050 is the exception to $12031 ALLOWING people to exercise their right to possess and carry firearms in case of confrontation outside their homes. CPC $12050 then says that in large urban counties the method of carry will be CONCEALED and in smaller rural counties OPEN carry is also available if the issuing agency wants to allow it. Its only by necessity that $12050 is also an exception to CPC $12025, as thats the MANDATED method of loaded carry.

navyinrwanda
08-19-2008, 3:42 PM
PC 12031 is binding law until repealed, modified or overturned. Bearing arms in public wasn't at issue in Heller. You can certainly use any part of Heller (or any other decision) to argue that PC 12031 violates 2A.

But 2A first must be incorporated, and then — and only then — could another action be brought to overturn PC 12031. It's my opinion that it'd be hard to prevail on that action in a California federal district court, or at the 9th Circuit.

YMMV at other districts and circuits, or it might go all the way to SCOTUS. It took Heller five years to wind its way through the system. I think public carry is an emotional issue that will be hard-fought, and will likely take several years to resolve. Who knows? A legislative solution might happen sooner...

But that's my opinion. The other stuff is law and procedure.

RomanDad
08-19-2008, 3:48 PM
But 2A first must be incorporated, and then — and only then — could another action be brought to overturn PC 12031. It's my opinion that it'd be hard to prevail on that action in a California federal district court, or at the 9th Circuit.
Yes and no... You don't HAVE to have incorporation to argue against 12050/12031. A 12050 case could just as easily establish incorporation as any other... And its my opinion that it wont be difficult to prevail on a challenge of 12050 given the scope of Heller.

But thats what this entire thread is discussing..... The case that will eventually be brought to challenge 12050....:confused: So I'm not sure what your point is any more. If its to say Heller didn't overturn 12050? Thanks... We got that. Which is why we're discussing a case to overturn it. If its to say were going to lose if we try, thats what people said about the DC ban for 30 years.

Jim has some ideas for a case.... There are some other ideas floating out there.... In the final analysis, the courtroom doors are open to whoever walks through them...

RomanDad
08-19-2008, 5:12 PM
One other thing to consider...

I know the "prevailing sentiment" on calguns is we should wait until incorporation is established to bring a CCW case.

But the fact of the matter is, Calguns has no way of controlling that...

The case thats going to MATTER is pretty much the first one that is brought.... If its a BAD case or poorly argued it could hurt everybody...

And as we can see, some people are getting VERY anxious. There are hundreds of thousands of attorneys out there who have never heard of Calguns, and dont care what the agreed strategy is, and there are dozens and dozens of potential plaintiffs who may not want to wait EITHER.... I suspect some people in California and other "may issue states" read Heller and said "Hot Damn!!! Lets get a CCW NOW!" and are probably going to be denied in the upcoming months. They are likely to be the first plaintiffs.

So the question is: Are we going to wait for a paved field and potentially let some underfunded, under prepared whack job be the test case for CCW, or are we going to bring the RIGHT case, with the RIGHT resources, even though incorporation hasnt been decided yet (although it SHOULD BE prior to any case filed NOW getting to final resolution).


Just food for thought.

navyinrwanda
08-19-2008, 6:13 PM
I'm honestly not sure why this is so confusing...

If you understand that the Second Amendment doesn't apply to the states until it's incorporated, and
You understand that Heller didn't have any effect on the prohibitions in PC 12031, then
On what basis would you challenge PC 12031? And why would you challenge PC 12050?

Maybe the confusion lies in the concept of "the scope of Heller." If you understand that Heller didn't speak to the prohibitions in PC 12031, then I'd think you'd realize that its "scope" is actually fairly narrow. That's why the initial post-Heller litigation has focused exclusively on state and local bans on firearm possession that are virtually identical to the one overturned in DC by Heller.

While many people (including me) think that incorporation is likely, it's by no means assured. Public carry simply wasn't addressed by Heller. To challenge restrictions on public carry in the courts, you'll need a "hunting license" — in the form of a fully incorporated Second Amendment. Once that hunting license is issued, any and all suspect infringements are fair game. So I think it's reasonable to say that the likelihood of success of any pre-incorporation Second Amendment litigation will be directly proportional to it's similarity to Heller.

You're absolutely right that the courts are open to anyone. I suspect that most every criminal defense attorney is trying to use Heller as part of their client's defense (you can track some of these cases at http://volokh.com/posts/chain_1218730602.shtml). I also suspect that there may be several challenges to state and local firearms laws based upon over-broad interpretations of the "scope of Heller." But I can't really see that any of these will do any harm other than waste time and money.

Instead, since we have a a very important election coming up in two months, it's my hope that people who care about Second Amendment rights would put their energy towards electing supporters of those rights. Just because there's now a legal avenue to challenge bad laws doesn't mean that we should rely exclusively on the courts to protect our rights. For me, it's clear who supports robust Second Amendment rights — and who doesn't. I'm spending my time and money trying to get Republicans elected.

GuyW
08-19-2008, 6:29 PM
If you understand that the Second Amendment doesn't apply to the states until it's incorporated, and


The Right to Keep and Bear Arms is a right that pre-dates the creation of any state.

RomanDad
08-19-2008, 7:59 PM
I'm honestly not sure why this is so confusing...

If you understand that the Second Amendment doesn't apply to the states until it's incorporated, and
You understand that Heller didn't have any effect on the prohibitions in PC 12031, then
On what basis would you challenge PC 12031? And why would you challenge PC 12050?
.

This is perhaps the most BIZARRE question I've ever read on this forum. And you should be very proud because that's really an accomplishment. :D

Correct- The Second Amendment doesnt apply to the states until its incorporated. And Heller didn't have any effect on CPC 12050 or 12031. But Heller didn't have any effect on San Francisco Police Code $617 or Chicago Municipal Code 11.1 either as neither are Federal Laws.

Yet both are being challenged as we speak. Because under the reasoning of Heller, that the second amendment PRESERVED for INDIVIDUALS the GOD GIVEN right to KEEP AND BEAR WEAPONS FOR SELF DEFENSE in case of confrontation, THEY ARE UNCONSTITUTIONAL, JUST AS CPC 12031/12050 are for the SAME REASON.

Are the Chicago and San Francisco bans Similar bans to DCs? Yes... But they're certainly not DIRECTLY on point with the D.C. ban... Arguments need to be made and analogies drawn, and the incoporation argument needs to be made (and that argument will be the same whether its made in the San Francisco ban or the Chicago ban or an AW ban or a CCW ban.) and thats what good attorneys do every day.

And its not as if the complete and total ban of the right to PUBLIC self defense is way out of left field, given what the Court wrote in Heller with regard to the complete and total ban of PRIVATE self defense. Its the NEXT logical step in areas where citizens already have the right to possess handguns in the home, but DON'T have that right when they leave the home (as the legislatures of 40 other States have already acknowledged they do, without ANY intervention from the Courts).

Are you actually suggesting we should accept the continuing infringement of our rights because we would better spend our time getting Republicans elected?

Does the word OXYMORON mean anything to you??? One has nothing to do with the other. You can go work for as many Republican candidates as you want.... You can give as much money to Republican candidates as the law allows... THE DISCUSSION IN THIS THREAD IS IN NO WAY STOPPING YOU.... I can, and will do the same.... But that doesn't mean we should simply ignore the fact that the State of California is infringing on our GOD GIVEN right to defend our lives with firearms.

WHY would we challenge 12031 and 12050?

BECAUSE THEY ARE UNCONSTITUTIONAL RESTRICTIONS ON THE RIGHT OF INDIVIDUAL AMERICANS TO POSSESS ARMS FOR SELF DEFENSE. THAT'S WHY....

And I know all too well the inevitable consequences of laws which prevent law abiding citizens the right to defend themselves... The innocent get victimized by criminals. That may not matter to you a great deal, but it matters to me. Every day we wait for the State of California to grant its humble subjects the privilege of self defense, more people become victims, because they never had the CHOICE to arm themselves.

I know you've got a little egg on your face because your second post on this thread was just factually wrong regarding the "Heller at page 19" quote that you insisted didnt exist, and I suspect that the rest of this dialog may have more to do with saving face than anything else. Forget it... That **** happens... I know it and have it (and the rest of these issues) committed to memory because I've read Heller over two dozen times now... I read it to my child as a bedtime story... If you'd like I can go into the three bears version where Scalia plays papa bear and Adrian Fenty is Goldilocks.

But it seems like you're just intent on arguing for the sake of argument at this point? I assume you're a person of good will, and you mean no ill will, and I truly appreciate intellectual sparring on the ARGUMENTS as that helps us make them stronger for when the challenge DOES COME, but to just say "don't challenge the law, just elect Republicans" seems a bit unproductive. If thats all you have to add to the discussion, thanks- We'll take that under advisement, and leave it at that.

hoffmang
08-19-2008, 9:03 PM
May I cut through some BS.

LCAV is advising all the cities to cave in and repeal any handgun related ban to attempt to avoid Incorporation. Expect both SFHA and Chicago to relent in the next 4 to 6 weeks.

There is one Incorporation case at the court of appeals in the 9th Circuit with a pro-2A panel. I'm not 100% sure LCAV is aware of it so I'll leave it there.

Should that case get mooted too, and since Senator Scott's bill will make the ban on open carry loaded complete, one of the second best Incorporation cases is a challenge to the ban on open carry loaded.

The best way to bring that challenge is to be denied a CCW whose good cause statement is "The right of the people to bear arms shall not be infringed and the only way I can bear arms is to apply for and receive a CCW," get denied, and sue the sheriff and the AG with the basic theory that "one of you is infringing my right to bear arms" with liberal quotes of Scalia's holding (not dicta) that bear arms means carry and is not a part of an idiom "keep and bear."

For higher certainty, I prefer a simpler route to Incorporation. However, bear has to mean something and a simple case that looses out of the 9th Circuit gets us back to SCOTUS before we lose 1 of 5 heartbeats.

-Gene

1JimMarch
08-19-2008, 9:46 PM
OK. Since I'm pondering applying (likely with Imperial county as it's closest to me) for purposes of denial and standing, let's table the whole pleading/Twombly thing for now. We'll have to deal with it at some point.

Meanwhile, Lonnie Wilson has come through with two really critical points.

FIRST:

It turns out I *can* legally get a California CCW as a Tucson AZ resident. Huh? Yeah, we all forgot about the 90-day employment-based CCW thing in PC12050 that nobody uses.

That gives us two things: statutory proof that the Cali legicritters figured they could do a background check on a non-resident (BIG point as we'll see) and that the financial costs to an out-of-stater are at minimum EIGHT TIMES HIGHER than the costs for an in-stater. Plus the out-of-state-available type permit is much harder to get - I don't likely do enough business to qualify. Plus the 90-day license is only good in one county where a "real" CCW (two years) is good Cali-wide.

SECOND:

Lonnie also points out a failed challenge very similar to mine in the 2nd Circuit in 2003 - Bach v. Pataki:

http://federalism.typepad.com/crime_federalism/2005/05/second_circuit_.html

The first thing the Bach court held was "collective right" - well that's shot to hell (pardon the pun) by Heller.

Second thing is that since the right being discriminated against (gun permit access) isn't "fundamental", it doesn't fall under the "privileges and immunities" protected under Ward v. Maryland, Saenz v. Roe and the like (yeah, Mr. Bach cited both). Yet again, in the post-Heller world this falls apart.

Third thing is that New York claims to have no way to check backgrounds or "good cause" of a Virginia resident. California's 90-day option for out-of-staters says that California can't use this claim: statutorily they're set up to do out-of-state permits.

Ohkay. That begs the question: should I apply for 90-day CCW in *Monterey* (or Santa Cruz, come to think) where I last did California business? Saying I "do business" in either would be a serious stretch, there's little ongoing activity. Better to apply for a two-year but then later use the availability of the 90-day thing against them in case they use Bach as a blueprint.

Thoughts?

hoffmang
08-19-2008, 10:09 PM
You could still be tripped up by not having an incorporated right to arms. You can apply to set things up for a post incorporation case, but prior to incorporation you're still just creating another incorporation case that's more complex for an anti judge to act confused with.

-Gene

Liberty1
08-19-2008, 10:28 PM
With Heller citing Robertson v Baldwin (1896), "...the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons...", I don't see any 12050 challenge going anywhere on 2nd A. grounds. Better to use the Ohio method of the right to OC to force a reasonable CC privilege.

RomanDad
08-19-2008, 10:37 PM
OK. Since I'm pondering applying (likely with Imperial county as it's closest to me) for purposes of denial and standing, let's table the whole pleading/Twombly thing for now. We'll have to deal with it at some point.

Meanwhile, Lonnie Wilson has come through with two really critical points.

FIRST:

It turns out I *can* legally get a California CCW as a Tucson AZ resident. Huh? Yeah, we all forgot about the 90-day employment-based CCW thing in PC12050 that nobody uses.

That gives us two things: statutory proof that the Cali legicritters figured they could do a background check on a non-resident (BIG point as we'll see) and that the financial costs to an out-of-stater are at minimum EIGHT TIMES HIGHER than the costs for an in-stater. Plus the out-of-state-available type permit is much harder to get - I don't likely do enough business to qualify. Plus the 90-day license is only good in one county where a "real" CCW (two years) is good Cali-wide.

SECOND:

Lonnie also points out a failed challenge very similar to mine in the 2nd Circuit in 2003 - Bach v. Pataki:

http://federalism.typepad.com/crime_federalism/2005/05/second_circuit_.html

The first thing the Bach court held was "collective right" - well that's shot to hell (pardon the pun) by Heller.

Second thing is that since the right being discriminated against (gun permit access) isn't "fundamental", it doesn't fall under the "privileges and immunities" protected under Ward v. Maryland, Saenz v. Roe and the like (yeah, Mr. Bach cited both). Yet again, in the post-Heller world this falls apart.

Third thing is that New York claims to have no way to check backgrounds or "good cause" of a Virginia resident. California's 90-day option for out-of-staters says that California can't use this claim: statutorily they're set up to do out-of-state permits.

Ohkay. That begs the question: should I apply for 90-day CCW in *Monterey* (or Santa Cruz, come to think) where I last did California business? Saying I "do business" in either would be a serious stretch, there's little ongoing activity. Better to apply for a two-year but then later use the availability of the 90-day thing against them in case they use Bach as a blueprint.

Thoughts?


JUST BE VERY CAREFUL with the "Serious Stretch" of where you do business.... You must be "Physically present in the jurisdiction during a substantial portion of your working hours..." (12050 a(d)(3)) and making false statements on a CCW app. is a misdemeanor (12051 (b)). PLUS, they don't tell you WHY you were denied and they can later say you were denied for cause (false statements on the application) and thus you still lack standing, thus wasting a lot of time and energy.

We have Plenty of applicants who get denied without stretching any facts. Hell, I know plenty of people who LIVE in other states but are working here temporarily. It happens quite a bit. They might make BETTER candidates.


With Heller citing Robertson v Baldwin (1896), "...the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons...", I don't see any 12050 challenge going anywhere on 2nd A. grounds. Better to use the Ohio method of the right to OC to force a reasonable CC privilege.

12050 doesnt prohibit the carrying of concealed weapons... Quite the contrary... It mandates it... As the only way people in large counties may carry LOADED guns for self defense. Concealment is merely incidental to the law, as that is how the legislature DEMANDS we carry, when we can carry. 12050 ALSO licenses the OPEN carry of loaded guns. So its not a "concealed weapons prohibition" at all. It is the licensing scheme by which the state allows people to carry LOADED guns either openly or concealed.

Basically all Baldwin means is that CPC 12025 is constitutional (concealed carry prohibited)... We don't need to overturn 12025.... We need to overturn 12050 as it applies to 12031.... See the last paragraph of post 97 above. California's laws on this subject are actually quite helpful at this point.... I don't want to say much more than that because I'm quite sure some other people are listening in....

1JimMarch
08-19-2008, 11:14 PM
With Heller citing Robertson v Baldwin (1896), "...the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons...", I don't see any 12050 challenge going anywhere on 2nd A. grounds. Better to use the Ohio method of the right to OC to force a reasonable CC privilege.

Oh dear Lord.

Let me try and make this clear. Baldwin isn't a gun case and doesn't do any analysis. The Heller court cited a bunch of real gun cases that also said concealed carry could be restricted, but all of those cases say "yeah, CCW can be banned so long as open carry is legal". All the "footnote 9" cases say that, and the Heller court went into much more detail on this part:

Few laws in the history of our Nation have come close to
the severe restriction of the District’s handgun ban. And
some of those few have been struck down. In Nunn v.
State, the Georgia Supreme Court struck down a prohibition
on carrying pistols openly (even though it upheld a
prohibition on carrying concealed weapons). See 1 Ga., at
251. In Andrews v. State, the Tennessee Supreme Court
likewise held that a statute that forbade openly carrying a
pistol “publicly or privately, without regard to time or
place, or circumstances,” 50 Tenn., at 187, violated the
state constitutional provision (which the court equated
with the Second Amendment). That was so even though
the statute did not restrict the carrying of long guns. Ibid.
See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).

Now I understand pessimism, yeah, but to be pessimistic in this fashion, to say that the whole issue will hinge on Baldwin, is to ignore a ton of other material throughout Heller.

If you ignore information that's sitting right there in the Heller decision, you're not going to get a reasonable read on the possibilities.

ptoguy2002
08-20-2008, 7:32 AM
You want to file a lawsuit pro se? Figure out a way to sue the Brady Campaign, VPC, etc to hit em on the $ side. Then everybody else could file a pro se lawsuit and then all their lawyer money would be used for that. That would probably be more fun, drain their money, and who cares if you loose?

What if we figured out a way so that every calgunner could file against the brady campaign in small claims court. Something small, say $10 damages for showing a picture of Feinstein while you were eating and you threw it up, it was the cost of the lunch. But that will cost them attorney's fees to show up to defend against it. If every calgunner did that.......

Gray Peterson
08-20-2008, 10:25 AM
ptoguy2002,

That's the definition of a SLAPP suit.

pullnshoot25
08-20-2008, 10:31 AM
... I read it to my child as a bedtime story... If you'd like I can go into the three bears version where Scalia plays papa bear and Adrian Fenty is Goldilocks.

This line makes me laugh. Your kids must have the greatest bed time stories :)

ptoguy2002
08-20-2008, 7:14 PM
ptoguy2002,

That's the definition of a SLAPP suit.

slapp ???
Not a lawyer.

ptoguy2002
08-20-2008, 7:23 PM
Found it - Strategic lawsuit against public participation
and then you have to pay their "reasonable" attorney's fees, yeah, bad idea