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hoffmang
12-20-2008, 9:41 PM
All,

Another bad California Court of Appeals case. People v. Flores (http://www.courtinfo.ca.gov/opinions/documents/D051215.PDF) is a criminal case where the criminal invoked Heller to attempt to overturn felon in possession, concealed carry, and loaded carry in public.

The first two are probably right, but the ruling on PC 12031 is wrong. Another bad criminal case. At least it's in the State court...

-Gene

alex00
12-20-2008, 9:49 PM
We need the criminals to stop trying to use OUR rights to win thier legal battles. ;)

yellowfin
12-20-2008, 9:58 PM
Can any action be taken to deter this kind of misuse of the law?

CSDGuy
12-20-2008, 10:03 PM
Remember, these cases are all pre-incorporation. These cases are going by those rules, most likely, thus they're rendering the right decision under the wrong rules... so to speak.

hoffmang
12-20-2008, 10:09 PM
Remember, these cases are all pre-incorporation. These cases are going by those rules, most likely, thus they're rendering the right decision under the wrong rules... so to speak.

Kind of. What's really occurring is that California Courts are intentionally attempting to undermine Heller when they really should be saying "not incorporated/"

You are somewhat correct in that most of these issues are going to be settled in Federal Court.

-Gene

CSDGuy
12-20-2008, 10:15 PM
Kind of. What's really occurring is that California Courts are intentionally attempting to undermine Heller when they really should be saying "not incorporated/"

You are somewhat correct in that most of these issues are going to be settled in Federal Court.

-Gene
Not surprised in the least. I would have been more surprised if the CA courts weren't trying to undermine the scope of Heller.

nobody_special
12-20-2008, 10:30 PM
Here is the relevant text, with emphasis added. This is exactly what I've been worried about, and what we've been warned about...


Finally, Heller does not require reversal of Flores's conviction under section 12031
for carrying a loaded firearm in a public place. (§ 12031, subd. (a)(1).) Although Heller
does not explicitly discuss such a prohibition, we believe section 12031 is so far removed
from the blanket restrictions at issue in Heller that its constitutional validity remains
undisturbed by the Supreme Court's opinion.

[... summary of PC 12031, including all the various exceptions ...]

This wealth of exceptions creates a stark contrast between section 12031 and the
District of Columbia statutes at issue in Heller. In particular, given the exceptions for
self-defense (both inside and outside the home), there can be no claim that section 12031
in any way precludes the use "of handguns held and used for self-defense in the home."
(Heller, supra, 128 S.Ct. at p. 2822.) Instead, section 12031 is narrowly tailored to
reduce the incidence of unlawful public shootings, while at the same time respecting the
need for persons to have access to firearms for lawful purposes, including self-defense.
(See People v. Foley (1983) 149 Cal.App.3d Supp. 33, 39 ["The primary purpose of the
Weapons Control Law is to control the threat to public safety in the indiscriminate
possession and carrying about of concealed and loaded weapons"].) Consequently,
section 12031 does not burden the core Second Amendment right announced in Heller —
" 'the right of law-abiding, responsible citizens to use arms in defense of hearth and
home' " — to any significant degree.5 (Heller, supra, 128 S.Ct. at p. 2831.) We,
therefore, conclude that Heller does not require reversal of Flores's section 12031
conviction.


5 The majority opinion in Heller provides little guidance with respect to how courts
are to determine whether the numerous firearm restrictions not explicitly addressed in the
opinion should be evaluated in light of the Second Amendment right recognized in that
case. (Heller, supra, 128 S.Ct. at p. 2821 [explaining that the court cannot be expected in
its "first in-depth examination of the Second Amendment" to "clarify the entire field"].)
The parties in the instant case provide little assistance. Flores politely asks this court to
"address the question" of Heller's applicability without proposing any analytical
framework for doing so. The Attorney General demurs as well, while incorrectly
asserting that Flores's convictions were each based on his being "a prohibited person" and
thus all fall within Heller's explicit felon in possession exception.
One of the dissenting opinions in Heller criticizes the majority for sidestepping
this difficult issue and notes that "adoption of a true strict-scrutiny standard for evaluating
gun regulations would be impossible" due to the ever-present compelling interest in
public safety in this context and the limited ability of courts to determine the efficacy of a
particular firearm restriction to address that interest. (Heller, supra, 128 S.Ct. at p. 2851
(dis. opn., Breyer, J.); see also Winkler, Scrutinizing the Second Amendment (2007) 105
Mich. L. Rev. 683 [explaining the difficulties of applying strict scrutiny to gun control
regulations and cataloguing the ways in which courts have and are likely to continue to
scrutinize gun laws after adoption of an individual rights approach to the Second
Amendment].) Further, as the dissent notes, it is "far from clear" that the firearm
prohibitions approved in Heller itself (e.g., felon in possession of a firearm) would
survive strict scrutiny analysis. (Heller, at p. 2851 (dis. opn., Breyer, J.).)
The Heller majority itself acknowledged that rational basis scrutiny is inapposite,
as the laws struck down in Heller itself would have met that lenient standard. (Heller,
supra, 128 S.Ct. at p. 2818, fn. 27.) Consequently, it appears that a mid-level standard of
scrutiny analogous to the "undue burden" standard (see Planned Parenthood of
Southeastern PA v. Casey (1992) 505 U.S. 833, 874 (plurality)) will ultimately prevail in
this context. (See Reynolds & Denning, Heller's Future In The Lower Courts (2008) 102
N.W.U. L.Rev. Colloquy 406, 414, fn. 29 [suggesting that Justice Breyer's dissent in
Heller, supra, 128 S.Ct. 2847, 2863, addressing this question implies "some sort of
'undue burden' " or " 'undue-burden-lite' standard" for firearm regulation].) We do not
attempt to set forth a definitive statement of the applicable standard here, but conclude
only that section 12031 does not violate the Second Amendment under any conceivable
articulation of such a standard.

alex00
12-20-2008, 10:42 PM
there can be no claim that section 12031 in any way precludes the use "of handguns held and used for self-defense in the home"

I didn't realize the Second only applied in my house.

FreedomIsNotFree
12-20-2008, 11:32 PM
What a piss poor decision.

How can they address the loaded question and not even mention Clark?

"As used here, a firearm is loaded if there is an unexpended cartridge or
shell in the firing chamber or in either a magazine or clip attached to the
firearm." (See CALCRIM No. 2530.)

Does this mean we are back to a pre-Clark understanding that "attached to the gun in any manner" is now loaded?

What I find interesting about the 12031 issue in this decision is they do not rely on the fact that Flores is a felon. They basically decided that Heller does not apply because CA law is not as strict as DC's law was...that there are so many exemptions to 12031 in the law that Heller does not apply.

They don't even begin to address the differences between "keep" and "bear". Dicta be damned...

We need Nordyke.

jamesob
12-20-2008, 11:36 PM
speaking of incorporation, why hasn't it happened yet?

bulgron
12-20-2008, 11:38 PM
What's happening here is the same thing that has happened since Miller. Basically, the courts don't like the 2A, so they bend over backwards to find ways to not uphold the 2A. For rights that they do like (like "the right to privacy means you can have an abortion"), they go out of their way to find a way to declare laws limiting abortion unconstitutional.

Left unchecked, the courts will use the very limited conditions in Heller to restrict our right to arms until there is, finally, no right to arms.

We have got to get back to SCOTUS and get a decision that has some actual teeth, and that actually describes the boundaries of the 2A. That is, if SCOTUS is willing to give us that decision.

nobody_special
12-20-2008, 11:42 PM
We need Nordyke.
That, and strict scrutiny. Hopefully the federal courts will do better, but I'm getting worried.

FreedomIsNotFree
12-20-2008, 11:42 PM
speaking of incorporation, why hasn't it happened yet?

Do a search for "Nordyke"...you have quite a bit of reading to do.

hoffmang
12-21-2008, 12:37 AM
Does this mean we are back to a pre-Clark understanding that "attached to the gun in any manner" is now loaded?


I doubt there is any Clark issues to this case. I'd bet the firearm had a round chambered so was loaded under any definition.

We'll be much better on these things post Nordyke and in Federal Court without criminals as the poster children.

If this court was being honest about reviewing Heller it would have ruled that "felon in possession" was enough to convict this guy on firearms charges and the rest of the analysis was unnecessary as applied to a felon or certain types of violent misdemeanant in possession.

-Gene

CCWFacts
12-21-2008, 12:49 AM
We'll be much better on these things post Nordyke and in Federal Court without criminals as the poster children.

Yes, it seems like a sure disaster if we have criminals and public defenders making these claims.

Also Federal court seems like it takes a very different view of things than these state-level courts.

Mulay El Raisuli
12-21-2008, 6:07 AM
We need the criminals to stop trying to use OUR rights to win thier legal battles. ;)


The problem is that there's just no way to do this. That's just the way it is. Criminals are going to do whatever they can to avoid going to the House of Many Doors. That doesn't mean that they, or their lawyers are going to do a good job of it. That being reality, our response should be to alter our game plan.

These cases establish precedent. Answer.com defines legal precedent as:
"A court decision that is cited as an example or analogy to resolve similar questions of law in later cases" (emphasis mine).

Clearly, precedent is made by the first guy to make it in front of the judge. The problem with trying to craft a perfect civil case with a perfect defendant is two-fold.

First, criminal cases take priority. Second, as we've seen here & with Yarbrough, there are already criminal appeals lined up to be heard. The next step for Flores & Yarbrough is the state Supreme Court. They're already at the door, just waiting to be let in. So, there's no way in hell that a fresh civil case can get to our Supreme Court first.

That also being reality, our best approach, not the one we'd like, one that really stinks, but still the BEST approach, is to either have a chat with their lawyers, or take over their defense ourselves so that a PROPER defense of the issue can be made.

Does this mean we could have a gang-banger as our 'poster boy'? Yes, it does. Would you prefer that the poster boy for the defeat of the Second in this state be a gang-banger? Put another way, a gang-banger is going to be the poster boy for the issue. What's left is do we win or do we lose, & which do we prefer to be the case?

Clearly, the state appellate courts hate the Second. From what I see (by going way beyond what is necessary to decide the cases before them), it isn't the defendant that matters to them, its the Second itself. They're trying to screw us. By standing on the sidelines, just a-hopin' that criminals will stay out of this, we just about guarantee that our Supreme Court will rule against us. I say its time to hold our noses, pick the least objectionable defendant we can find & defend him. There's simply no time to do anything else.

The Raisuli

Annie Oakley
12-21-2008, 8:59 AM
Instead, section 12031 is narrowly tailored to reduce the incidence of unlawful public shootings, while at the same time respecting the need for persons to have access to firearms for lawful purposes, including self-defense.

This is just silly. The history of this law has nothing to do with unlawful public shootings.

RomanDad
12-21-2008, 9:37 AM
All,

Another bad California Court of Appeals case. People v. Flores (http://www.courtinfo.ca.gov/opinions/documents/D051215.PDF) is a criminal case where the criminal invoked Heller to attempt to overturn felon in possession, concealed carry, and loaded carry in public.

The first two are probably right, but the ruling on PC 12031 is wrong. Another bad criminal case. At least it's in the State court...

-Gene
This is what I was afraid of... That we would WAIT for incorporation, while others who have never heard of these websites raced to the courthouse and blew it....


We need to start bringing our OWN cases, incorporation or no incorporation...

At least if we lose, we'll know WE LOST it after our best effort rather than having it lost for us by God only knows who....

This is just silly. The history of this law has nothing to do with unlawful public shootings.


Exactly.... Because the Defense Attorney who brought the case probably assumes 12031 has been around since the beginning of time, rather than being passed in 1968 in response to latent racial discrimination. Thats the argument we're at least PREPARED to address....

hoffmang
12-21-2008, 11:51 AM
We need to start bringing our OWN cases, incorporation or no incorporation...

At least if we lose, we'll know WE LOST it after our best effort rather than having it lost for us by God only knows who....


If we bring a civil case right now we'll lose it on incorporation. Nordyke is soon enough and is much better authority than these state court claims that we can wait the short time.

Believe me that The Right People are as worried about timing as everyone here. The anti's just handed us a huge opportunity and you'll be seeing us take advantage of it in .... TWO WEEKS.

But seriously, there will be some very interesting things up our sleeves in 2009.

Remember, this criminal loses this case no matter what sane RKBA we mold in the courts because he's a felon in possession. Felons could be additionally punished for unlicensed and loaded in public in a way that non felons likely can not - at least as to loaded in public.

-Gene

JDay
12-21-2008, 5:20 PM
All,

Another bad California Court of Appeals case. People v. Flores (http://www.courtinfo.ca.gov/opinions/documents/D051215.PDF) is a criminal case where the criminal invoked Heller to attempt to overturn felon in possession, concealed carry, and loaded carry in public.

The first two are probably right, but the ruling on PC 12031 is wrong. Another bad criminal case. At least it's in the State court...

-Gene

Does this even matter since heller hasn't been incorporated?

hoffmang
12-21-2008, 5:23 PM
Does this even matter since heller hasn't been incorporated?

It matters in state court but not a lot. A state court could reasonably have taken the position that the 2A is incorporated and ruled that some parts of this guy's conviction were unconstitutional (namely loaded public carry.) That sort of ruling might happen in Washington State courts, here, not so much.

-Gene

JDay
12-21-2008, 5:30 PM
What's happening here is the same thing that has happened since Miller. Basically, the courts don't like the 2A, so they bend over backwards to find ways to not uphold the 2A. For rights that they do like (like "the right to privacy means you can have an abortion"), they go out of their way to find a way to declare laws limiting abortion unconstitutional.

Left unchecked, the courts will use the very limited conditions in Heller to restrict our right to arms until there is, finally, no right to arms.

We have got to get back to SCOTUS and get a decision that has some actual teeth, and that actually describes the boundaries of the 2A. That is, if SCOTUS is willing to give us that decision.

We need to use the 14th to force SCOTUS into giving the states full rights under the US Constitution.

tiki
12-21-2008, 8:07 PM
In particular, given the exceptions forself-defense (both inside and outside the home), there can be no claim that section 12031in any way precludes the use "of handguns held and used for self-defense in the home."
(Heller, supra, 128 S.Ct. at p. 2822.) Instead, section 12031 is narrowly tailored toreduce the incidence of unlawful public shootings, while at the same time respecting theneed for persons to have access to firearms for lawful purposes, including self-defense.

Hmm. I guess i'll have to go back an read the 2nd Amendment. I must have missed the part that says "in the home".

DDT
12-21-2008, 8:16 PM
Hmm. I guess i'll have to go back an read the 2nd Amendment. I must have missed the part that says "in the home".

No, you missed the part that says, "And neither can state or local government"

That's the bit that's being worked on right now.

The constitution is not an enumeration of individual rights. Nowhere does it say that you have the right to keep and bear arms. The Constitution assumes that individuals are fully endowed with their rights by the creator. The Constitution enumerates what the federal government can do and in some cases proscribes action by the federal and other governments. THIS IS A VERY IMPORTANT DISTINCTION.

Theseus
12-22-2008, 12:32 AM
So where is the argument that the government doesn't have the power to take rights that we did not convey them the rightPOWER to?

That is to say, why can't we take the argument away from the actual specific rights named and instead focus on the fact that since the Constitution didn't give the Government the power to take these inalienable rights they don't have a leg to stand on when trying to take them away?

Quake0
12-22-2008, 1:55 PM
speaking of incorporation, why hasn't it happened yet?


Give it time, we will get it.

ke6guj
12-22-2008, 2:08 PM
Give it time, we will get it.
exactly. the wheels of justice turn slowly. Heller was a 6 year deal. Nordyke has been in the system for nearly 9 years now.

RomanDad
12-23-2008, 1:29 PM
Believe me that The Right People are as worried about timing as everyone here. The anti's just handed us a huge opportunity and you'll be seeing us take advantage of it in .... TWO WEEKS.


-Gene

Dude.... Its christmas.... Im on vacation.... Dont make me start calling people to find out whats up....

hoffmang
12-23-2008, 1:37 PM
Dude.... Its christmas.... Im on vacation.... Dont make me start calling people to find out whats up....

This will not be findable through the usual calls. People wouldn't love me if I wasn't such a tease.

-Gene

bwiese
12-23-2008, 2:06 PM
This will not be findable through the usual calls. People wouldn't love me if I wasn't such a tease.

Backing up Gene here.

artherd
12-23-2008, 2:20 PM
This will not be findable through the usual calls. People wouldn't love me if I wasn't such a tease.

-Gene

;) .

RomanDad
12-23-2008, 3:26 PM
This will not be findable through the usual calls. People wouldn't love me if I wasn't such a tease.

-Gene

Now your just challenging me... ;)

hoffmang
12-23-2008, 3:47 PM
Now your just challenging me... ;)

I sense a wager....

-Gene

bulgron
12-23-2008, 9:43 PM
This will not be findable through the usual calls. People wouldn't love me if I wasn't such a tease.

-Gene

If I promise not to love you, will you stop teasing me and just tell me what's up?

:D

RomanDad
12-23-2008, 9:47 PM
I sense a wager....

-Gene

Sorry... I sent my disposable income to GM/Chrysler.... For the next 119 years.

American_pride
12-23-2008, 10:03 PM
Sorry... I sent my disposable income to GM/Chrysler.... For the next 119 years.


lol. forgot to mention every bank in the US that wrote bad load to people who they knew couldn't pay it back.

Nick the Sniper
12-24-2008, 4:00 PM
We need to use the 14th to force SCOTUS into giving the states full rights under the US Constitution.

I know I'm going to be opening up a can of worms, but it has to be said.

SCOTUS's jurisdiction is properly where it belongs within the District of Columbia, City of Washington, state of Maryland.

There is a reason that some of the Bill of Rights are applicable to the states, and some applicable with restrictions, and some not at all. And that reason is because IT ONLY PERTAINS TO FEDERAL CITIZENS AND THOSE "BORN IN" OR "NATURALIZED" in the United States. NOT these United States of America.

If you don't know what or where the United States is, read the U.S.'s Constitution. (See U.S. Constitution Art. I., section 8., clause 17.)

PLEASE research the history. PLEASE learn what the rules of construction are. PLEASE learn what the rules of interpretation are and PLEASE learn about legislative intent.

If you are "born" in a state of the Union, it is THERE that your "rights" are supreme. The states are superior to the federal government. They created it. Since when does the creator become less than the creatED?

The states "DELEGATED" CERTAIN (NOT ALL) things to the U.S. government. PLEASE find and read the definition of DELEGATED.

All one need do is look to the U.S. Constitution's Tenth Amendment for the facts.

Next look to the factual definition of "federal." It does NOT mean "central." The current definition stating "central" is an intentional falsification. Proof of this can be found in the Noah Websters 1862 to 1863 (I may be off a year or so, it's been some time since I found that fact out, but between 1861 to 1864 definitely) dictionary's when Noah Webster, a wanna-be elitist literally changed the definition overnight.

Also, think about this: Why is it that the federal government hasn't been able to prohibit the states from overturning their medical marijuana laws? Because the states are "sovereign." I.e. All of its Citizens are sovereign and sovereigns make their OWN rules.

You can also look to this in the federal rules of civil procedure, and the Erie Railroad decision, where it is MANDATORY that federal courts are BOUND by state law when adjudicating STATE ISSUES. Just as the state courts are bound by federal law when adjudicating FEDERAL ISSUES.

All state constitutions are restrictions upon GOVERNMENT, NOT grants of rights to the people. The federal constitution is the ONLY constitution (as it relates the this Union of states) that is a "grant" of authority. And THAT authority is LIMITED.

The fourteenth amendment is for those BORN or NATURALIZED in the United States. NOT THESE UNITED STATES OF AMERICA.

If that is understood/comprehended, it takes all the power away from where it SHOULDN'T be and RETURNS it to where it's ALWAYS been. With the People.

It has grown to the leviathan that it has thanks to "belief" (not facts) and the media. If it is allowed for those that are subverting natural rights through these mechanisms to change things by "belief" as opposed to how it is proscribed to be done by the very documents that everyone relies upon for the protection of their natural (not civil) rights, then it can be done at every change in the winds. The "amendment" process was put in place for a reason. The words chosen, were chosen for a reason. Learn them, don't presume to know them, or let some double speaking attorneys (who are not lawyers) talk us out of the facts. Stop following the EVERYBODY KNOWS Code

Here's an example of how important this is: Almost everybody knows that an attorney is a lawyer. Or are they? Mother-IN-Law; Father-IN-Law; Son-IN-Law; Sister-IN-Law; Attorney-IN-fact >>>here's the key<<< Attorney-AT-Law.

Now look up the definition of "at." It means: around; in the vicinity of.

I once had someone start getting upset with me and tell me to stop talking about definitions. I had to stop in disbelief before I fell out on the floor laughing, because "how words are defined" are the lock, stock and trade of the legal industry. EVERYTHING we do today is touched by some form of law, statute, rule, regulation, ordinance, or order, and the ALL depend upon how they are "defined-IN-law."

Start flexing your "natural state's rights" and stop fighting for "federally "granted" civil rights, privileges and immunities.

NiteQwill
12-24-2008, 7:09 PM
oh boy...:dots:

SimpleCountryActuary
12-24-2008, 7:40 PM
Nick is right. Parsing the US Constitution word by word has its limits. One revelation (for some) from Heller was the history of the second amendment. Some founding fathers argued that such a fundamental PRE-EXISTING right such as the right to keep and bear arms would never be attacked by the Federal Goverment. (Excuse me whilst I up-chuck.) It's hard to conceive that anyone at the time could make that argument with a straight face considering the British confiscated the firearms of the citizens of Boston, and never returned them.

The point here is that the same pre-existing right to keep and bear arms should not be outlawed by State constitutions either because ... they are pre-existing and endowed by our Creator.

THERE! Guns and God in one post.

SimpleCountryActuary
12-24-2008, 7:43 PM
I just noticed that I'm a "Junior Member". And I thought I was 401(k) catch-up eligible!

hoffmang
12-24-2008, 8:20 PM
I know I'm going to be opening up a can of worms, but it has to be said.


That was true up until Appomattox and the passage of the Fourteenth Amendment. I'll agree with you that the right to arms and self defense is a natural right, but so was the right to not be lynched by the KKK but surprisingly the States have been pretty poor at the whole protecting individual rights thing.

As such, I'm pretty happy to have the Federal Court system do my dirty work and enforce the RKBA without anyone having to resort to revolt or violence.

-Gene

SimpleCountryActuary
12-25-2008, 8:35 PM
I agree with Gene on his main point. Now that Heller has established a Federal right to keep and bear arms, we should trust the Federal courts to force this on the States as well, either out of:

1. A correct interpretation of the Constitution (again that urge to hurl); or
2. The general rule that $#^& flows downhill, by which I mean the Feds might just take the position that since they have to allow the rkba then why shouldn't the States.

Number 2 above is the reverse application of Semper Fi. Instead of "I got mine, you get yours", it's "I'm stuck and so should you".

Best!

DDT
12-25-2008, 9:31 PM
I'm pretty happy to have the Federal Court system do my dirty work and enforce the RKBA without anyone having to resort to revolt or violence.

I wish people would read and understand this before the silly "civil disobedience" threads start up.

AaronHorrocks
12-26-2008, 8:24 AM
Can any action be taken to deter this kind of misuse of the law?

Since criminals have been misusing and exploiting laws since laws have been invented, I'll have to say no.

delloro
12-27-2008, 2:13 PM
All,

Another bad California Court of Appeals case.... The first two are probably right, but the ruling on PC 12031 is wrong. Another bad criminal case. At least it's in the State court...

-Gene

it's not a bad case, the facts are no problem. it was a criminal with stupid arguments.it doesn't limit heller at all. in fact, the court was careful to make sure it did not.

hoffmang
12-27-2008, 2:16 PM
it's not a bad case, the facts are no problem. it was a criminal with stupid arguments.it doesn't limit heller at all. in fact, the court was careful to make sure it did not.

It was a horrible decision. It doesn't bind Federal courts, but it does now create doubt about whether my own driveway is a place I can carry loaded and/or concealed. Further, how can 12025 (ban on loaded in public) be constitutional?

The criminal should have had 2 firearms charges sustained and one overturned if the Constitutional analysis was honest. Instead the court intentionally misrepresented the core holding of Heller to try to claim you can't bear arms in public which is most certainly not what the Heller majority wrote.

-Gene

delloro
12-27-2008, 2:32 PM
the felon was running from cops with a loaded pistol stuck in his belt.

he said he didn't know the pistol was loaded. the opinion says he didn't have to know.

heller does not protect felons running from cops with loaded pistols. he argued heller protected his right to carry loaded when in a confrontation.

there has never been a right to have a loaded pistol when cops are chasing you. ever.

were you thinking of the 1st circuit case in oakland???? that one has a driveway in the facts.

but not the defendant's driveway....

hoffmang
12-27-2008, 3:03 PM
the felon was running from cops with a loaded pistol stuck in his belt.

he said he didn't know the pistol was loaded. the opinion says he didn't have to know.

heller does not protect felons running from cops with loaded pistols. he argued heller protected his right to carry loaded when in a confrontation.

there has never been a right to have a loaded pistol when cops are chasing you. ever.

I agree with you up to the point about having a loaded pistol. 12031 doesn't just specify that you can't have a loaded pistol when fleeing the police or a felon - it says no one can have a loaded pistol in public. This guy could easily have been convicted of felon in possession and concealed w/o a permit, but the loaded weapons charge needs to be based on being prohibited - which it is not. Lack of knowledge of whether the gun was loaded really doesn't enter.

were you thinking of the 1st circuit case in oakland???? that one has a driveway in the facts.

but not the defendant's driveway....
Yes - I was making this mental mistake. I do know that that case doesn't specify "your own" but it does cloud the issue. That also explains my strength of comment above. I had the cases backwards. This one is poor, not terrible like the 1st circuit case.

This is what is wrong:

Finally, Heller does not require reversal of Flores's conviction under section 12031 for carrying a loaded firearm in a public place. (§ 12031, subd. (a)(1).) Although Heller does not explicitly discuss such a prohibition, we believe section 12031 is so far removed from the blanket restrictions at issue in Heller that its constitutional validity remains undisturbed by the Supreme Court's opinion.

Section 12031 prohibits a person from "carr[ying] a loaded firearm on his or her person . . . while in any public place or on any public street." (§ 12031, subd. (a)(1).) The statute contains numerous exceptions. There are exceptions for security guards (id., subd. (d)), police officers and retired police officers (id., subd. (b)(1) & (2)), private investigators (id., subd. (d)(3)), members of the military (id., subd. (b)(4)), hunters (id., subd. (i)), target shooters (id., subd. (b)(5)), persons engaged in "lawful business" who possess a loaded firearm on business premises and persons who possess a loaded firearm on their own private property (id., subd. (h)). A person otherwise authorized to carry a firearm is also permitted to carry a loaded firearm in a public place if the person "reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property." (Id., subd. (j)(1).) Another exception is made for a person who "reasonably believes that he or she is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person or persons who has or have been found to pose a threat to his or her life or safety." (Id., subd. (j)(2).) Finally, the statute makes clear that "[n]othing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite." (Id., subd. (l).)

This wealth of exceptions creates a stark contrast between section 12031 and the District of Columbia statutes at issue in Heller. In particular, given the exceptions for self-defense (both inside and outside the home), there can be no claim that section 12031 in any way precludes the use "of handguns held and used for self-defense in the home." (Heller, supra, 128 S.Ct. at p. 2822.) Instead, section 12031 is narrowly tailored to reduce the incidence of unlawful public shootings, while at the same time respecting the need for persons to have access to firearms for lawful purposes, including self-defense. (See People v. Foley (1983) 149 Cal.App.3d Supp. 33, 39 ["The primary purpose of the Weapons Control Law is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded weapons"].) Consequently, section 12031 does not burden the core Second Amendment right announced in Heller —
" 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home'" — to any significant degree.5 (Heller, supra, 128 S.Ct. at p. 2831.) We, therefore, conclude that Heller does not require reversal of Flores's section 12031conviction.

Which is a really prolonged effort at intentionally and malevolently ignoring the word "bear" in both Heller and the Second Amendment...

-Gene

GuyW
12-27-2008, 4:03 PM
the District of Columbia, City of Washington, state of Maryland.

...PLEASE research....PLEASE learn....

You think Washington DC is in the State of Maryland??
.

GuyW
12-27-2008, 4:06 PM
...it does now create doubt about whether my own driveway is a place I can carry loaded and/or concealed.

The Overturf case already screwed that up....
.

CSDGuy
12-27-2008, 5:20 PM
It was a horrible decision. It doesn't bind Federal courts, but it does now create doubt about whether my own driveway is a place I can carry loaded and/or concealed. Further, how can 12025 (ban on loaded in public) be constitutional?

The criminal should have had 2 firearms charges sustained and one overturned if the Constitutional analysis was honest. Instead the court intentionally misrepresented the core holding of Heller to try to claim you can't bear arms in public which is most certainly not what the Heller majority wrote.

-Gene
Gene: 12031 is the loaded carry ban... 12025 is the CCW ban...
You think Washington DC is in the State of Maryland??

Yep... Washington D.C. is in Maryland and therefore the United States Government is subservient to the State of Maryland... The whole reason why Heller is so important is that since Washington D.C. is a Federal enclave, therefore not part of ANY State, it brought the 2A issue straight into the Federal Court system, instead of going through a state court system first.

When D.C. was first created, it's status as a Federal Enclave was designed specifically to prevent even the POSSIBILITY that D.C. (and therefore the US Government) from coming under the jurisdiction of any State. Otherwise, the "home state" could force Congress to nly meet on certain days, or force the US Government to pay taxes on it's property to the State, or whatever - basically, make the US Government subservient to a State that should be at least somewhat subservient to it...

yellowfin
12-27-2008, 6:24 PM
^ well, tell NY, IL, MA, NJ, and the highly populated areas of this state that. I doubt it has once occurred to Schumer or Feinstein that they don't rule the whole country on behalf of one or two cities in a couple of states.

GuyW
12-27-2008, 6:59 PM
Yep... Washington D.C. is in Maryland
...since Washington D.C. is....not part of ANY State


So, is DC in Maryland, or not? [Hint: not]
.

CSDGuy
12-27-2008, 7:10 PM
So, is DC in Maryland, or not? [Hint: not]
.
I guess you missed the sarcasm... and the whole bit that I added about why DC was created as a Federal Enclave...

Hint below:
Gene: 12031 is the loaded carry ban... 12025 is the CCW ban...

Yep... Washington D.C. is in Maryland and therefore the United States Government is subservient to the State of Maryland... The Sarcasm part. The whole reason why Heller is so important is that since Washington D.C. is a Federal enclave, therefore not part of ANY State, it brought the 2A issue straight into the Federal Court system, instead of going through a state court system first.

When D.C. was first created, it's status as a Federal Enclave was designed specifically to prevent even the POSSIBILITY that D.C. (and therefore the US Government) from coming under the jurisdiction of any State. Otherwise, the "home state" could force Congress to nly meet on certain days, or force the US Government to pay taxes on it's property to the State, or whatever - basically, make the US Government subservient to a State that should be at least somewhat subservient to it...The rest is why...

delloro
12-27-2008, 8:23 PM
Which is a really prolonged effort at intentionally and malevolently ignoring the word "bear" in both Heller and the Second Amendment...

-Gene

do you think this is incorrect, and if so, why?

"In particular, given the exceptions for self-defense (both inside and outside the home), there can be no claim that section 12031 in any way precludes the use "of handguns held and used for self-defense in the home." (Heller, supra, 128 S.Ct. at p. 2822.) Instead, section 12031 is narrowly tailored to reduce the incidence of unlawful public shootings, while at the same time respecting the need for persons to have access to firearms for lawful purposes, including self-defense."

if you think heller went farther than that, that might be why the flores case bothers you. keep in mind that heller was a carefully-planned baby step.

hoffmang
12-27-2008, 9:22 PM
do you think this is incorrect, and if so, why?

"In particular, given the exceptions for self-defense (both inside and outside the home), there can be no claim that section 12031 in any way precludes the use "of handguns held and used for self-defense in the home." (Heller, supra, 128 S.Ct. at p. 2822.) Instead, section 12031 is narrowly tailored to reduce the incidence of unlawful public shootings, while at the same time respecting the need for persons to have access to firearms for lawful purposes, including self-defense."

if you think heller went farther than that, that might be why the flores case bothers you. keep in mind that heller was a carefully-planned baby step.

It is rare that an inferior court is presented with a constitutional right on a clean slate. This was one of those rare times. At no point has a California court interpreted the Second Amendment's impact on 12031. The previous rulings all rely on either the lack of an RKBA in the CA Constitution or the now debunked "militia only" interpretation.

That the court performed the Heller analysis means this court accepts incorporation. Otherwise the court should have said "not applicable" and cite Cruikshank.

Now that the court is interpreting whether loaded carry is part of the 2A, these passages and cases would seem to control:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Com-
plete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—
confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict
with another person.’” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We
think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.

...

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guaran-
tee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment. We look to this because it has always been widely under-
stood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right
granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed . . . .”

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as
protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion
perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced
in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and
bear arms of every description, and not such merely as are used by the militia, shall not be infringed, cur-
tailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rear-
ing up and qualifying a well-regulated militia, so vi-tally necessary to the security of a free State. Our
opinion is, that any law, State or Federal, is repug-nant to the Constitution, and void, which contravenes
this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked
sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colo-
nists, and finally incorporated conspicuously in our own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens
had a right to carry arms openly: “This is the right guar-anteed by the Constitution of the United States, and
which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country,
without any tendency to secret advantages and unmanly assassinations.”

...

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 prohibi-
tion 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”).


So from that and from Nunn I see no way that 12031 is Constitutional.

Also, I was incorrect above. I had said 12025 when I meant 12031.

-Gene

CSDGuy
12-27-2008, 9:28 PM
Also, I was incorrect above. I had said 12025 when I meant 12031.

-Gene
I thought so... ;)

GuyW
12-27-2008, 9:58 PM
I guess you missed the sarcasm...

Yeah - sorry...
.

Nick the Sniper
01-02-2009, 12:57 PM
So, is DC in Maryland, or not? [Hint: not]
.

First, I believe MY statement was that the District of Columbia is within the City of Washington, which is within the state of Maryland. But, are you saying that the designated borders of Washington D.C. is NOT contained within the designated borders of the state of Maryland? (NOTICE I didn't say anything about "political powers" because the ten square miles granted to the federal government were sovereign in nature.

WOW! Then where is it pray tell?

Second, could you please cut and paste from MY post the part where I said Washington D.C. is "subservient" to the state of Maryland?

I said the state's rights are superior as it relates to Citizens of the respective states, as opposed to those federal citizens claiming rights within these respective states.

Third, Washington D.C. was "granted" sovereign powers, so NO it wouldn't be subservient to the state of Maryland. However, as far as "rights" are concerned, as it relates to constitutional (the legislative, judicial, executive) powers goes, the state's Citizens have greater protection within their own respective states than do federal Citizens' protections while they reside in respective states.

The analogy of lynching and the KKK, as it relates to the post, is out of context with the issue. Those types of actions and group activity have nothing to do with governmental powers. So I wont comment on those. My comment is strictly speaking to the issue of WHERE and WHAT is the most effective venue to address the issue of the natural right to self-preservation and the protection of that right. Which is what the right to bear arms provision is about.

SENATE JOINT RESOLUTION NO. 44

INTRODUCED BY STATE SENATOR DON ROGERS

April 13, 1994

Resolved by the Senate and Assembly of the State of California, jointly, That the State of California hereby claims sovereignty under the 10th Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the United States Constitution and that this measure shall serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of its constitutionally delegated powers;

"The United States and the State of California are two separate sovereignties, each dominant in its own sphere."
Redding v. Los Angeles (1947), 81 C.A.2d 888, 185 P.2d 430.

“That there is a citizenship of the United States and citizenship of a state,...”
Tashiro v. Jordan, 201 Cal. 236 (1927).

Thus in [13 Cal.3d 551] determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism -- that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

The ultimate confirmation of our conclusion occurred, finally, when the people adopted article I, section 24, of the California Constitution at the November 1974 election, declaring that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution."
People v. Brisendine, 13 Cal.3d 528
[Crim. No. 16520. Supreme Court of California. February 20, 1975.]

The above quotes of case decisions listed here are extremely limited, and not in full. One has to read them completely to get the full context. Like the "bound together by a fundamental federal law" part. At first reading this limited text one presumes incorrectly that federal law is the ultimate authority. But in context with HOW the federal law came to be, a proper comprehension of the meaning of "delegation" then everything is relevantly relegated.

So sarcasm is easy and fun, but could possibly end up making one an arse out of themselves. Facts are better. That's a great thing about them, they don't cease to exist because someone or group of someones attack them. What's that about the three stages of truth? First, it is ridiculed. Second, it is violently opposed. Third. . . .(yada, yada, yada).

Does it REALLY make sense that SOME but not ALL constitutional RIGHTS are applicable?

Let's COMPLETELY research the causes of the effect before we start with the sarcasm and the rest that goes with it.

Be sure to let me know exactly where the District of Columbia is, if the designated boundaries of Washington D.C. is not located within the designated boundaries of the state of Maryland.

And while you're at it, please explain why you think it is that California (and other states for that matter) can have medical marijuana NON-prohibition laws, when the federal government has explicitly held that under "federal" law it IS prohibited.

Be sure to look up the definition of "delegated," and "granted," and do some reading on the "law of agency."

Nick the Sniper
01-02-2009, 1:11 PM
On another, but related note. An alternative to waiting till someone or a dumb *** criminal brings an issue to get adjudicated, a question, or a series of questions can be raised, when a controversy exists with respect to rights, by way of a Complaint for Declaratory Judgment.

So work on a well-framed question, how rights are effected and then bring the issue into court. I think if the ambiguities are raised for clarification one may be able to get some traction. Then this way at least the issue is not muddied up by a moron.

Nick the Sniper
01-02-2009, 1:34 PM
Since this is a discussion on, among other things, the decision that loaded carry is constitutional, I think that this recent "Evil Santa" incident is a prime opportunity to address some of the problems with that holding.

It was indeed tragic, and not intending to sound impersonal, I don't like that it was at a house. However, I think what can be focused on, because I don't think it would have made a difference, is the response time.

This guy shot nine people, set the house on fire and fled all before law enforcement showed up.

I think this is support for the unreasonableness of the loaded firearm decision, as well as the unloaded open carry requirement.

Is anyone familiar with the average response time for LEOs? Or who collects this information? Dispatch, maybe?

bulgron
01-02-2009, 1:53 PM
The thing about police response time is that they never include in the measurement how long it takes you to find a phone, dial 911, get through to an operator, and tell them where you are and what the problem is.

Compare and contrast to get my loaded gun, and cock the hammer if required.

CSDGuy
01-02-2009, 5:21 PM
My comments inline, in Red... so you can follow my line of thought.
First, I believe MY statement was that the District of Columbia is within the City of Washington, which is within the state of Maryland. But, are you saying that the designated borders of Washington D.C. is NOT contained within the designated borders of the state of Maryland? (NOTICE I didn't say anything about "political powers" because the ten square miles granted to the federal government were sovereign in nature.

WOW! Then where is it pray tell?
The City of Washington is entirely contained within the boundary of the District of Columbia. The District of Columbia borders directly the States of Maryland and Virginia. It was carved out of the State of Maryland. Just for fun, imagine you've flown into the Baltimore-Washington Int'l airport. You want to drive to the Arlington National Cemetary in Virginia. You get on the 295 going South, then you get on to Hwy 50W, then on to 395 South to the 110 North. Guess what? You've driven from Maryland, through DC, and into Virginia. You would have left the State of Maryland when you entered DC. DC Residents do NOT register their cars in Maryland. That alone is clue that DC is NOT part of the State of Maryland.
Second, could you please cut and paste from MY post the part where I said Washington D.C. is "subservient" to the state of Maryland?
It logically follows. If DC is located within a state and is not a sovreign entity unto itself, that state could pass laws that forbid the Federal Government from meeting or take property from the Federal Government by eminent domain. DC was established as a Federal Enclave that is sovereign unto itself and is not a state precisely to prevent this from happening.
I said the state's rights are superior as it relates to Citizens of the respective states, as opposed to those federal citizens claiming rights within these respective states.

Third, Washington D.C. was "granted" sovereign powers, so NO it wouldn't be subservient to the state of Maryland. However, as far as "rights" are concerned, as it relates to constitutional (the legislative, judicial, executive) powers goes, the state's Citizens have greater protection within their own respective states than do federal Citizens' protections while they reside in respective states.
In a sense, that's true. However, the DC residents also have some protections built into the DC Code too, much like the State Citizens have in their State Constitutions.
The analogy of lynching and the KKK, as it relates to the post, is out of context with the issue. Those types of actions and group activity have nothing to do with governmental powers. So I wont comment on those. My comment is strictly speaking to the issue of WHERE and WHAT is the most effective venue to address the issue of the natural right to self-preservation and the protection of that right. Which is what the right to bear arms provision is about.

The above quotes of case decisions listed here are extremely limited, and not in full. One has to read them completely to get the full context. Like the "bound together by a fundamental federal law" part. At first reading this limited text one presumes incorrectly that federal law is the ultimate authority. But in context with HOW the federal law came to be, a proper comprehension of the meaning of "delegation" then everything is relevantly relegated.

So sarcasm is easy and fun, but could possibly end up making one an arse out of themselves. Facts are better. That's a great thing about them, they don't cease to exist because someone or group of someones attack them. What's that about the three stages of truth? First, it is ridiculed. Second, it is violently opposed. Third. . . .(yada, yada, yada).

Does it REALLY make sense that SOME but not ALL constitutional RIGHTS are applicable?

Let's COMPLETELY research the causes of the effect before we start with the sarcasm and the rest that goes with it.

Be sure to let me know exactly where the District of Columbia is, if the designated boundaries of Washington D.C. is not located within the designated boundaries of the state of Maryland.
I did above.
And while you're at it, please explain why you think it is that California (and other states for that matter) can have medical marijuana NON-prohibition laws, when the federal government has explicitly held that under "federal" law it IS prohibited.
Simple. If the States remove marijuana laws from the books doesn't mean that marijuana is suddenly legal. It still isn't under Federal Law. The States don't have to prohibit marijuana at all. They can let the Feds enforce Federal Law in this area.
Be sure to look up the definition of "delegated," and "granted," and do some reading on the "law of agency."

Nick the Sniper
01-04-2009, 2:16 PM
My comments inline, in Red... so you can follow my line of thought. My comments inline, in Blue...so you can follow my line of thought.


The City of Washington is entirely contained within the boundary of the District of Columbia. The District of Columbia borders directly the States of Maryland and Virginia. It was carved out of the State of Maryland. Just for fun, imagine you've flown into the Baltimore-Washington Int'l airport. You want to drive to the Arlington National Cemetary in Virginia. You get on the 295 going South, then you get on to Hwy 50W, then on to 395 South to the 110 North. Guess what? You've driven from Maryland, through DC, and into Virginia. You would have left the State of Maryland when you entered DC. DC Residents do NOT register their cars in Maryland. That alone is clue that DC is NOT part of the State of Maryland.


Okay, In concede in part. Only insofar as Washington being contained "within" the District of Colombia,etc. If you live in California (and I'm presuming you do as this is "Cal(guns)":thumbsup:) you are aware of the various "districts" we have. I.e. Wilshire District, etc. So you can see where I was alluding to. So no dispute there. However, it no less takes away from what I was getting at, as my point is/was both non-political, and political. As to the "physical location" of DC, the District being in Columbia in the state of Maryland. NOT that it is "politically a part" of the state of Maryland for political purposes. As you can glean from the other statements I made as to "sovereign powers."


It logically follows. If DC is located within a state and is not a sovreign entity unto itself, that state could pass laws that forbid the Federal Government from meeting or take property from the Federal Government by eminent domain. DC was established as a Federal Enclave that is sovereign unto itself and is not a state precisely to prevent this from happening.

Agreed "politically" speaking.

In a sense, that's true. However, the DC residents also have some protections built into the DC Code too, much like the State Citizens have in their State Constitutions.


EXACTLY what I'm alluding too (some more). DC citizens, much like the state Citizens have their own state Constitutions, DC citizens have the U.S. Constitution. "The Constitution For the United States," NOT these United States of America. (Mustn't forget the rules of English grammar.)

Simple. If the States remove marijuana laws from the books doesn't mean that marijuana is suddenly legal. It still isn't under Federal Law. The States don't have to prohibit marijuana at all. They can let the Feds enforce Federal Law in this area.

I didn't suggest or say that it would be. The point was/is that, it is because the states ARE sovereign and therefore separate is why they can prohibit or allow medical marijuana provisions irrespective of what the Feds want, because the Feds don't have jurisdiction or authority within the states outside of what was delegate to the Feds BY the states via the U.S. Constitution.

So all that to say, only DC residents are "granted" rights via the 14thAmend within the states in which they "reside." For they are considered "domiciled" in DC from which they're rights derive. (One can have many residences, but only ONE domicile.)

So if everyone is demanding rights under the U.S. Constitution (as opposed to the Constitution where they were born), they are effectively taking the position of being that of a DC citizen "residing" in one or more of the states of the union demanding that their DC rights be recognized within the states in which they reside. Hence "....born or naturalized in the United States." As opposed to "born in [ _insert your state here_ ]."

Most cases in the union are being decided through the 14thAmend, because that's how the issues are being framed and presented to the courts. I posit that there would be significantly different (and favorable) results if everyone disavows any connections to DC (via the 14thAmend, U.S. Constitution, etc.) and frame issues solely from the political status of the state Citizen, as opposed to the fed citizen resident.

Nick the Sniper
01-04-2009, 2:29 PM
The thing about police response time is that they never include in the measurement how long it takes you to find a phone, dial 911, get through to an operator, and tell them where you are and what the problem is.

Compare and contrast to get my loaded gun, and cock the hammer if required.

True, and also my point. As the additional things you've pointed out would be apart of the position taken.

Again, these are things that can/should be framed and presented for declaratory relief. Included with the holdings of "no duty to protect," the best response offered, other than the one needed, could only be, "tough teets deal with it." And that can't very well be said without exposing the fallacy of such a requirement, and out and out exposure to personal injury, could it? Especially when the constitution purports Government to be "instituted for [people's] protection, security, and benefit, and [the people] have the right to alter or reform it when the public good may require."

I believe it'd be better to go in with a challenge in that manner as opposed to waiting for a criminal charge and raising the issue. And raise the issue oneself, as opposed to using a mouthpiece of the judicial system, or an idiot criminal.

CSDGuy
01-04-2009, 4:00 PM
More of my responses in red for you... You do make some good points.
My comments inline, in Blue...so you can follow my line of thought.



Okay, In concede in part. Only insofar as Washington being contained "within" the District of Colombia,etc. If you live in California (and I'm presuming you do as this is "Cal(guns)":thumbsup:) you are aware of the various "districts" we have. I.e. Wilshire District, etc. So you can see where I was alluding to. So no dispute there. However, it no less takes away from what I was getting at, as my point is/was both non-political, and political. As to the "physical location" of DC, the District being in Columbia in the state of Maryland. NOT that it is "politically a part" of the state of Maryland for political purposes. As you can glean from the other statements I made as to "sovereign powers."

Given that all the states are politically created, DC is neither contained by nor is a part of the State of Maryland any more than the State of Rhode Island is a part of either Connecticut or Massachusetts. It is not physically part of Maryland.


Agreed "politically" speaking.



EXACTLY what I'm alluding too (some more). DC citizens, much like the state Citizens have their own state Constitutions, DC citizens have the U.S. Constitution. "The Constitution For the United States," NOT these United States of America. (Mustn't forget the rules of English grammar.)



I didn't suggest or say that it would be. The point was/is that, it is because the states ARE sovereign and therefore separate is why they can prohibit or allow medical marijuana provisions irrespective of what the Feds want, because the Feds don't have jurisdiction or authority within the states outside of what was delegate to the Feds BY the states via the U.S. Constitution.
The states are sovereign but they are not completely so. They were far more autonomous under the Articles of Confederation, which had led to some serious problems. Those led to the adoption of our present Constitution, and a far stronger central government.
So all that to say, only DC residents are "granted" rights via the 14thAmend within the states in which they "reside." For they are considered "domiciled" in DC from which they're rights derive. (One can have many residences, but only ONE domicile.)

So if everyone is demanding rights under the U.S. Constitution (as opposed to the Constitution where they were born), they are effectively taking the position of being that of a DC citizen "residing" in one or more of the states of the union demanding that their DC rights be recognized within the states in which they reside. Hence "....born or naturalized in the United States." As opposed to "born in [ _insert your state here_ ]."
Someone born in Washington, DC is born as a United States Citizen just as someone born in Oregon or Puerto Rico are. Because of the unique status of DC residents NOT being additionally part of any state made the Heller case much easier to decide the 2A as an individual right under the US Constitution as it didn't have to go through a State Court system first. Even if Heller started in Puerto Rico (not a state), it would have had to be decided in the more traditional way.
Most cases in the union are being decided through the 14thAmend, because that's how the issues are being framed and presented to the courts. I posit that there would be significantly different (and favorable) results if everyone disavows any connections to DC (via the 14thAmend, U.S. Constitution, etc.) and frame issues solely from the political status of the state Citizen, as opposed to the fed citizen resident.
Interesting idea, but that would mean that you're trying to establish Federal Constitutional rights within each state by going through each State's Constitution. That is time consuming, costly, and can lead to an inequal application of Federal Constitutional rights from state to state. This is not what was intended by the 14th Amendment.

You have some interesting ideas, but they'd probably work better under the Articles of Confederation than the Constitution. I could be wrong... and I reserve the right to be... ;) but that's how I see it.

CSDGuy
01-04-2009, 4:10 PM
True, and also my point. As the additional things you've pointed out would be apart of the position taken.

Again, these are things that can/should be framed and presented for declaratory relief. Included with the holdings of "no duty to protect," the best response offered, other than the one needed, could only be, "tough teets deal with it." And that can't very well be said without exposing the fallacy of such a requirement, and out and out exposure to personal injury, could it? Especially when the constitution purports Government to be "instituted for [people's] protection, security, and benefit, and [the people] have the right to alter or reform it when the public good may require."

I believe it'd be better to go in with a challenge in that manner as opposed to waiting for a criminal charge and raising the issue. And raise the issue oneself, as opposed to using a mouthpiece of the judicial system, or an idiot criminal.Given that the Government has no duty to protect, and you are ultimately responsible for protecting yourself within the limits of the law you're living under, it's possible that seeking declaratory relief could be effectively result in asking the Government to take care of you from cradle to grave instead of simply seeking relief allowing you to be able to take personal responsibility for protecting yourself in the manner in which you see fit...

Nick the Sniper
01-04-2009, 5:56 PM
More of my responses in red for you... You do make some good points.

You have some interesting ideas, but they'd probably work better under the Articles of Confederation than the Constitution. I could be wrong... and I reserve the right to be... ;) but that's how I see it.

More of my responses in blue for you. And, thanks. I believe we are fundamentally in line and agreement, I just believe you may be (and this may not be a precise adjective, but for the lack of a better one at this time) unfocused a c-nt hair or two.


Given that all the states are politically created, DC is neither contained by nor is a part of the State of Maryland any more than the State of Rhode Island is a part of either Connecticut or Massachusetts. It is not physically part of Maryland.

True, and agreed. And if we get "factually" accurate they are all fictions. I'm pointing to location as it relates to "where" for the points stated.

The states are sovereign but they are not completely so. They were far more autonomous under the Articles of Confederation, which had led to some serious problems. Those led to the adoption of our present Constitution, and a far stronger central government.

Also true and agree. However, I have to take issue with, and correct me if I'm wrong, the assertion of a all emcompassing "central" government. The Feds were only "central" as it related to the those delegated powers. The etymological and definition of federal established this. FYI (a little bit of historical trivia): Noah Webster, a "wanna-be" elitest falsified the definition (with a few others) of federal between his 1863 and 1864 dictionaries. A bit of research between the popular dictionaries of the time, those in England, and those here in America, show that they all kept the definition of, "joined together by league, compact or contract, usually for national and external affairs only, but maintaining internal independence.

So there are certain "central" powers that were "delegated" and applicable to all states. But none that allowed for the interference or regulation of those naturally born within the interior limits of the individual states.

Someone born in Washington, DC is born as a United States Citizen just as someone born in Oregon or Puerto Rico are. Because of the unique status of DC residents NOT being additionally part of any state made the Heller case much easier to decide the 2A as an individual right under the US Constitution as it didn't have to go through a State Court system first. Even if Heller started in Puerto Rico (not a state), it would have had to be decided in the more traditional way.

Now here is where we "partially" divide. I agree someone born in Washington, DC is a United States citizen, just as someone born in Puerto Rico, but NOT the state of Oregon (unless that Oregonian voluntarily elects to become "subject" to the jurisdiction of the[U] United States and become a citizen thereof by [U]self-declaration.

Interesting idea, but that would mean that you're trying to establish Federal Constitutional rights within each state by going through each State's Constitution. That is time consuming, costly, and can lead to an inequal application of Federal Constitutional rights from state to state. This is not what was intended by the 14th Amendment.

Actually, it means just the OPPOSITE. I'm saying abandon trying to "establish Federal Constitutional rights within each state, and stand upon (not under) state's rights as a "state" Citizen, as opposed to standing "under" federal rights "within" states of the union. That's essentially what everyone is doing. A la "I'm a federal citizen within your state, and we have to right to do so-and-so, and your denial of this within your state is un-U.S.-constitutional.

That's what's going on right now. You are aware that there are five (5) federal so-called "rights" that are NOT recognized in the union of states, right? AND There is ALREADY unequal application of federal Constitutional rights. One of which is the very issue of CalGuns.net. I.e. the 2d Amend.

The intent of the 14Amend was to "grant" rights to a class of "persons" (a legal fiction) who were not "recognized in the eyes of the law." And when they were, they were "colorable." Hence the term "colored." The "rule" of interpretation is "legislativeintent It does NOT change until EXPRESSLY done so. The intent of the 14thAmend has not been expressly changed since its adoption. Want proof? Read 42 U.S.C. 1981(a). That section states "equal rights (and here's the key part) generally."

"Upon introducing the provisions which eventually became 18 U.S.C 242, its sponsor, Senator Stewart, explicitly stated that the bill protected all 'persons.' He noted that the bill 'simply extends to foreigners, not citizens, the protection of our laws." He added:
This bill extends [the equal protection of the laws] to aliens, so that all persons who are in the United States shall have equal protection of our laws..." United States v. Otherson 489 F.Supp 1369

The class of persons that it applied to no longer exist, but the application of the amendment now operates by voluntary self-designation. Everyone has the right to elect whatever status they want.

"Rights under our system of law and procedure do not rest in the discretionary authority of any officer, judicial or otherwise." In re Hollon Parker, Petitioner, 131 U.S. 221 (1889).

An excellent read on this is Government by Judiciary: The Transformation of the 14th Amendment, by Rauol Berger. (You can find it free on the web.)

In law, words can be define as the definer wishes them to be. Under federal law, "rights" are necessarily "defined." Because the federal powers and duties were "granted." The U.S. Constitution is the ONLY constitution that is a "grant" of powers and duties, all the states are "restrictions." "The California Constitution, like other state constitutions, is generally a restriction upon the powers of the state." Summary of California Law, vol 7, Constitutional Law, p. 9

Meaning that everything the feds do has to be legislated into existence (if not already authorized by the U.S. Constitution, of course), and can only come within the bounds of its authority.

"A 'civil' right is a right given and protected by law, and a person's enjoyment thereof is regulated entirely by law that creates it. Nickell v. Rosenfield (1927) 82 CA 369, 375" Civiliter Mortuus

So in logical order, if the people created the state government, then the state government had to be authorized to create the federal government. U.S. Constitution, 10thAmend.. So how then does the created become greater than the creator? I would NEVER grant something "I" created authority over me at any time for any reason. So is it reasonable to believe that it is any different now?

"Powers denied are not to be implied; they are to be obtained, if at all, from and in the same manner provided by, those who originally granted the enumerated powers, but who at the same time denied powers." Based on Barrons v. Baltimore 7 Peters 243; and Fairbanks v. United States 181 U.S. 283

Citizenship of the United States does not entitle citizen to privileges and immunities of citizen of state, since privileges and immunities of one are not the same as the other. Tashiro v. Jordan, 201 Cal. 236 (1927) (Supreme Court of California)

Nick the Sniper
01-04-2009, 6:06 PM
Given that the Government has no duty to protect, and you are ultimately responsible for protecting yourself within the limits of the law you're living under, it's possible that seeking declaratory relief could be effectively result in asking the Government to take care of you from cradle to grave instead of simply seeking relief allowing you to be able to take personal responsibility for protecting yourself in the manner in which you see fit...

Well, that's not the function of Declaratory Relief. It's function is to pose a question to the courts, that is of controversy between two parties of rights, duties and obligations, in which the dispute can be addressed between parties without resulting to a suit resulting in damages against either party.

Example: if the dispute is, relatively speaking, the right to concealed carry loaded under the circumstances of governments lack of a duty to protect, average response time should they volunteer to do so (and yes they are (in the eyes of the law) considered to be doing just that, "volunteering to protect), and the time it takes to load a weapon in response to an actual threat; and the opposition believes you have no right to do so. The opposing party would be responsible for bringing their side's dispute to the table.

The court would then have to adjudicate under the dispute brought forward what's the justification for the dispute, and if either party has the authority, or right to cause the other problems over the dispute.

Kid Stanislaus
01-04-2009, 8:13 PM
We need the criminals to stop trying to use OUR rights to win thier legal battles. ;)

If the right laws are passed we ALL become criminals.

FreedomIsNotFree
01-04-2009, 9:46 PM
All the blue and red text is making me dizzy. It'd be easier to read if you use the quote tag.

GuyW
01-04-2009, 10:00 PM
All the blue and red text is making me dizzy.

The scent of psuedo-legal Constitutional analysis by a guy who thinks DC is in Maryland is making me dizzy....
.

hoffmang
01-04-2009, 10:07 PM
Nick,

You're 14th Amendment analysis is not very accurate. It's quite clear that the 14th Amendment was meant to apply the constitution and the first 8 BOR freedoms to all over 18 in states that are legal members of the United States.

I suggest this paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963487) for further reading.

-Gene

Nick the Sniper
01-05-2009, 12:16 AM
The scent of psuedo-legal Constitutional analysis by a guy who thinks DC is in Maryland is making me dizzy....
.

Apparently you need to read every word, as opposed to glancing through as if you can speed read with some comprehension.

Then you need to do some actual historical research from the beginning as opposed along the way, before you can speak where your opinion of psuedo-whatever will actually give me a reason to engage you in some actual meaningful dialog.

DDT
01-05-2009, 12:17 AM
Apparently you need to read every word, as opposed to glancing through as if you can speed read with some comprehension.

Then you need to do some actual historical research from the beginning as opposed along the way, before you can speak where your opinion of psuedo-whatever will actually give me a reason to engage you in some actual meaningful dialog.

DC is part of Maryland just like West Virginia is part of Virginia.

hoffmang
01-05-2009, 12:23 AM
Apparently you need to read every word, as opposed to glancing through as if you can speed read with some comprehension.

Then you need to do some actual historical research from the beginning as opposed along the way, before you can speak where your opinion of psuedo-whatever will actually give me a reason to engage you in some actual meaningful dialog.

It used to be Maryland, but in ratifying the Constitution Maryland seeded sovereignty. You can tell because a Maryland State Trooper can't write a valid speeding ticket on Pennsylvania Avenue and residents of DC can't buy and take possession of a firearm in Maryland.

-Gene

bulgron
01-05-2009, 12:40 AM
You can tell because ... residents of DC can't buy and take possession of a firearm in Maryland.

-Gene

Well, not yet, anyway. :D

Nick the Sniper
01-05-2009, 12:44 AM
Nick,

You're 14th Amendment analysis is not very accurate. It's quite clear that the 14th Amendment was meant to apply the constitution and the first 8 BOR freedoms to all over 18 in states that are legal members of the United States.

I suggest this paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963487) for further reading.

-Gene

Where did I say it wasn't to be applicable to the all the states of the union? Most people only read information well after the fact. Additionally, most are unaware of the rules of construction and the rules of interpretation that the courts follow when rendering their decisions.

How issues are framed determine how the court decides. Reading the debates of the Reconstruction Amendments of the 13th, 14th, and 15th Amendments, and again, a book entitled: Government by Judiciary: The Transformation of the 14th Amendment; and also a book called Congress vs. The Supreme Court, are excellent reads.

There are many more, but those are highly regarded, for an accurate "analysis" of the 14th Amendment and its origin, development, and application.

Understand, I realize that most want to whole-heartedly embrace the 14th for their beliefs, and that's fine. I'll even take a shot or two. But, in the end, with dome descent amount of time invested, you'll discover the "facts." I'm not talking from opinion, I'm speaking from hundreds upon hundreds of case decisions, the congressional debates and records surrounding it and the development of this union of states.

I find it interesting that no one finds it odd, that five (5), count them - 5 - of the amendments from the U.S. Constitution are TOTALLY, not applicable within the states, but still insist that the U.S. Constitution is the be all end all. If it IS the "supreme law of the land," wouldn't the WHOLE constitution be applicable to EVERY state in the union? Somebody just explain that one (with some FACTS please).

If nothing else, those who disagree and/or feel I'm off point, do yourselves a favor and read Government by Judiciary and the Congressional Debates on the 14thAmend and I guarantee you'll change your tune. Notwithstanding those that have cognitive dissonance in defense of a belief they've obviously would have to save face on.

Here's another tidbit (and question) for Mr. Pseudo, and again, I'm presuming that you're in Calif. If the U.S. Constitution is the supreme law of the land, I'm also presuming that you would believe that the right to trial by jury has always been applicable here in Calif., right? WRONG.

"As far as federal due process is concerned, the right to trial by jury in state trials only dates from May 20, 1968, the date of the decisions of Duncan v. Louisiana. Bloom v. Illinois, and Dyke v. Taylor Implement Co. J. F., In re (1969) 268 CA2d 761, 74 Cal.Rptr. 464" Cal.Jur sec. 7 Declaration of Rights

Uhhh, the above is a verbatim quote (as is all the other references that I cite in earlier posts).


I've read that paper. But those points have been espoused by many of judicial activist who's goal was to be able to ignore the established rules of interpretation and use the 14th Amendment as a proverbial rubberband, so that judges can freely interpret any situation they chose and get around the limitations of the constitution. Bingham was well known for that. But if you read the rules of interpretation, then read the Congressional Debates ( and don't think ANY modern analysis is going to be the ACTUAL congressional debates that instituted the 14th Amend.

That's akin to us here on this forum, discussing how we would adopt a change of view and someone coming along decades later, after we've established our rules for our institution of our measures, trying to say it's different.

Nick the Sniper
01-05-2009, 12:57 AM
DC is part of Maryland just like West Virginia is part of Virginia.

I refer you to the dialog between CSDGuy and myself, but that's not accurate.

Nick the Sniper
01-05-2009, 1:01 AM
Okay, my posts about DC is being taken out of the context I placed it in. The point of that reference was that DC IS the United States, and NOT these united States of America. And being that each state is sovereign, and the United States being sovereign, it is more advantages to flex one's "state's" rights as opposed to claiming to be a citizen of the United States, as a opposed to a Citizen of one of these united States.

hoffmang
01-05-2009, 1:03 AM
I find it interesting that no one finds it odd, that five (5), count them - 5 - of the amendments from the U.S. Constitution are TOTALLY, not applicable within the states, but still insist that the U.S. Constitution is the be all end all. If it IS the "supreme law of the land," wouldn't the WHOLE constitution be applicable to EVERY state in the union? Somebody just explain that one (with some FACTS please).


Let me turn that right around on you. Of the 8 individual rights only 2 haven't (yet) been fully applied (2A and 7A.) The vast majority of 5A has been applied. After 2A is applied this year, only 7A and the grand jury clause of 5A will not have been applied. For the application of the 3rd amendment please see Engblom v. Carey (http://en.wikipedia.org/wiki/Engblom_v._Carey).

Now, to undercut most of the rest of your argument - have you every noticed how precisely similar the language in the 14A is to the language in Scott v. Sandford (http://supreme.justia.com/us/60/393/case.html) (aka Dred Scott)?

-Gene

DDT
01-05-2009, 1:17 AM
the 14th clearly protected citizens from the individual States by compelling the States to not "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

While the last clause, "equal protection" is most oft cited portion of the amendment there is not supremacy given it in the amendment. The first portion guaranteeing all citizens their federally recognized "privileges and immunities" would not be infringed by the states is no less important. Now, granted "privileges and immunities" do not specifically include "natural rights" or rights not given to the government. I believe that the second amendment is an immunity from infringement. This surely means that the States have no authority to limit our right to keep and bear arms to any greater extent than the federal gov.

Even your posted case Duncan v. Louisiana was specifically an incorporation case and reading Black's concurrence should convince you of that. We are simply looking to get the same kind of protection within the State wrt the RKBA that the constitution recognizes. Just as Duncan was looking to get the same rights to a jury in his State that the constitution guarantees.

No one said that incorporation via the 14th amendment was automatically extended in every case. It has to be adjudicated and that is exactly what we are doing here.

Is there any guarantee of gaining incorporation of the second amendment through Nordyke? No. Never any guarantees. I, and many very close to the case, are confident that it will ultimately be ruled in favor of incorporation.

My greatest hope is that there will be some "Nicky the Sniper" on some forum in 50 years who posts the same "facts" decrying to people don't assume you'll get XYZ rights in this lawsuit, after all you don't know it but here in California you didn't even have the Right to Keep and Bear Arms until 50 years ago.

DDT
01-05-2009, 1:21 AM
I refer you to the dialog between CSDGuy and myself, but that's not accurate.

Actually it is completely accurate. DC was carved out of extant Maryland to create a new District for the purpose of specifically creating an area that did not have to acknowledge the laws of any State. West Virginia was carved out of extant Virginia to create a union State that would not have to acknowledge the laws of any Confederate State.

GuyW
01-05-2009, 1:30 AM
....But those points have been espoused by many of judicial activist who's goal was to be able to ignore the established rules of interpretation


Uh oh - where have I read those phrases before on CalGuns??

.

hoffmang
01-05-2009, 1:35 AM
Now, granted "privileges and immunities" do not specifically include "natural rights" or rights not given to the government.

Actually, the whole point of Privileges and Immunities was to use the language of Scott v. Stanford to make sure it was clear that that ruling which is in many ways a son of Barron v Baltimore was being overturned and that the individual rights found throughout the constitution would be applied to everyone who had obtained citizenship by birth or naturalization.

Let me quote Alan Gura at length from his motion for summary judgment (http://www.chicagoguncase.com/wp-content/uploads/2008/08/chicago_summary_judgment_brief.pdf) in Chicago:


The right to keep and bear arms is among the privileges and immunities of United States citizenship which the states are forbidden from abridging. Indeed, the Fourteenth Amendment was intended and originally understood to stop the states’ abridgement of the right to keep and bear arms. The Fourteenth Amendment’s Privileges and Immunities Clause may have been
given a wrong, parsimoniously narrow interpretation by the Supreme Court in The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), but Second Amendment incorporation through that provision remains the most logical course of action. Considering the widely held view that the current Privileges or Immunities Clause jurisprudence is incorrect, and the recent suggestion by an Associate Justice of the Supreme Court that this doctrine be revisited, plaintiffs would in good faith urge that this precedent be reconsidered to better honor the original intent, meaning, and plain text of the Fourteenth Amendment.

Yet other precedent requires entry of judgment for plaintiffs. However Slaughter-House hampers incorporation through the Privileges or Immunities Clause, the Supreme Court’s well established doctrine of selective incorporation through the Fourteenth Amendment’s Due Process Clause mandates that the City of Chicago respect its residents’ Second Amendment rights.

...

I. THE RIGHT TO ARMS SECURED BY THE SECOND AMENDMENT IS A PRIVILEGE OR IMMUNITY WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT, WHICH THE STATES SHALL NOT ABRIDGE.

The Fourteenth Amendment provides, in pertinent part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. amend. XIV, sec. 1, cl. 2. The Fourteenth Amendment Privileges or Immunities Clause was originally intended and understood to incorporate the Bill of Rights – including, specifically, the Second Amendment – as against the states. It should be given this effect today.

Plaintiffs acknowledge that this argument is foreclosed in this Court by The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), holding that the Privileges or Immunities Clause guarantees only rights that flow from the existence of United States citizenship, such as the rights to diplomatic protection abroad or to access the navigable waterways of the United States. Slaughter-House may be binding law, but “‘everyone’ agrees the Court [has] incorrectly interpreted the Privileges or Immunities Clause.” Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 Chi. Kent L. Rev. 627 (1994); see also Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1121, 1297 n. 247 (1995) (“[T]he Slaughter-House Cases incorrectly gutted the Privileges or Immunities Clause”); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1258-59 (1992). “Legal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.” Saenz v. Roe, 526 U.S. 489, 523 n.1 (1999) (Thomas, J. dissenting) (citations omitted). Indeed, Justice Thomas, joined by Chief Justice Rehnquist, declared that he “would be open to reevaluating [the Privileges or Immunities Clause’s] meaning in an appropriate case.” Saenz, 526 U.S. at 528 (Thomas, J., dissenting).1 This is an appropriate such case, considering that no modern court has considered the interplay between the Second Amendment, properly understood, and the Fourteenth Amendment.

Before the Civil War, the Supreme Court held that states were not bound by the Bill of Rights. Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Barron proved intolerable during Reconstruction. With recalcitrant southern states actively oppressing Americans just freed from slavery, Congress saw the need to constitutionally define American citizenship and imbue that citizenship with meaningful federal protection. Thus the Fourteenth Amendment’s first section was designed to overrule two Supreme Court precedents. The first clause dispensed with Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which held that people of African descent could not be American citizens or citizens of American states. The Privileges or Immunities Clause was aimed squarely at overruling Barron.

“[I]n drafting section one,” Fourteenth Amendment author Rep. John Bingham looked to Barron itself for guidance. Within the words of Chief Justice John Marshall he found clear instructions: “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.”

Michael Anthony Lawrence, Second Amendment Incorporation Through the Privileges or Immunities and Due Process Clauses, 72 Mo. Law. R. 1, 18 (2007) (hereafter “Lawrence”) (quoting Cong. Globe, 42d Cong., 1 Sess. 84 App. (1871); Barron, 32 U.S. at 250). The opening words of the Privileges or Immunities Clause thus imitate directly the command of Article I, Section 10 referenced by Barron: “No state shall.” Bingham made explicit that Barron’s suggestion was followed in order to bind the states. Id., at 18-19 and citations therein.

As for the privileges and immunities that “no state shall . . . abridge,” these included, at a minimum, the Bill of Rights. “Congress in 1866 understood perfectly well that section one was intended to repudiate Barron. ‘Over and over [John Bingham] described the privileges-or-immunities clause as encompassing ‘the bill of rights’ – a phrase he used more than a dozen times in a key speech . . .’” Lawrence, 72 Mo. L. Rev. at 19 (quoting Akhil Reed Amar, THE BILL OF RIGHTS 182 (1998) (hereafter “Amar”). The Fourteenth Amendment’s Senate sponsor, Senator Jacob Howard, explained the Privileges or Immunities Clause’s incorporating scope:

To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal right guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, . . . and the right to keep and to bear arms . . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

Cong. Globe, 39 Cong., 1 Sess. 2765-66 (1866) (emphasis added).

These and numerous other widely-reported congressional comments expressing the Fourteenth Amendment’s repudiation of Barron were unopposed. Amar, at 186-87. Indeed, the Fourteenth Amendment’s southern opponents understood that the Privileges or Immunities Clause incorporated the Bill of Rights, as did those who promoted the Fourteenth Amendment’s ratification among the states. See discussion in Lawrence, at 22-27. And arguably, the right to keep and bear arms was the right whose incorporation was most urgently desired. “With respect to the proposed [Fourteenth] Amendment, Senator Pomeroy described as one of the three
“indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Heller, 128 S. Ct. at 2811 (citing Cong. Globe, 39 Cong., 1 Sess., 1182 (1866)).

Accordingly, until Slaughter-House, it was perfectly understood by fans and foes of the Fourteenth Amendment alike that the Privileges or Immunities Clause incorporates the entire Bill of Rights as against the states – including the Second Amendment. For purposes of this motion, it suffices to note that Slaughter-House’s evisceration of the Privileges or Immunities Clause was wrong the day it was decided and remains wrong today.
Emphasis mine.

-Gene

hoffmang
01-05-2009, 1:37 AM
Uh oh - where have I read those phrases before on CalGuns??

Sounds a lot like Jagger/Jim/J. Aldrige/P.A. Madison, and webmaster@idexer.com doesn't it.

-Gene

DDT
01-05-2009, 1:45 AM
Thanks for the clarification Gene. I had no reason to believe that the "rights" in the 2nd did not fall under "privileges and immunities" but it's good to know the history.

Now, what are the chances that the courts will say that AWBs, may-issue, etc. are not infringements on our "Right to Keep and Bear Arms" any more that outlawing slander, "fighting words" etc. are not infringing our right to free speech? (I think this would be Justice Breyer's opinion, as stated in his dissent in Heller)

hoffmang
01-05-2009, 10:50 AM
Now, what are the chances that the courts will say that AWBs, may-issue, etc. are not infringements on our "Right to Keep and Bear Arms" any more that outlawing slander, "fighting words" etc. are not infringing our right to free speech? (I think this would be Justice Breyer's opinion, as stated in his dissent in Heller)

With the current SCOTUS makeup, we have 5 votes that do not agree with Breyer.

-Gene

DDT
01-05-2009, 12:23 PM
Better make it quick.

Nick the Sniper
01-05-2009, 10:57 PM
the 14th clearly protected citizens from the individual States by compelling the States to not "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

While the last clause, "equal protection" is most oft cited portion of the amendment there is not supremacy given it in the amendment. The first portion guaranteeing all citizens their federally recognized "privileges and immunities" would not be infringed by the states is no less important. Now, granted "privileges and immunities" do not specifically include "natural rights" or rights not given to the government. I believe that the second amendment is an immunity from infringement. This surely means that the States have no authority to limit our right to keep and bear arms to any greater extent than the federal gov.

Even your posted case Duncan v. Louisiana was specifically an incorporation case and reading Black's concurrence should convince you of that. We are simply looking to get the same kind of protection within the State wrt the RKBA that the constitution recognizes. Just as Duncan was looking to get the same rights to a jury in his State that the constitution guarantees.

No one said that incorporation via the 14th amendment was automatically extended in every case. It has to be adjudicated and that is exactly what we are doing here.

Is there any guarantee of gaining incorporation of the second amendment through Nordyke? No. Never any guarantees. I, and many very close to the case, are confident that it will ultimately be ruled in favor of incorporation.

My greatest hope is that there will be some "Nicky the Sniper" on some forum in 50 years who posts the same "facts" decrying to people

LOL!!! Comedy. All that's been posted has been facts (which I haven't seen any rebuttals, outside of a couple of snickering). Ha!

However, I agree with what you're saying, insofar as it relates to federal citizens. And you're really making my point for me. Especially with the following that you've said:

I believe that the second amendment is an immunity from infringement. This surely means that the States have no authority to limit our right to keep and bear arms to any greater extent than the federal gov.

But, no one has really answered my query......Notwithstanding hoffmang's "back at'cha" Why is it that we would have to "fight" to get "rights" incorporated in the states where we were all born and raised? And why doesn't that strike anyone as peculiar?

Your statement indirectly answers the question. Because it is being fought from the United States (DC) and not from the state.

Also, although your statement with respect to "privileges and immunities do not . . . " you seem to be forgetting that the Declaration of Independence is the foundation of the Constitutions. When legal documents are drafted, they are not drafted to be redundant. And IT incorporates natural rights. Hence, the right to "life, liberty, and property." That necessarily encompasses ALL things related to those things.

Nick the Sniper
01-05-2009, 11:05 PM
Let me turn that right around on you. Of the 8 individual rights only 2 haven't (yet) been fully applied (2A and 7A.) The vast majority of 5A has been applied. After 2A is applied this year, only 7A and the grand jury clause of 5A will not have been applied. For the application of the 3rd amendment please see Engblom v. Carey (http://en.wikipedia.org/wiki/Engblom_v._Carey).

Now, to undercut most of the rest of your argument - have you every noticed how precisely similar the language in the 14A is to the language in Scott v. Sandford (http://supreme.justia.com/us/60/393/case.html) (aka Dred Scott)?

-Gene

I'll have to brief that case and get back with you on it as I'm not familiar with it and not competent to speak on it.

As far as "undercutting" the rest of my "argument" as you call it. Of course it's similar. As I have to keep reminding, "LEGISLATIVE INTENT" RULES. Unless it has been EXPRESSLY CHANGED FROM THE LEGISLATIVE INTENT, the intent still applies. If it was any different, 42 U.S.C. 1981 would have been amended to reflect the change, because it would no longer be necessary.

So unless you can produce the "legislative" (not judicial because justices are "constitutionally" prohibited from making law), then all you're doing is expressing your opinion (which you're entitled to do, of course, and I'd whip some ***** for your right to do so).

Nick the Sniper
01-05-2009, 11:08 PM
Actually it is completely accurate. DC was carved out of extant Maryland to create a new District for the purpose of specifically creating an area that did not have to acknowledge the laws of any State. West Virginia was carved out of extant Virginia to create a union State that would not have to acknowledge the laws of any Confederate State.


Okay, so you're saying it's carved out, but in. Come on now. Once sovereign powers were granted, they became an authority unto themselves. The point of my reference (AGAIN) is that the United States is located there and it is NOT these United States of America. AGAIN giving a reminder to not forget the rules of grammar. It's funny how grammar goes out the window when discussing these things.

DDT
01-05-2009, 11:09 PM
But, no one has really answered my query......Notwithstanding hoffmang's "back at'cha" Why is it that we would have to "fight" to get "rights" incorporated in the states where we were all born and raised? And why doesn't that strike anyone as peculiar?

Your statement indirectly answers the question. Because it is being fought from the United States (DC) and not from the state.

The fact that DC is not a state is a complicating factor but the real reason is a lot sadder.

Let's assume the following
A) we get full incorporation via Nordyke, meaning the states can place limits no greater than the Feds on 2A rights.

B) The new California-based gun-control laws in DC, that even go so far as to use the California roster and AW definitions verbatim, are tossed out.

Therefore

C) The California laws upon which the DC laws are based SHOULD be null and void.

Unfortunately a lawsuit is required to accomplish this. There isn't some sort of automatic feature by which the law are voided. These lawsuits SHOULD be pretty much a slam dunk if A and B are accomplished but they still have to be prepared and filed, this is an expensive endeavor. I think the only way that the State laws would be automatically voided is if the Federal Courts stated that all State limitations on 2A are invalid and that only Federal law applies. I can't possibly see this happening though I've been wrong before.

Nick the Sniper
01-05-2009, 11:14 PM
Uh oh - where have I read those phrases before on CalGuns??

.

Hmmm.......I wonder why? Is it no wonder that everyone's going up before "judges" asking for rights clearly spelled out in the document they're trying to get a "judge" to say "Hey it's okay, go ahead." Or (and the problem everyone's upset about now) "Hey 'shall not be infringed' doesn't mean what it says, it means what WE say it means, now get out of here!"

Come on. How about that one? The right to bear SHALL NOT BE INFRINGED. Oh wait! And my personal favorite: "An unconstitutional law is no law at all, and has no force and effect of law." Yet, here we are...and you doubt "judicial activism?"

Wow!

Nick the Sniper
01-05-2009, 11:15 PM
I must say though, I love the dialog....you guys are a definite pleasure to discuss these things with. It's better when people can communicate with some thought and reason as opposed to people that start talking about a bunch of nonsense and start personally attacking.

Nick the Sniper
01-05-2009, 11:32 PM
The fact that DC is not a state is a complicating factor but the real reason is a lot sadder.

Let's assume the following
A) we get full incorporation via Nordyke, meaning the states can place limits no greater than the Feds on 2A rights.

B) The new California-based gun-control laws in DC, that even go so far as to use the California roster and AW definitions verbatim, are tossed out.

Therefore

C) The California laws upon which the DC laws are based SHOULD be null and void.

Unfortunately a lawsuit is required to accomplish this. There isn't some sort of automatic feature by which the law are voided. These lawsuits SHOULD be pretty much a slam dunk if A and B are accomplished but they still have to be prepared and filed, this is an expensive endeavor. I think the only way that the State laws would be automatically voided is if the Federal Courts stated that all State limitations on 2A are invalid and that only Federal law applies. I can't possibly see this happening though I've been wrong before.

Again, you make my point....The California laws upon which the DC laws are based are ONLY as it pertains to federal citizens.

Case in point. It is the rule in federal jurisdiction that federal courts HAVE TO abide by the laws and decisions of the states, insofar as issues in federal deal with "state" matters. And reciprocally, states are bound by federal laws when they entertain issues that are federal matters.

Like interstate commerce. That is a matter that has been delegated to exclusive federal jurisdiction. Therefore, the state, when entertaining interstate commerce matters are bound by federal decisions and federal law, and if there are any disputes, where does it go from the California Supreme Court? To the U.S. Supreme Court.

Let me put it like this... you have rules in your household, I have rules in my household. When I go to your house, I am bound by your rules, when you come to mine, you are bound by mines and when we are out and about, we are bound by the rule that we agree to being out. Like we both won't get into problems that may cause us both injury. We don't engage in certain activities. And we do it by our agreement (compact). It's the same with the states and fed. You have rules that we agree upon should my family decide to visit there, I have rules should YOUR family decides to visit here.

The U.S. Constitution was constructed BY the states, FOR the fed, and since it was "delegated" certain powers, such as what is going to be the FUNDAMENTAL requirements for any other nation (because that's what states are "nations") if they want to join the league (union).

But, insofar as citizens in THEIR OWN states, the feds have NO authority to say what we do in our own domains. UNLESS we submit to there jurisdiction, outside of those powers "delegated."

hoffmang
01-05-2009, 11:36 PM
As far as "undercutting" the rest of my "argument" as you call it. Of course it's similar. As I have to keep reminding, "LEGISLATIVE INTENT" RULES. Unless it has been EXPRESSLY CHANGED FROM THE LEGISLATIVE INTENT, the intent still applies. If it was any different, 42 U.S.C. 1981 would have been amended to reflect the change, because it would no longer be necessary.


When courts rule in such a way that legislators wish to overturn a court ruling, the best way to do that is to specifically use the language from those bad decisions - and in the case of the 14A - include that language from the wrongly decided court case to make it clear that the reasoning is now null and void as a constitutional matter.

If you want legislative intent then you'll need to read Dave Hardy's recent work (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322323) on the actual in depth contemporaneous coverage of the adoption of the 14th amendment.

You want to know why we're going to courts to get our rights enforced. There are two easy reasons. The whole point of the 14th Amendment was to create minimum federalized individual rights that no state could violate. California violates those minimums not unlike Louisiana. Second, the other option is anarchy. I'll take the courts as a first stop instead.

Marbury makes it clear whether you like the outcome or not. Legislators write laws, but courts get the final word on how they are interpreted. Slaughter House Cases is wrongly decided, but its going to take SCOTUS to overturn its own filthy decision.

-Gene

Nick the Sniper
01-05-2009, 11:47 PM
When courts rule in such a way that legislators wish to overturn a court ruling, the best way to do that is to specifically use the language from those bad decisions - and in the case of the 14A - include that language from the wrongly decided court case to make it clear that the reasoning is now null and void as a constitutional matter.

If you want legislative intent then you'll need to read Dave Hardy's recent work (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322323) on the actual in depth contemporaneous coverage of the adoption of the 14th amendment.

You want to know why we're going to courts to get our rights enforced. There are two easy reasons. The whole point of the 14th Amendment was to create minimum federalized individual rights that no state could violate. California violates those minimums not unlike Louisiana. Second, the other option is anarchy. I'll take the courts as a first stop instead.

Marbury makes it clear whether you like the outcome or not. Legislators write laws, but courts get the final word on how they are interpreted. Slaughter House Cases is wrongly decided, but its going to take SCOTUS to overturn its own filthy decision.

-Gene

No, I have no questions as to why you're going to courts. I'm speaking to the "choice of jurisdiction" I refer you to my "visiting rules" analogy with DDT. There are two classes. Federal, and state. I won't get into Marbury. But, the analogy I give is exactly how it works among the states and the feds.

And as I've already stated, I know the legislative intent, I've read the debates, and everything from that point. The 14thAmend and the Reconstruction era is something I've spent a LOT of time researching, so I'm not talking to be talking.

Nick the Sniper
01-05-2009, 11:56 PM
If anyone is so inclined. This is a good read and gives an overview of what I'm basically raising.



William H. Brennan, Jr., "State Constitutions and the Protection of Individual Rights," Harvard Law Review 90 (January 1977): 503

DDT
01-06-2009, 12:01 AM
Again, you make my point....The California laws upon which the DC laws are based are ONLY as it pertains to federal citizens.

Case in point. It is the rule in federal jurisdiction that federal courts HAVE TO abide by the laws and decisions of the states, insofar as issues in federal deal with "state" matters. And reciprocally, states are bound by federal laws when they entertain issues that are federal matters.

Like interstate commerce. That is a matter that has been delegated to exclusive federal jurisdiction. Therefore, the state, when entertaining interstate commerce matters are bound by federal decisions and federal law, and if there are any disputes, where does it go from the California Supreme Court? To the U.S. Supreme Court.

Let me put it like this... you have rules in your household, I have rules in my household. When I go to your house, I am bound by your rules, when you come to mine, you are bound by mines and when we are out and about, we are bound by the rule that we agree to being out. Like we both won't get into problems that may cause us both injury. We don't engage in certain activities. And we do it by our agreement (compact). It's the same with the states and fed. You have rules that we agree upon should my family decide to visit there, I have rules should YOUR family decides to visit here.

The U.S. Constitution was constructed BY the states, FOR the fed, and since it was "delegated" certain powers, such as what is going to be the FUNDAMENTAL requirements for any other nation (because that's what states are "nations") if they want to join the league (union).

But, insofar as citizens in THEIR OWN states, the feds have NO authority to say what we do in our own domains. UNLESS we submit to there jurisdiction, outside of those powers "delegated."

That is, in fact, the way the courts have viewed the constitution up to the middle of the 19th century. The Civil War, for better or worse, strengthened the Federation and lessened States' Rights. As Gene has pointed out, the 14th amendment has been used to limit State rights to the same rights that the Feds have. Now, you may not like this interpretation but there it is. Essentially, incorporation would make all firearms issues Federal jurisdiction.

Now, if I lived in a Free State I might well take the States' Rights approach but seeing as how in California it is my gun-toting Ox that is being gored I am all for Incorporation wrt to the 2nd amendment.

To use your analogy, you have rules in your house, I have rules in my house. When you're at my house you behave according to my rules, and vise versa. However; there are certain societal norms that both our houses rules must abide. The idea of making the BofR the "societal norms" that States must follow when constructing gun laws is what incorporation of the 2nd amendment accomplishes.



An example. Let's assume we get full incorporation and further; that the courts decide a "cooling-off" period for concealable weapons is a valid law.

Nevada chooses to not have a waiting period for handguns
Michigan a 24 hour waiting period in place
Oregon goes with a 3 day waiting period
California decides on a 180 day waiting period.

Aall of these States have chosen how to deal with the potential community safety issue created by immediate access to handguns.

Some of these laws will be fine and the courts will allow those to stand (if they even get challenged) but I suspect 180 days is so long that is cannot be considered a "cooling-off" period and is clearly an attempt to put onerous requirements in the way of handgun ownershipt.

Now, let's assume that California has a 10 day waiting period. Does this fit the description of a "cooling-off" period or is it simply an infringement for the sake of discouraging firearm ownership? This "gray area" is why each law has to be independently challenged in court.

DDT
01-06-2009, 12:03 AM
The whole point of the 14th Amendment was to create minimum federalized individual rights that no state could violate.

Don't know if you came up with that or if you lifted it but it is an EXCELLENT turn of phrase.

Nick the Sniper
01-06-2009, 12:11 AM
Here is another good one:



Sue Davis, Taunya Lovell Banks, State Constitutions, Freedom of Expression, and Search and Seizure: Prospects for State Court Reincarnation

Here's a quote from within at fn.17: "Justice Handler quoted California's Stanley Mosk: 'It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse." People v. Brisendine 13 Cal.3d 528, 531 P.2d 1099, 1113, quoted at 423 A.2d 615, 626, n.8


Also within (and what I've been saying) at pg. 3: "State high courts may not interpret provisions of the federal Constitution differently from the U.S. Supreme Court. Furthermore, the states may not provide less protection than that required by the federal Constitution as interpreted by the U.S. Supreme Court. State courts this situation would have to rely on federal decisions. State courts may, however, rely on their own state constitution in order to provide protection for individual rights above and beyond the federal requirements. Under the doctrine that the U.S. Supreme Court does not review judgments of state courts that rest on adequate and independent state grounds, such decisions are immune from review by the Supreme Court. Herb v. Pitcairn 324 U.S. 117, 125 (1945)

hoffmang
01-06-2009, 12:18 AM
Nick,

We have two threads going here in a sense. I'm saying to you that the 14A as actually passed had the intent of applying the package of individual rights contained in the Federal Constitution (a set of powers and restrictions granted by the people - not the states) and apply them to the states. You're reference to Brennan confuses me. Brennan actually noted that Madison had proposed a ghost of the future 14th Amendment at the conventions as he thought that it was "the most valuable part" and that the states were "as liable to attack" those key individual rights as the Federal Government. Before ratification of the 14A, the Federal Government was of much more limited powers. Afterwards, the Congress was empowered by Section 5 which they further then used to empower the courts under 1983 et seq.

For political and racist reasons the Supreme Court ruled that the 14A didn't actually overturn Baron and Scott because they didn't like the political outcomes of that holding. Later SCOTUS made up a way to get to what the 14A was supposed to be in the first place.

Now the whole argument that the Federal Government is of limited powers is sadly pretty bogus now. I'm not saying you're wrong that that is how it is supposed to work, but I'm telling you that the wide range of the Commerce Clause makes everything Federal thanks in no small part to the New Deal.

Do you seriously hold that the 14th Amendment was not intended and should not allow Federal Courts to find that state laws that violate enumerated individual rights in the Constitution are null and void?

-Gene

Nick the Sniper
01-06-2009, 12:25 AM
That is, in fact, the way the courts have viewed the constitution up to the middle of the 19th century. The Civil War, for better or worse, strengthened the Federation and lessened States' Rights. As Gene has pointed out, the 14th amendment has been used to limit State rights to the same rights that the Feds have. Now, you may not like this interpretation but there it is. Essentially, incorporation would make all firearms issues Federal jurisdiction.

Now, if I lived in a Free State I might well take the States' Rights approach but seeing as how in California it is my gun-toting Ox that is being gored I am all for Incorporation wrt to the 2nd amendment.

To use your analogy, you have rules in your house, I have rules in my house. When you're at my house you behave according to my rules, and vise versa. However; there are certain societal norms that both our houses rules must abide. The idea of making the BofR the "societal norms" that States must follow when constructing gun laws is what incorporation of the 2nd amendment accomplishes.



An example. Let's assume we get full incorporation and further; that the courts decide a "cooling-off" period for concealable weapons is a valid law.

Nevada chooses to not have a waiting period for handguns
Michigan a 24 hour waiting period in place
Oregon goes with a 3 day waiting period
California decides on a 180 day waiting period.

Aall of these States have chosen how to deal with the potential community safety issue created by immediate access to handguns.

Some of these laws will be fine and the courts will allow those to stand (if they even get challenged) but I suspect 180 days is so long that is cannot be considered a "cooling-off" period and is clearly an attempt to put onerous requirements in the way of handgun ownershipt.

Now, let's assume that California has a 10 day waiting period. Does this fit the description of a "cooling-off" period or is it simply an infringement for the sake of discouraging firearm ownership? This "gray area" is why each law has to be independently challenged in court.

Again, excellent points. But also again, you all are not looking at "why." And the Civil War was followed by what? The Reconstruction period. The Reconstruction period was "reconstructed" to deal with the newly created class of citizenship via the 14th. And due to it, was necessary to define how this new citizenry was to be treated within the states. The rule is so long as the new citizens are not treated in a discriminatory fashion beneath the already existing state citizens, then there was no harm no foul. And if one of the new citizens felt their newly "granted" civil rights were violated by the citizens of the states from wherein they "reside" then they had a cause of action.

It's not about me liking or disliking anything, so much as it is my understanding of the rules and how they are to be interpreted.

The stronger federation was only as so much about as the powers were "delegated exclusively" to the feds.

Don't forget the 10thAmend. DDT...what does delegated mean?

And as far as the seemingly omnipotence of the feds, you know the old saying: Assume the appearance of power and soon people give it to you.

If you could get large groups of people to pay you, let you regulate their lives down to the color socks they wear, would you tell them, "you know you don't have to right? Because I REALLY don't have the power to do what you're allowing me to do.

Well maybe YOU wouldn't, but that doesn't mean others wouldn't.

DDT
01-06-2009, 10:19 AM
It appears that your "points" move about in the sand. I'm happy to discuss this but I am not particularly entertained by being pulled about by the ring in my nose.
While it is enlightening to have ones idea challenged it is not terribly entertaining when the other party is not inclined to do the same.

As for you specific questions, delegated means that those rights and privileges which are not specifically given to the Federal Government are reserved for the States and the people. I think it can be read in fairly plain English. When the 14th was written it was acknowledged that it altered the constitution, thus the reason for an amendment rather than simple legislation. Do you not feel the the 10th is one of the parts of the Constitution that was impacted by the 14th?

GuyW
01-06-2009, 11:36 AM
When legal documents are drafted, they are not drafted to be redundant.

How do you know that? Draft legal documents, do you?
.

Nick the Sniper
01-06-2009, 5:43 PM
It appears that your "points" move about in the sand. I'm happy to discuss this but I am not particularly entertained by being pulled about by the ring in my nose.
While it is enlightening to have ones idea challenged it is not terribly entertaining when the other party is not inclined to do the same.

As for you specific questions, delegated means that those rights and privileges which are not specifically given to the Federal Government are reserved for the States and the people. I think it can be read in fairly plain English. When the 14th was written it was acknowledged that it altered the constitution, thus the reason for an amendment rather than simple legislation. Do you not feel the the 10th is one of the parts of the Constitution that was impacted by the 14th?

Move about in the sand? One who's understanding is limited or focused on one area, when the area is considerably broader may think so.

And it's not about "reading" English considerably well, as much as it is "comprehending" it. Notwithstanding that "law" is both English AND legalese. And therein possibly lies your misconstruing of my "points" as being shifting. There are "rules" to both, and rules when the two are blended. And it is more than apparent that you are either unaware of them or refuse to take them into consideration.

It is not I who on one hand recognizes that there are sovereign states, but who somehow must bow to the omnipotence of their own creation. It's not I who believes that the creators have made their creation to be greater than themselves. Would you? I wouldn't.

Using the analogy of hour visitation of each others domiciles again, your response with respect to "societal" views/needs yada, yada, yada seems to be of a begging for guidance as opposed to a sovereign making his own way. Maybe a reading of the law of nations would help shape your perspective.

And you have yet provided anything rebutting the sources that I've put forward other than the comments of being pulled by the proverbial ring through the nose. To discuss in depth issues that are only superficially known and understood may be the equivalent of shooting in the dark.

Maybe it was my mistake that even with a superficial understanding one's sense of logic and reason could be appealed to.

The quote from Stanley Mosk, one of California's well known legal jurists quoted in one of my above post, as well as my "point" summed up in the quote above it spells out precisely what I've been saying throughout this discussion. And I'll quote it again:

"Justice Handler quoted California's Stanley Mosk: 'It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse." People v. Brisendine 13 Cal.3d 528, 531 P.2d 1099, 1113, quoted at 423 A.2d 615, 626, n.8


Remember when everyone was fed up with Gov. Gray Davis and Californians said ENOUGH! and removed his rear from office? That is the power each Citizen, of their respective states, have to make change if they flex it in the right way. I.e. through the state and ITS constitution. The feds have "their" own, and the states have theirs. To claim rights under the feds is to claim to be a citizen subject to the jurisdiction thereof.

I have posted many authorities showing that there is a distinction between the federal position and the state. It's almost as if everyone thinks that there is ONLY the state and its employees but no citizens, and then there's the feds, its employees, but it has citizens.

The 14th REPEATS provisions. Again, legal documents are not drafted to be redundant. If there is something that seems repetitive, it's not and it has a definite different meaning and application.

All I can say is read the debates, read the history, read the requirements of constitutional law, and the law of nations, and then it'll start making sense as opposed to seeming to "shift."

Nick the Sniper
01-06-2009, 6:07 PM
Nick,

We have two threads going here in a sense. I'm saying to you that the 14A as actually passed had the intent of applying the package of individual rights contained in the Federal Constitution (a set of powers and restrictions granted by the people - not the states) and apply them to the states. You're reference to Brennan confuses me. Brennan actually noted that Madison had proposed a ghost of the future 14th Amendment at the conventions as he thought that it was "the most valuable part" and that the states were "as liable to attack" those key individual rights as the Federal Government. Before ratification of the 14A, the Federal Government was of much more limited powers. Afterwards, the Congress was empowered by Section 5 which they further then used to empower the courts under 1983 et seq.

For political and racist reasons the Supreme Court ruled that the 14A didn't actually overturn Baron and Scott because they didn't like the political outcomes of that holding. Later SCOTUS made up a way to get to what the 14A was supposed to be in the first place.

Now the whole argument that the Federal Government is of limited powers is sadly pretty bogus now. I'm not saying you're wrong that that is how it is supposed to work, but I'm telling you that the wide range of the Commerce Clause makes everything Federal thanks in no small part to the New Deal.

Do you seriously hold that the 14th Amendment was not intended and should not allow Federal Courts to find that state laws that violate enumerated individual rights in the Constitution are null and void?

-Gene

Your first paragraph is a bit hard to follow, you may want to re-phrase it so I can better respond, so if I'm not addressing your points, please forgive. Let me just ask, have you read the debates of the Reconstruction Amendments?

Because if you haven't then it explains your confusion and your misinterpretation of what's being said in Brennan and why. If you haven't read the debates, and I mean READ them, then we can go in circles forever. But, your clue is 42 U.S.C. 1981 that nothing has changed. If it has then that section would no longer be there.

You statement with respect to:

I'm saying to you that the 14A as actually passed had the intent of applying the package of individual rights contained in the Federal Constitution (a set of powers and restrictions granted by the people - not the states) and apply them to the states.

is not correct. You must not have read the post in which I incorporated the quote from California's Stanley Mosk. It is repeated twice, so have a look at it. As it refutes your statement. and FYI: the people ARE the state. Without the people there would be no state.

The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse." People v. Brisendine 13 Cal.3d 528, 531 P.2d 1099, 1113, quoted at 423 A.2d 615, 626, n.8

As far as the others go, what facts do you have that the limitation of powers is now bogus? Just because the people's representatives are not representing their best interests doesn't mean it's now "bogus."

There has been many cases that have ruled that the Commerce Clause is not all encompassing. The Lopez case, a firearms case (from which California's "school zone" law developed from if I'm not mistaken), a few years back was overturned for that very reason. The feds couldn't impose that law because it was not related to interstate commerce. California's lawmakers, then in turn made it state law.

Do you seriously hold that the 14th Amendment was not intended and should not allow Federal Courts to find that state laws that violate enumerated individual rights in the Constitution are null and void?

Where did I say that? But, NO, I don't. I hold that the 14Amend was for a "newly created class of citizenship" (Read 42 U.S.C. 1981). The feds can ONLY force the states to overturn or even TALK about state law when it violates the rights of ITS [i.e. U.S.] citizens, NOT when the law deals with citizens of that state.

Read the OTHER quote I posted. How about I just posted here AGAIN:

"State high courts may not interpret provisions of the federal Constitution differently from the U.S. Supreme Court. Furthermore, the states may not provide less protection than that required by the federal Constitution as interpreted by the U.S. Supreme Court. State courts this situation would have to rely on federal decisions. State courts may, however, rely on their own state constitution in order to provide protection for individual rights above and beyond the federal requirements. Under the doctrine that the U.S. Supreme Court does not review judgments of state courts that rest on adequate and independent state grounds, such decisions are immune from review by the Supreme Court. Herb v. Pitcairn 324 U.S. 117, 125 (1945)

The are IMMUNE, because the FEDS have NO jurisdiction over state matters INCLUDING individual rights (i.e. the right to bear arms, etc.)

You CANNOT forget that the feds in RECEIVING their powers and duties were incorporated with the fundamentals, because it [U.S.] was being GIVEN (i.e. delegated) the authority to admit any new states, which one of it's delegated duties was to NOT allow any state into the union UNLESS it incorporated those basic rights that IT itself had been given.

And "adequate" only comes into play when "federal citizens" are involved in the equations. Otherwise, they could say NOTHING. I GUARANTEE you ANY case decision you bring that has to do with the courts overturning anything within any state, it is because there is either a corporation or a federal citizen. Which will be a lot because, most people believe that calling themselves a United States citizen, is the same as calling themselves a Californian, or a Texan, or a Illinoian, etc.

DDT
01-06-2009, 9:37 PM
I will attempt to the best of my ability to ignore the ad-hominem attack veiled in your last post.


You know, I had a long response typed in and decided that you simply aren't going to listen. You attack others and behave as if you are a great teacher who is trying to lead others to truth through circumspection and a decided refusal accept your conversation partners as peers. That was the reason I stayed out of this thread for so long.

I think everyone here realizes that the Constitution was not originally applied against the States. The 14th amendment is essentially a statement that the rights retained by the people in the constitution were to be retained regardless of their state of residence.

If you didn't understand until this thread that the nation has been becoming more and more federalized and less and less a republic over the last 200 years then you are actually dumber than you accused me of being.


Please help yourself to the last word.

hoffmang
01-06-2009, 9:46 PM
The are IMMUNE, because the FEDS have NO jurisdiction over state matters INCLUDING individual rights (i.e. the right to bear arms, etc.)


Let me make this simple.

If I want to invalidate a state law that bans anonymous pamphleting in a state that has a state free speech clause in the state constitution I could:

Sue in state court and claim two causes of action; 1 under the state free speech clause, and 1 under the Federal 1A.

If I lost it all the way to and including the State Supreme Court, I could appeal the second cause of action to the Federal Supreme Court and that Court can take the case and overturn the state law.

The 14th Amendment is, was, and always has been meant to impose a minimum class of individual rights found in the Federal Constitution.

You can substitute the 2A related words in all the items above and you'll end up getting the same result post Nordyke.

-Gene

Nick the Sniper
01-07-2009, 3:11 AM
I will attempt to the best of my ability to ignore the ad-hominem attack veiled in your last post.


You know, I had a long response typed in and decided that you simply aren't going to listen. You attack others and behave as if you are a great teacher who is trying to lead others to truth through circumspection and a decided refusal accept your conversation partners as peers. That was the reason I stayed out of this thread for so long.

I think everyone here realizes that the Constitution was not originally applied against the States. The 14th amendment is essentially a statement that the rights retained by the people in the constitution were to be retained regardless of their state of residence.

If you didn't understand until this thread that the nation has been becoming more and more federalized and less and less a republic over the last 200 years then you are actually dumber than you accused me of being.


Please help yourself to the last word.

Attack? How about cutting and pasting some actual insults and "attacks" as you mislabel my conversation. I even said in an earlier post how much I've enjoyed the (up until now) mature conversations I've been having.

How about you cut and paste where "I've" called ANYONE on this forum "dumb" least of all you. If you feel inadequate, or "dumb" then you'll have to square with that. It is a FACT that if your (or mines or anyone else's for that matter) knowledge is limited, then there is no way you can have a meaningful conversation when knowledge is limited and you REFUSE to educate yourself of the subject matter the other party presents, ESPECIALLY when its obvious that you weren't aware of what's being said. And it's obvious by the fact that you haven't presented NOT ONE rebuttal. "I" am not quoting MYSELF, I'm quoting from the courts, and from jurists who are stated to be of high regard. Heck, Stanley Mosk has a court house named after him.

So do get yourself all wrapped around the axel and start making false accusations because your ego is bruised. I brought this conversation in the spirit of friendly conversation. I don't consider myself no better than the next. But, I HAVE read what I have read, I have spent tens of thousands of hours educating myself across a wide level of information, and I have NOT limited myself to one field of study. Because it is necessary. You cannot possibly get the full grasp of these United States without an understanding of International Law. You can't get the full grasp of the 14thAmend without a proper understanding of how the courts are bound by the rules of interpretation that THEY have establish.

And yes they are becoming more and more "centralized" because they were already "federalized" with the Articles of ConFEDERATION (Hel-lo). If anyone believes "federal" means "central" they are believing a falsehood. But as I understand your statement, yes they are becoming more CENTRALIZED, but it is without constitutional authority, and more of the so-called representatives of the people of the states NOT doing what they are REQUIRED to do. That's it, no more, no less. Well, that and including People allowing this nonsense to go on. Why even have a constitution if it's so elastic? Oh wait it's not it's the 14thAmend that's elastic. The VERY thing that was the uproar of the states at the beginning of its proposal. READ THE DEBATES PLEASE, then get mad at me. Until then YOUR insults and rants are akin to shooting the messenger. Get over it.

Nick the Sniper
01-07-2009, 3:26 AM
Let me make this simple.

If I want to invalidate a state law that bans anonymous pamphleting in a state that has a state free speech clause in the state constitution I could:

Sue in state court and claim two causes of action; 1 under the state free speech clause, and 1 under the Federal 1A.

If I lost it all the way to and including the State Supreme Court, I could appeal the second cause of action to the Federal Supreme Court and that Court can take the case and overturn the state law.

The 14th Amendment is, was, and always has been meant to impose a minimum class of individual rights found in the Federal Constitution.

You can substitute the 2A related words in all the items above and you'll end up getting the same result post Nordyke.

-Gene

You have your opinion and you're welcome to it. Under the federal citizen domiciled in DC, but residing in one the states of the union, you're right. But from an indigenous, native of the state you are born and raised in, you're flat out wrong, and nor should it be. Why would I go outside my nation to another sovereign and ask that sovereign to "grant" or "approve" anything I do? Are you serious? You're not confronting the fact that these are TWO SOVEREIGNS, and the agreement between the sovereigns are: WHEN MY CITIZENS ARE IN YOUR SOVEREIGN TERRITORY, THESE ARE THE RULES, AND WHEN YOUR CITIZENS ARE IN MY SOVEREIGN TERRITORY "THESE" ARE THE RULES. Everyone is so hell bent on "asking" for grants and approvals when they are sovereigns within their own rights. Not to mention that if sovereigns disagree and cant come to an agreement they just go to war. Nobody's "asking" for anything.

Just as stated to DDT, these are not my words, they come from the highest courts, and from jurists deemed to be noteworthy.

And you as well have failed to provide anything rebutting THEIR statements (NOT mine).

I'm not spouting off on opinions. I've done nothing but provide the words from the courts you seek to get your "federally" claimed "rights" under. Individual rights are of TWO classes. The one you demand them other are like night and day, and both have their consequences. As we are now going in circles, and everyone's nice and mad at the citations quoted (again, it's not from ME), I will agree to disagree.

But, I'll end it on this note. You have failed to provide anything, other than opinion, of any jurists disapproving or rebutting the jurists that have been quoted. There have been many quoted. And there can be many more provided. And AGAIN, I will bet the proverbial farm that ANY case you bring in support of your opinions will always be from the perspective of a federal citizen.

And WHY hasn't ANYONE confronted the language of 42 U.S.C. 1981??? If the 14thAMEND is as you say, why is that dang language STILL there???

Oh wait, never mind, DDT will think I'm being insulting "ad hominem." REALLY?!

It was fun.


BUT IN SIDE BAR:

There is the complaint for Declaratory Relief that can be brought, after you create a controversy to the responsible agency, that can then be taken to the court for a direct confrontation, as opposed to letting an idiot criminal frame the wrong issues to the court. I think going on the offensive would be a lot better than the defensive so that the issues can be on the terms desired, as opposed to the terms of circumstance.

Again, just a thought.

hoffmang
01-07-2009, 12:52 PM
And WHY hasn't ANYONE confronted the language of 42 U.S.C. 1981??? If the 14thAMEND is as you say, why is that dang language STILL there???


Yeah. It's right before 42 U.S.C. 1983 which you probably don't want to quote. That section says:


Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Why is that in there if you're right?

-Gene

6172crew
01-07-2009, 1:24 PM
Good read! Please continue without attacking those who might bring another opinion to the table.

Nick the Sniper
01-07-2009, 8:47 PM
Yeah. It's right before 42 U.S.C. 1983 which you probably don't want to quote. That section says:



Why is that in there if you're right?

-Gene


Look, Gene, I don't have a problem with "quoting" anything. It seems as though you and DDT (well, maybe not so much you) are getting touchy about this.

I have spent over 40,000+ hours researching this history and a significant amount of time on the development of the 14thAmend. So, just bring the query and let's hash it out.

But, to answer your question. You have to remember (as it relates to your question) these three things:

1. The Constitutions, from which all other statute, ordinance, regulation, custom, or usage is developed from, are restriction upon "government" not the people;

2. In the eyes of the law you can have only ONE domicile, but MANY residences. So in the "eyes of the law" if you are a US (DC) citizen or "claiming to be a US (DC) citizen, RESIDING in one of the states of the union, then you have immunities and protections when you are out and abroad FROM the US. When you are residing someplace "in the eyes of the law" you are always presumed to be eventually returning to your domicile;

[Caught that (and investigated it within case decisions, want some of the case citations just say the word) form president George H.W. Bush on that one some time back when a reporter asked him how he's able to hold down so many positions. His reply was "Well, you can have many residences, but only one domicile."]

and

3. How is "State" defined in that title?

Are you aware that the US Code has at LEAST 25 different definitions of "United States?" And they all are confined to the sections, chapters, or subdivisions they are defined within.

First, that particular part you quoted goes to any government agent using a statute, ordinance, regulation, etc. to deprive any rights, privileges, or immunities secured by the Constitution and laws, by someone within the place of "residence" under "color. . ." then there is a statutorily "granted remedy." To the statutorily created "US citizen."

Never before the 14thAmend had there been a legally cognizable classification of "U.S. citizen." Yes the citizens of the Union of States were Citizens of the United States of America, but not United States citizens.

"By metaphysical refinement, in examining our form of government, it might be correctly said that there is no such thing as a citizen of the United States. But constant usage - arising from convenience, and perhaps necessity, and dating from the formation of the Confederacy - has given substantial existence to the idea which the term conveys. A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the states, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the constitution, which must be deduced from its various other provisions. The object then to be obtained, by the exercise of the power of naturalization, was to make citizens of the respective states." Ex parte Knowles (1855) 5 Cal. 300, 302.

"The 14th Amendment creates and defines citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except by first becoming a citizen of some state.

[quote]"Both before and after the Fourteenth Amendment to the federal Constitution, it has not been necessary for a person to be a citizen of the United States in order to be a citizen of his state." Crosse v. Bd of Supvr's of Elections (1966) 221 A.2d 431


Next how is "State" defined in that title, or as applicable to that Chapter? Why is that a valid question?

"Include or the participial form thereof, is defined to comprise within'; 'to hold'; 'to shut up'; and synonyms are 'contain'; 'enclose'; 'comprehend'; 'embrace'." Montillo Salt Co. v. Utah, 221 U.S. 452, at 455, United States Supreme Court.


FEDERAL RULES OF CRIMINAL PROCEDURE
Effective March 21, 1946, as amended to December 1, 2007
TITLE I. APPLICABILITY

(b) Rule 1. Scope; Definitions
Definitions. The following definitions apply to these rules:

(9) ‘‘State’’ includes the District of Columbia, and any commonwealth,
territory, or possession of the United States.

The Feds can create "States" within states. Don't believe?

6017. "In this State" or "in the State" means [U]within the exterior limits of the State of California and includes all territory within these limits owned by or ceded to the United States of America. California Revenue and Taxation Code

So which State is that referring to?

Nick the Sniper
01-07-2009, 8:54 PM
Good read! Please continue without attacking those who might bring another opinion to the table.

Semper Fi

truthseeker
01-07-2009, 9:44 PM
I have a "feeling" that Nick the Sniper is the judge who presided over the case.:hide:

hoffmang
01-07-2009, 11:24 PM
Look, Gene, I don't have a problem with "quoting" anything. It seems as though you and DDT (well, maybe not so much you) are getting touchy about this.
Nick,

I have not at all attacked you. 42 USC 1983 undercuts your position. I was attacking your argument that 1981 was somehow dispositive.

So which State is that referring to?
Trying to claim that State doesn't mean State is an un-serious legal argument not unlike trying to claim that keep and bear arms doesn't mean posses and carry guns and knives.

There is no special definition of citizen. The term is a direct response to the argument that slaves were not citizens in Scott v. Stanford. Trying to deny that the 14th Amendment isn't a direct response to that case is also un-serious.

42 USC 1983 (http://www.constitution.org/brief/forsythe_42-1983.htm) was passed in 1871 as part of the Klu Klux Klan act. Ex Parte Young in 1907 established that. The Supreme Court ruled in 1897 that the 14th Amendment is a limitation on states in Halinger v. Davis.

Are you sure you weren't reading Southern Democrat (aka KKK) interpretations of the 14th Amendment? There is plenty of historical attempt to persuade that the 14th Amendment didn't mean what is said and your argument sounds very much like it comes from that strain of "reasoning."

The 14th Amendment was enacted to prohibit states from violating the rights of anyone eligible to receive a passport from the United States and legal visitors.

-Gene

DDT
01-08-2009, 11:13 AM
I have a "feeling" that Nick the Sniper is the judge who presided over the case.:hide:

Not a chance.

Nick the Sniper
01-08-2009, 1:35 PM
Nick,

I have not at all attacked you. 42 USC 1983 undercuts your position. I was attacking your argument that 1981 was somehow dispositive.

-Gene

I didn't say YOU are "attacking" me. (And I didn't say DDT was either, my EXACT words were "getting touchy." DDT used the word "attacking." However, I'm responding to your statement "which you don't want to quote" as if I'm hiding or intentionally overlooking something. I was making it clear, that I'm not running from anything.

Let me also say I'm not trying to "convince" anybody or "prove" anything to anybody. This dialogue resulted from observations I made on this particular forum, thought I'd share my findings, and this developed.

Albeit I did know it would "opening a can of worms," but with some open minded discussion, I KNOW the FACTS will speak for themselves. And I have no problem discussing it. And in fact quite enjoy it. But, DDT started getting a bit personal with it, and it appeared as though you were too. I may have jumped the gun with you, regrettably, and if I did, for that I apologize.

But it is difficult to try to explain at times the many nuances of how law is constructed and the many rules that apply to those who are unaware of them and do not take the time to go investigate what I'm saying for themselves, I'm providing the so-called "authorities." Which is what I encourage, because again, these are not MY words, this can be found with a little effort and diligence.

I point out yet again, that NO ONE has put up any authority that specifically refutes the authority that states what IT (not me) states. All you do is run to another section or a "word" or "phrase" as if it is a valid rebuttal. And it's not because it's obvious that you are not taking into account the rules of construction, or rules of interpretation.



Trying to claim that State doesn't mean State is an un-serious legal argument not unlike trying to claim that keep and bear arms doesn't mean posses and carry guns and knives.

-Gene

You're taking an "all-in" approach as if there is one rule that controls everything.

There are "special" and "general" rules, "procedural" and "substantive" rules, "status" and "classification" rules, "defined" and "undefined" rules, from which one or the other of either of the one or other may or may NOT apply. Based on the restrictions in place and the powers allowed, the rule is determined based on those considerations. It's very clear and obvious that you aren't aware of this, especially when you say things like:



Trying to claim that State doesn't mean State is an un-serious legal argument not unlike trying to claim that keep and bear arms doesn't mean posses and carry guns and knives.

-Gene

A) Because I never said that "State doesn't mean State." My QUESTION was how is "State" DEFINED within the section, chapter, and/or title you referenced?; and

B) I'm not "claiming" anything. I did a cut & paste quote directly from the Federal Criminal RULES, and one from California Revenue and Taxation Code which CLEARLY shows that there are DIFFERENCES in how State can be defined.

So to say it is (i) an "argument," and (ii) un-serious (without merit), either means that you are not reading clearly or you are speaking from an emotional point of view, because it is certainly not based on fact. " I " didn't write those code sections. I just cut and pasted them for an example and proof of facts of my statements.



There is no special definition of citizen. The term is a direct response to the argument that slaves were not citizens in Scott v. Stanford. Trying to deny that the 14th Amendment isn't a direct response to that case is also un-serious.

-Gene

Never claimed there was. But, I DID say there are "CLASSIFICATIONS." And those court cases I cited evidences that. Do you have any case decisions that say that those holdings are WRONG. And don't bring Scott, into it because at the time that decisions was rendered the case was accurate "in the eyes of the law." It wasn't until after the adoption of the 14thAmend was it overturned, and even then it was ONLY overturned as much as it was allowed to, because of the limited applicability of the amendment. The 14thAmend CREATED the OTHER classification of citizenship. I.e. FEDERAL citizenship.

But, yes you are (in part) correct, the 14thAmend, was partially a response to that case. However, prior to that there was the Civil Rights Act of 1866 which is the EXACT language of section 1 of the 14thAmend

FYI: I notice you keep citing the case as Scott v. Stanford, I had been just ignoring it as a typo, but it persists, so I can only presume at this point that it's not. The case is Scott v. Sanford (without a "t").


Hey, if I've said it once, I've said it a thousand times, I've done an IN DEPTH study. It didn't come from one or two sources. I'm very well aware of the proponents and opponents positions. And when I say I've read the Debates, I don't need to go back and look at the title and see if I'm speaking correctly.

The question is NOT whether I am sure I read the debates, the question is have YOU read them. Apparently you haven't because we wouldn't be having this conversation.

There is nothing new you can tell me as to why section 1983 was enacted, or what the 14thAmend was supposed to do. I find it very interesting how everyone is so opinionated while refusing to go to the beginning. Ignoring the origin is to never know the present, because it reduces all comments to speculation. I can say what I can, because, I've been to the origin, because I know how to tell between judicial activism and honest "by the rules" decisions.

If the RULES are so flexible then why have them? Why pay attention to anything? Because everything becomes subject to the whim of whoever's welding the chains of power at the time.

Don't ignore the rules. They are there for a reason. They mean what they say and say what they mean. California courts on more than one occasion has said that things are reviewed under the light of how things existed at the adoption of the [California] Constitution. That means the common law, and the common law came from England (I know you know this, this is just an example), so do you start at that point? No you go back to England, and see how the particular line of decision of a given subject matter developed. Then you have an ACCURATE vision of why and how things are or are not applied properly or improperly.

You also seem to be ignoring that I am agreeing with you. BUT only insofar as it is applicable. Yes the 14thAmend was a protective restriction upon the states, yes it yada, yada, yada. However, under the RULES of law, (including the law of nations), the federal government has NO authority within the states, outside of the VERY limited delegated authorities. BUT WHEN IT COMES TO "ITS" citizens, the feds can make ALL KINDS of rules. Because those are the rules and regs that apply to ITS citizens.

"Strained reasoning?!" Hardly. Only to someone who is trying to fit a square peg into a round hole. You're occupied looking for flaws or holes to expose instead of listening with an open mind and THEN verifying for yourself, and THEN commenting. Which I guess is okay, to a point. But, if you're doing it WITHOUT providing contrasting proof which is expressly refuting the what's and why's then you just reduce your conversation to emotional opinions.

Everything I've provided has been concise, and in logical sequence from the next. All from recognized authorities. Everything you have attempted to rebut with has been from a selected word or section, or an arbitrary statement. Albeit partially correct insofar as for what it was offered, it still misses the rebuttal to my statements.

I don't know what the "presiding judge" comment is about, all I can tell you is I've spent the majority of five to seven years in a balls-to-the-walls study of this. I hate to sound like a "know-it-all" because it is not my intent. I am merely sharing my findings, and I have researched them in depth for possible flaws. Basically I studied them so as to disprove them as opposed to take them as is.

So where your questions are on a superficial level reasonable, they are not on point taking into account the history behind these issues. On the flip side, where what I say may "appear" (key word) to be "strained reasoning" they are not because you are not taking into account the applicable rules.

Like many people have been taught in the commercial history books that there was a "civil" war. But if you look at the definition, and compare it to the "laws" that were/are in place, it wasn't a CIVIL war it was an "international" war. A war between sovereign "countries." A war between states/nations/countries, and fell under the guidelines of the law of nations.

If anything the strained reasoning comes from trying to grapple with your statements and the facts. Okay there are rules, but they don't have to be followed; okay there are sovereign states, but sovereignty is not really all that sovereign; okay there are absolute rights, but we have to get them recognized; okay delegated means to authorize and authorize means to "give" the authority, BUT once it's been authorized the authorizee is now all powerful. Come on, THAT is the epitome of strained reasoning.

True I was "hardly" the presiding judge, but then again, I haven't just cited ONE case. And NOBODY, cheap shot comments included, has come even remotely close to finding a direct refutation of what those deciding authorities had to say (because it wasn't ME talking).

It's been fun. Until the next time....

Nick the Sniper
01-08-2009, 1:41 PM
You know, this discussion has REALLY made me see what Shakesphere was talking about with respect to "lawyers."

Don't shoot the messenger.

GuyW
01-08-2009, 3:26 PM
I have spent over 40,000+ hours researching this history and a significant amount of time on the development of the 14thAmend.

8 hrs/day x 260 days/year x 19.23 years = 40,000 hrs. (ie, 8 hrs per day, 5 days per week, for 19.23 years...)

oops

....all I can tell you is I've spent the majority of five to seven years in a balls-to-the-walls study of this....

40,000 hrs / 5 years = 8000 hrs/yr.

8000 hrs/yr / 365 days/yr = 21.92 hrs PER DAY, every day for 5 years....

Gee, I call BS.


(Is this "resort to authority"?)

But why are you sniping us?



.

GuyW
01-08-2009, 3:32 PM
The Feds can create "States" within states. Don't believe?

Quote:
6017. "In this State" or "in the State" means within the exterior limits of the State of California and includes all territory within these limits owned by or ceded to the United States of America. California Revenue and Taxation Code

So which State is that referring to?

California....duh. Is this all you've got?
.

yellowfin
01-08-2009, 3:54 PM
This sounds like a degeneration into the definition of "is."

DDT
01-08-2009, 6:38 PM
This sounds like a degeneration into the definition of "is."

To degenerate to that level you would have to assume that there wasn't one of the parties already taking that approach.

Nick the Sniper
01-09-2009, 12:09 AM
8 hrs/day x 260 days/year x 19.23 years = 40,000 hrs. (ie, 8 hrs per day, 5 days per week, for 19.23 years...)

oops


40,000 hrs / 5 years = 8000 hrs/yr.

8000 hrs/yr / 365 days/yr = 21.92 hrs PER DAY, every day for 5 years....

Gee, I call BS.


(Is this "resort to authority"?)

But why are you sniping us?

.

You think I'm sniping you guys? Wtf are you smoking? Cut & Paste ANY insult or denigration that "I" have said against anyone on this forum. You can't do it, because I haven't done it. As I keep repeating, the FACTS speak for themselves. BS? Identify and refute with some FACTS. FACTS are not insults or questions attempting to throw shade. Because all you're REALLY doing is attempting to do is to say that the case decisions, the statutes, and definitions defined by the "legislature" are only what YOU say they are with nothing to support your opinion.

The world's not out to get you. [sniping you...lmao...OMG] Sounds like paranoia. I'm "sharing" my findings of focused study. It sounds like you hate when someone has a different view point. And you STILL haven't rebutted anything. Yet, you still trying to throw out insults.

Furthermore, I never said anyone was wrong, as my posts will show. In fact I have agreed for the most part with what was said. However, where I differ is in anyone's position, that the fed is the be all, end all as it relates to these states of the union. It is Historically inaccurate. Just as I disputed with FACTS (convincingly I might add) the comment that the Bill of Rights was "bundled up" and applied to the states.

Justice Stanley Mosk, and repeated by another Justice (remember "justices" are within the supreme courts ONLY) made it clear and I'll post it again:


"Justice Handler quoted California's Stanley Mosk: 'It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse." People v. Brisendine 13 Cal.3d 528, 531 P.2d 1099, 1113, quoted at 423 A.2d 615, 626, n.8


Secondly, your math is wrong. You presume to know my schedule. And your math is off.

Try 14-16 hrs/day x 365 days/year x 7 years = 40,000+ hrs.

Minus a few days here and there during litigation in both state and federal courts. Fortunately, my previous occupation allowed me to be able to use my time wisely.

I started my research in 1999. LA County Law Library, Westlaw Pro Subscription for 4yrs, the purchase of over X amount of law books, practice and procedure guides, dictionaries, etymology dictionaries, law dictionaries....

Balk all you like, but your insults can hardly be of any bother to me because you STILL haven't provided any authority that has specifically overturned or refuted as WRONG what I've posted. I'm not on here to "prove" I know more than anyone else, or that I'm somehow better. I'm stating FACTS. I know they may make you mad and resentful, but hey whatareyagonna do?

It is fact that the states are sovereign.

It is fact that the states "granted" sovereign powers and territory to what is now known as the united states.

It is fact that sovereign means self-governing.

It is fact that without people OF the states there would be NO state.

It is fact that there are TWO classes of citizenship: state and federal.

It is fact that the constitutions are RESTRICTIONS upon GOVERNMENT and not the people.

It is fact that the ONLY constitution that is NOT one of restrictions is the U.S. Constitution as it is the model for any NEWLY admitted states to base its fundamental provisions on if it is to be "granted" admission.

It is fact that the 14thAmend CREATED a new class of citizenship for a class of people that were not recognized as having any rights.

It is fact that this why they were called "colorable."

It is a fact that the courts have RULES of interpretation which DEPEND upon LEGISLATIVE INTENT.

It is a fact that LEGISLATIVE INTENT GOVERNS until EXPRESSLY changed BY the LEGISLATURE or CONSTITUTIONAL AMENDMENT.

It is fact that one does not have to be a citizen of the United States to be a citizen of one of the respective states.

It is fact that the CREATOR can NEVER be LESS than the CREATED. Because nothing is more pure than its origin.

It is a FACT that I have said that it is not "I" saying this. And I have provided ACTUAL QUOTES VERBATIM from the sources that did.

It is a FACT that YOU or any other insultor has NOT provided ANYTHING contrary in dispute other than OPINION and insults.

So enough with all the talk about "attacks" and "BS" and "thinking you're some great teacher of others." When you can't provide any FACTS or cases that say that the cases, and statutes that I've put out front are WRONGLY decided, all it does is make you look is emotional, and temperamental.

I was told early on by a mentor "there is only one place for emotion, the bedroom, and the bathroom."

There's also another saying, but by the lawyers: "When you don't have facts, argue the law. When you don't have the law, argue the facts. When you have neither, bang on the table."

The noise you're making is deafening.

yellowfin
01-09-2009, 12:24 AM
You think I'm sniping you guys?

... Examine the above, if you will. Now where would someone get that idea?

DDT
01-09-2009, 10:23 AM
Come on, you have a difficult time believing that he has dedicated 14-16 hours a day to pure research in addition to his school, work, litigation schedule? Where's your faith in humanity?

You think he isn't attacking people just because he says they lack the ability to use logic? Come on, you're just being thin skinned, he meant it as a compliment.

You think that just because he refuses to acknowledge anything posted by people far more respected than he makes him disingenuous? Or that while still insisting that he is only stating "facts" while everyone else is relying on opinion and insult is denigration? Clearly you don't know enough to bow down and kiss the ring of a far superior intellect than yourself.

We have not come here to bury Nick, but to praise him!

MP301
01-11-2009, 3:24 AM
I was told early on by a mentor "there is only one place for emotion, the bedroom, and the bathroom."



Wait a minute..... going to the bathroom is an emotional experience? Have I been doing it wrong for all these years?

And the bedroom and the bathroom are 2 places, not one! Geeze, give you books, send you to school....

BobB35
01-11-2009, 7:18 AM
Nick,

I am not going to argue with your research, those may be the facts. During your research did you ever find this rule "Those who have the guns make the rules." ?

This issue was settled during the Southern attempt at succession. While in the right, those with the guns changes the rules and in effect changed the law.

A law is only valid if you can back it up with force. That's why anyone who says "yea my gun carrying rights are all I need to carry a gun and not some stupid CCW from the state" are wrong. There are something like 75,000 LEO that are willing to use force to prove you wrong in CA. Now if you could go collect 76,000 of your friends and all do that at the same time, guess what you would be right.

This is something most people forget. Law by themselves are just words. Without the power to coerce, force, enforce etc, they are at best suggestions. This is the reality of the world we live in.

The states are no longer sovereign. they are subject to the federal government. Do I think they should be, hell no, but I don't have a well equipped army of 3 million people to defend my position and return to the way things should be. At some point this country will fracture and dissolve, probably within the next 30 years, because the stress is building.

Nick the Sniper
01-12-2009, 11:58 PM
Come on, you have a difficult time believing that he has dedicated 14-16 hours a day to pure research in addition to his school, work, litigation schedule? Where's your faith in humanity?

You think he isn't attacking people just because he says they lack the ability to use logic? Come on, you're just being thin skinned, he meant it as a compliment.

You think that just because he refuses to acknowledge anything posted by people far more respected than he makes him disingenuous? Or that while still insisting that he is only stating "facts" while everyone else is relying on opinion and insult is denigration? Clearly you don't know enough to bow down and kiss the ring of a far superior intellect than yourself.

We have not come here to bury Nick, but to praise him!

Hmmm...."refuses to acknowledge anything posted by people far more respected."

What on this forum? I thought everyone followed the rule of "law." Because that's all I've been posting, CASE DECISIONS...if this is a popularity contest then yeah, you've got me beat hands down.

And I still don't see any case decisions, any statutes, regs., or whatever, saying that the MANY case decisions that I've cut & pasted from the "source" has been rebutted. Just more ole same ole same.

I also haven't heard anyone confirm their reading of the Congressional Debates. The whole REASON for the 14th Amendment. But, I guess the reason is unimportant. So let's just all contort however we want. Why not? That's what the so-called lawmakers do. Right?

As far as the time I've spent researching, jealousy will get you nowhere. Genuflect when you step into this room DDT

There are some people who experience things that lights a fire up under them to find out EXACTLY what the hecks going on in how one group of people can treat another group of people the way they do.

Nick the Sniper
01-13-2009, 12:01 AM
Wait a minute..... going to the bathroom is an emotional experience? Have I been doing it wrong for all these years?

And the bedroom and the bathroom are 2 places, not one! Geeze, give you books, send you to school....

Now that's the FIRST valid "rebuttal" I've had this whole time. lmao... good one, okay, so the "accurate" statement is only TWO (2) places....

Unfortunately for everyone else, the rebuttal doesn't address the case decisions and the propositions "the judges and justices" have held.

Nick the Sniper
01-13-2009, 12:08 AM
Nick,

I am not going to argue with your research, those may be the facts. During your research did you ever find this rule "Those who have the guns make the rules." ?

This issue was settled during the Southern attempt at succession. While in the right, those with the guns changes the rules and in effect changed the law.

A law is only valid if you can back it up with force. That's why anyone who says "yea my gun carrying rights are all I need to carry a gun and not some stupid CCW from the state" are wrong. There are something like 75,000 LEO that are willing to use force to prove you wrong in CA. Now if you could go collect 76,000 of your friends and all do that at the same time, guess what you would be right.

This is something most people forget. Law by themselves are just words. Without the power to coerce, force, enforce etc, they are at best suggestions. This is the reality of the world we live in.

The states are no longer sovereign. they are subject to the federal government. Do I think they should be, hell no, but I don't have a well equipped army of 3 million people to defend my position and return to the way things should be. At some point this country will fracture and dissolve, probably within the next 30 years, because the stress is building.

Bob you're correct insofar as the "might makes right" position goes. But, I still disagree about states no longer being sovereign.

I cannot disagree that those charged with "representing the people" are not doing so and essentially, as DDT has stated, CENTRALIZING everything. But, it is central only insofar as it works against the people. If the majority of us truly "believed" as the laws are set-up and written that they were still in effect, which they are, then it would be a matter of enforcing the state's rights, in which the feds "by law" have no authority.

How many LEOs know this? How many of us know this? We are unable only because we don't know? Again, I reference when Gov. Gray Davis was ousted. The people didn't need to get "federal" approval. I reference the medical marijuana laws. The feds have adamantly said it is illegal, yet they are still in force and effect in many of the states. That in and of itself is a testament that sovereignty does exist.

So yeah, might appears to make right. But, only insofar as the sleeping giants that we be remain slumbering.

At any rate, I just went on with this from the topic that this thread started. The 2d Amend. It goes without saying that the lone wolf makes easy prey. And I don't really think they care what's right or wrong. Only what's policy. With most LEOs there's an "us against them" mentality. They have basically become an "authorized" gang. If it weren't the unconstitutional requirements placed upon them would not be enforced. The enforcement of traffic "infractions" is a prime example of this.

Nick the Sniper
01-13-2009, 1:10 AM
Miller v. Texas, 153 U.S. 535, 538-39 (1894)

[Miller challenged a law banning the carrying of dangerous weapons on the person.] In his motion for a rehearing, however, defendant claimed that the law of the state of Texas forbidding the carrying of weapons, and authorizing the arrest, without warrant, of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the second and fourth amendments to the constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures.

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts. And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.

Nick the Sniper
01-13-2009, 1:12 AM
Maxwell v. Dow, 176 U.S. 581, 597 (1900)

[The Court concluded that the Jury Trial Clause wasn't incorporated into the Fourteenth Amendment, and thus didn't bound the states.] In Presser v. Illinois, it was held that the Second Amendment to the Constitution, in regard to the right of the people to bear arms, is a limitation only on the power of Congress and the national government, and not of the states. It was therein said, however, that as all citizens capable of bearing arms constitute the reserved military force of the national government the states could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Nick the Sniper
01-13-2009, 1:24 AM
United States v. Cruikshank, 92 U.S. 542, 551 (1876)

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, "the scope and application of these amendments are no longer subjects of discussion here." They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

Nick the Sniper
01-13-2009, 1:25 AM
It's not ME saying this! Any proof other than opinion that these have been overturned? [DDT is in the horizontal and the vertical cross.]

Notwithstanding "might makes right."

GuyW
01-13-2009, 8:59 AM
Miller v. Texas, 153 U.S. 535, 538-39 (1894)

....And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States we think it was fatal to this claim that it was not set up in the trial court.,

Irrelevant case. The issue wasn't raised in the trial court.

trinydex
01-13-2009, 9:37 AM
But, no one has really answered my query......Notwithstanding hoffmang's "back at'cha" Why is it that we would have to "fight" to get "rights" incorporated in the states where we were all born and raised? And why doesn't that strike anyone as peculiar?

Your statement indirectly answers the question. Because it is being fought from the United States (DC) and not from the state.


i have a question, after reading a lot of this back and forth.

do you believe if we pursued via the state legal system (choosing alternate jurisdiction), would we be able to accomplish the end goal (increase/vindication of second amendment rights)? i got the feeling from the onset that dc vs. heller and later the "sons of heller" cases were being pursued expressly because "attacking" the state's laws would not bear fruit.

it is peculiar, but we live in a ****ty state (as far as 2nd amendment rights goes). the same can be said of residents or "citizens" of new york, chicago etc...

Remember when everyone was fed up with Gov. Gray Davis and Californians said ENOUGH! and removed his rear from office? That is the power each Citizen, of their respective states, have to make change if they flex it in the right way. I.e. through the state and ITS constitution. The feds have "their" own, and the states have theirs. To claim rights under the feds is to claim to be a citizen subject to the jurisdiction thereof.

now i have a question about this you keep bringing up. applying it to "our" situation. it's not hard to say that most people in california (and similarly in other anti rkba states) are either ambivalent or fervently against the idea of rkba. how do you get a gray davis style "kicked outta office" reaction with the pool of activism we draw on in our unfortunate state?

or are you suggesting that if the popular opinion is that "we" (as members of the public, citizens of california) don't have a personal right to defend ourselves with the best personal instruments, then there is no actual right? i don't believe you are saying that, but what is alternative then? what should we be doing...?

FreedomIsNotFree
01-13-2009, 10:16 AM
These type of debates, Federal Citizen v. State citizen, are intriguing, but always fall flat in a court of law. One neat thing about lawyers is they can always find something to argue about...and most of the time they are able to present their case with some semblance of reasonableness...regardless if they are built on sound legal arguments.

This thread has devolved into a class on legal theory.

trinydex
01-13-2009, 10:18 AM
A) Because I never said that "State doesn't mean State." My QUESTION was how is "State" DEFINED within the section, chapter, and/or title you referenced?; and


how is state defined in this section then?


If the RULES are so flexible then why have them? Why pay attention to anything? Because everything becomes subject to the whim of whoever's welding the chains of power at the time.


so with all these different definitions of state, all these varying interpretations of intent when law was formed or cases were decided... are you saying there's inflexibility in law?

mecam
01-13-2009, 11:14 AM
Am I reading this right that he only received 3 year probation for breaking multiple laws? What happened to our justice system? :confused:

A jury convicted Miguel Flores of possession of a firearm by a person
prohibited from possessing a firearm (Pen. Code, § 12021, subd. (c)(1)),1 carrying a concealed
firearm (§ 12025, subd. (a)(2)), carrying a loaded firearm in a public place (§ 12031,
subd. (a)(1)), and resisting a peace officer (§ 148, subd. (a)(1)).

The trial court sentenced him to three years of probation.

Nick the Sniper
01-13-2009, 12:18 PM
Irrelevant case. The issue wasn't raised in the trial court.

Only if you OVERLOOK the preceding eight (8) words. "as pertaining to citizens of the United States."

That's the ONLY rebuttal you have? A half-reading? AGAIN the courts show you there is a DISTINCTION between being a 14thAmend "federal" citizen and one of the state, and all you can do is seize INCOMPLETELY the part of the "sentence" that you think makes you able to form an opinion as to relevance. Guess the other three or four cases besides that one showing basically same degrees of separation are relevant though, as you haven't rebutted those.

Too easy.

Nick the Sniper
01-13-2009, 12:44 PM
how is state defined in this section then?



so with all these different definitions of state, all these varying interpretations of intent when law was formed or cases were decided... are you saying there's inflexibility in law?

With respect to how the state is defined in that particular section, how about you cut and paste the origin of that statement so I can properly respond, and not have to search the many posts that we've been going back and forth on over this. Secondly, that question would be properly raised to the person that I was responding to. Lastly, it is just as easy for YOU to find out how "state" is defined within that section by doing a little search yourself. Since you're posting here, it's apparent you have a computer, which accesses the internet, which accesses some form of search engine. So find that out, and I'll respond. It's amazing how comments come as if I'm making this up, but I've provided verbatim copy & paste sections exemplifying what I'm saying and why I'm saying it. That no one has been able to show otherwise I might add. Don't get upset and snippy with me, go talk with your legislators and their attorneys.

With respect to your question as to "inflexibility in law," I don't see how you get that question as I understand "flexible" to mean able to bend easily. And if nothing else, I think "flexibility" within the law is apparent. That is the very nature of the 14thAmend and why the states had so much disdain for its introduction while debating its adoption.

You think Shakesphere was just being creative when he made his statement about the lawyers? I think it was a testament to the antics of those that play with words and their meanings. Bill Clinton showed us that. And are you aware that the majority of politicians have juris doctorates? That's no coincidence.

I can't stress enough the ACTUAL READING of the Congressional debates. If no one is going to bother reading the ORIGIN, but continue with snide remarks, then its obvious it doesn't matter, so nothing I say, none of the case law PROVING what I say, none of what the judges and justices have to say means anything to you anyway. You're too busy defending your statements as opposed to finding out the FACTS.

But, for those that are interested in the FACTS here is the source (the actual framers of the amendments). I've heard, but cannot say with certainty, that LA County Law Library and one out of state are two of the very few that still have this available. I know the LA County Law Library has it, as that's where I was able to read it. It's long, but WELL worth the read.

Then, for those that are interested in the FACTS, research the doctrine of original intent. Then you can see when there is embellishment, or when there is an honest decision.

Title: The Reconstruction amendments’ debates; the legislative history and contemporary debates in Congress on the 13th, 14th, and 15th amendments.

Publisher: Richmond, Virginia Commission on Constitutional Government, 1967.
Description: xxxii, 764 p. 29 cm.

Notes: Selections from the Congressional globe and the Congressional record, covering the years 1849 to 1875.


The FACTS speak for themselves gentlemen. Not I or any of your opinions. Moving around without facts and attacking an idea because you refuse to look at the FACTS is akin to a mob. No one can reason with a mob, but the mobs current whim.

Not that I'm calling you fine gentlemen a mob of course. :44:

Librarian
01-13-2009, 2:19 PM
Title: The Reconstruction amendments’ debates; the legislative history and contemporary debates in Congress on the 13th, 14th, and 15th amendments.Available used for about $100.

It's not rare, exactly:
CALIFORNIA POLYTECHNIC STATE UNIV, SLO CPS
CALIFORNIA STATE UNIV, FRESNO CFS
CALIFORNIA STATE UNIV, FULLERTON CFI
CALIFORNIA STATE UNIV, LOS ANGELES CLA
CALIFORNIA STATE UNIV, SACRAMENTO CSA
CALIFORNIA WESTERN SCH OF LAW LIBR CWE
CARLSBAD CITY LIBR CCP
COLLEGE OF MARIN LIBR CMK
COLLEGE OF SAN MATEO LIBR CMT
FULLERTON COL LIBR CFU
GAVILAN COL LIBR GAVCL
GOLDEN GATE UNIV SCH OF LAW LIBR AE#
HUNTINGTON LIBR ART & BOTANICAL GARDEN HUV
LOS ANGELES CNTY LAW LIBR LXL
LOS ANGELES PUB LIBR LPU
LOYOLA LAW SCH LIBR LOL
LOYOLA MARYMOUNT UNIV LML
MERRITT COL O$M
NATIONAL UNIV LIBR CNU
ORANGE CNTY PUB LAW LIBR AG#
PACIFIC MCGEORGE SCH OF LAW MGSOL
PEPPERDINE UNIV, LAW LIBR CPF
SACRAMENTO CITY COL LIBR CSG
SAN DIEGO CHRISTIAN COL CHC
SAN DIEGO CNTY LAW LIBR CDL
SAN DIEGO STATE UNIV LIBR CDS
SAN FRANCISCO STATE UNIV LIBR CSF
SANTA BARBARA CITY COL LIBR SAB
SOLANO CNTY LIBR JTD
STANFORD UNIV, ROBERT CROWN LAW LIBR RCJ
UNIV OF CALIFORNIA BERKELEY LAW LIBR BOL
UNIV OF CALIFORNIA, BERKELEY CUY
UNIV OF CALIFORNIA, DAVIS, SHIELDS LIBR CUV
UNIV OF CALIFORNIA, IRVINE CUI
UNIV OF CALIFORNIA, LOS ANGELES CLU
UNIV OF CALIFORNIA, SAN DIEGO CUS
UNIV OF CALIFORNIA, SANTA BARBARA CUT
UNIV OF LA VERNE CLV
UNIV OF LA VERNE, COL OF LAW LNV
UNIV OF REDLANDS CUR
UNIV OF SAN DIEGO LEGAL RES CTR KLL
UNIV OF SAN FRANCISCO, GLEESON LIBR CUF
US COURT OF APPEALS LIBR, 9TH CIRCUIT UCK
US COURTS LIBR, SAN DIEGO UKW
WESTERN STATE UNIV COL OF LAW WST
WESTMONT COL
Thanks to http://www.calcat.org/ , a link to a California "Union Catalog".

I'm always in favor of reading history.

trinydex
01-13-2009, 3:42 PM
With respect to how the state is defined in that particular section, how about you cut and paste the origin of that statement so I can properly respond, and not have to search the many posts that we've been going back and forth on over this. Secondly, that question would be properly raised to the person that I was responding to. Lastly, it is just as easy for YOU to find out how "state" is defined within that section by doing a little search yourself. Since you're posting here, it's apparent you have a computer, which accesses the internet, which accesses some form of search engine. So find that out, and I'll respond. It's amazing how comments come as if I'm making this up, but I've provided verbatim copy & paste sections exemplifying what I'm saying and why I'm saying it. That no one has been able to show otherwise I might add. Don't get upset and snippy with me, go talk with your legislators and their attorneys.

not gonna lie, this is the longest 'no i'm not gonna tell you the answer' i've ever seen. i really only bothered to ask because you speak as though you had the answer. it was an honest question. i don't think the question would be properly raised to the person you were responding to because you were undermining his argument with that proposal. he obviously was not well versed in your eyes so why would i go to him for the answer to the question that you presumably have?

i have somehow missed the verbatim copy explaining how state is defined in that passage that you threw doubt at by proposing the examination of the definition of state.

i hope you're not thinking i'm getting snippy... i only want your opinion on what's supposed to happen. as far as this thread is concerned you're the most knowledgeable... so then, what do we do? what is the course of action? you didn't answer my other questions asking you just that.


With respect to your question as to "inflexibility in law," I don't see how you get that question as I understand "flexible" to mean able to bend easily. And if nothing else, I think "flexibility" within the law is apparent. That is the very nature of the 14thAmend and why the states had so much disdain for its introduction while debating its adoption.

i asked this question because you said "If the RULES are so flexible then why have them?" i'm really trying to understand what you're saying but you're flip flopping a bit. so is the suggestion that they're firm or that they're flexible? or that they're worthless precisely because they're flexible or that they're only useful if we nail down a firm meaning? pray tell, you're losing my feeble mind.


But, for those that are interested in the FACTS


i'm interested in facts, i was tryinna get you to drop a few more, namely the definition of state in the above passage. i'm also interested in your opinion on certain things, namely what we "should" be doing as opposed to what we are doing, since by your interpretation the current approach is not a "slam dunk"

GuyW
01-13-2009, 4:49 PM
That's the ONLY rebuttal you have? A half-reading? AGAIN the courts show you there is a DISTINCTION between being a 14thAmend "federal" citizen and one of the state, and all you can do is seize INCOMPLETELY the part of the "sentence" that you think makes you able to form an opinion as to relevance. Guess the other three or four cases besides that one showing basically same degrees of separation are relevant though, as you haven't rebutted those.

Too easy.

You seem to be under the impression that I have some obligation to wade thru all this and attempt to rebut you.

I don't.

trinydex
01-13-2009, 9:44 PM
i don't want to sound like i'm butthurt because i'm not, i was just hoping i could get some information out of this...

but it appears that he just wants to talk about what he wants to talk about, essentially a one sided discussion. he'll elaborate on things he wants to elaborate on. when he has the need to "teach" he'll do so, when things are brought up or questions are asked that don't suit his fancy... it suddenly is no longer a discussion but homework.

i was really hoping this thread would have some conclusions or definitive information... but the point seems only to be a mind ****ing of doubt pebbles thrown in our knowledge pond.

N6ATF
01-13-2009, 10:00 PM
It's the right to keep and bear arms, not the right to keep and bear expensive paperweights.

hoffmang
01-13-2009, 10:53 PM
but the point seems only to be a mind ****ing of doubt pebbles thrown in our knowledge pond.

I bowed out as I don't think there is an interest in engaging the other argument; the reaction is an appeal to his superior research without actually just making the argument from the research.

If you know better but you can't communicate it, it may not matter. It's certain that you can't be persuasive about it.

-Gene

trinydex
01-13-2009, 11:43 PM
I bowed out as I don't think there is an interest in engaging the other argument; the reaction is an appeal to his superior research without actually just making the argument from the research.

If you know better but you can't communicate it, it may not matter. It's certain that you can't be persuasive about it.

-Gene

think it's time to unsub

Nick the Sniper
01-14-2009, 12:23 AM
i hope you're not thinking i'm getting snippy... i only want your opinion on what's supposed to happen. as far as this thread is concerned you're the most knowledgeable... so then, what do we do? what is the course of action? you didn't answer my other questions asking you just that.

i'm interested in facts, i was tryinna get you to drop a few more, namely the definition of state in the above passage. i'm also interested in your opinion on certain things, namely what we "should" be doing as opposed to what we are doing, since by your interpretation the current approach is not a "slam dunk"

not gonna lie, this is the longest 'no i'm not gonna tell you the answer' i've ever seen. i really only bothered to ask because you speak as though you had the answer. it was an honest question. i don't think the question would be properly raised to the person you were responding to because you were undermining his argument with that proposal. he obviously was not well versed in your eyes so why would i go to him for the answer to the question that you presumably have?

i have somehow missed the verbatim copy explaining how state is defined in that passage that you threw doubt at by proposing the examination of the definition of state.

i hope you're not thinking i'm getting snippy... i only want your opinion on what's supposed to happen. as far as this thread is concerned you're the most knowledgeable... so then, what do we do? what is the course of action? you didn't answer my other questions asking you just that.


i asked this question because you said "If the RULES are so flexible then why have them?" i'm really trying to understand what you're saying but you're flip flopping a bit. so is the suggestion that they're firm or that they're flexible? or that they're worthless precisely because they're flexible or that they're only useful if we nail down a firm meaning? pray tell, you're losing my feeble mind.

i'm interested in facts, i was tryinna get you to drop a few more, namely the definition of state in the above passage. i'm also interested in your opinion on certain things, namely what we "should" be doing as opposed to what we are doing, since by your interpretation the current approach is not a "slam dunk"

trinydex, I apologize. I thought you were being another wiseguy, chiming in without first reading my posts and the back and forth dialogue up to this point. So I was giving you a hard time.

the reaction is an appeal to his superior research without actually just making the argument from the research.

As you can see from the above comment, instead of engaging in honest communication, a few on this forum obviously feel intimidated even though it is not my intent. As I've stated on more than one occasion.

I brought this conversation in the spirit of friendly conversation. I don't consider myself no better than the next.

The agitators, instead of concluding the line of discussion, get off point from the present issue, and when I address it, they single out other points which require further discussion, and then get testy when they find out more and more of what they weren't aware of. And apparently hate it even more that I am.

i don't want to sound like i'm butthurt because i'm not, i was just hoping i could get some information out of this...

but it appears that he just wants to talk about what he wants to talk about, essentially a one sided discussion. he'll elaborate on things he wants to elaborate on. when he has the need to "teach" he'll do so, when things are brought up or questions are asked that don't suit his fancy... it suddenly is no longer a discussion but homework.

i was really hoping this thread would have some conclusions or definitive information... but the point seems only to be a mind ****ing of doubt pebbles thrown in our knowledge pond.

First off, I don't live on Calguns.net and wait to pounce on every thing said, I do have a life. And for someone who's just coming in on page 15 of this, I find it unfair that you're making comments as you have. I'm no ones teacher as I've said a few times indirectly and directly




To answer your question. As it relates to the "civil rights" statutes, the states are necessarily defined as the "continental" 50 states. Necessarily because of the the original intent of the 14thAmend, of which the civil rights act was the precursor.

There was a class of people who's rights were not recognized, and due to their newly granted status, needed to be recognized "in the eyes of the law." In comes the 14thAmend. And "colored" them. Since these people, previously articles of commerce, came under the jurisdiction of the federal government (interstate commerce clause), but not physically in DC and "residing" within various states of the union, the originating jurisdiction, when granting colorable rights, have to protect this new "federal" citizen where ever they "reside(d)" via the 14thAmend.

With respect to the flexibility or inflexibility of the law, and I believe you asked "why have them." The issue is not so much of flexibility as it is understanding how law operates, and how this "governmental" (sic) institutions work.

The governments run on a "corporate" structure. Which is no wonder, seeing as how the original colonies were "commercial corporations." This is a FACT. Have an overview of the Law of Nations (Vattel or Puffendorf. These because these two authors shaped the opinions of those in office during those times), and also Robert's Rules of Order (because it is the bases of today's Parliamentary Law which a lot of the legal procedures are based upon. Parliamentary Law developed from the Great Council brought about by the Norman Kings who conquered England back in 1066, that had a huge influence, which is where most of what we have today (legal procedures).


The resulting federal encroachment that is prevalent now was the BIGGEST problem the states had with passing this amendment. (With all the flack over this, I hate to even talk about Dyett v. Turner where the Supreme Court of Utah's justice J. Ellet made it clear that the 14thAmend was not properly ratified do to the coercion. But, that's another story.)

What all the agitators like to avoid is the times. They believe that pen and ink were available like it is today, and 80% of the population were always employed with their own homes and educated on a mass level as we are today.

Everything has to looked at as it was, not how we "wish" them to be.

To SUMMARIZE my whole REASON for bringing this issue up in the first place was/is this. Notwithstanding the lack of awareness of it, there exists TWO (2) classes of citizenship. State and Federal. Fighting for federal rights within the states, is basically claiming to be a foreignor asking for the rights of his domicile to be recognized in the land in which he currently resides.


If the U.S. Constitution is the source and protection of all rights, why would anyone have to get them "recognized?" Why does that not seem baffling to anyone? Why, in California was the "right" to trial by jury, that we know to be "fundamental" not recognized until 196x? (see my earlier post for the exact date quoted from the court that stated it.) Especially when California finally did, it was through the 14thAmend. Does anyone REALLY believe that there was NO trial by jury from California's admission into the union in 1850 all the way until 196x? Come on!

Does that not seem a bit ODD and CRAZY? IF it doesn't why not? If one's thinking is that the U.S. Constitution is the be all end all.

Just because your representatives have sold you out, doesn't mean that it no longer exists. Because if its THAT easy, then you might as well stop fighting for the 2dAmend recognition too, because THAT will be just as easily ignored.

Also, I'm not saying the rules are "so flexible," I'm saying they have been crafted. They are not called "codes" for nothing.

[quote=Nick the Sniper]There are "special" and "general" rules, "procedural" and "substantive" rules, "status" and "classification" rules, "defined" and "undefined" rules, from which one or the other of either of the one or other may or may NOT apply. Based on the restrictions in place and the powers allowed, the rule is determined based on those considerations.

The "mind ****ing of doubt pebbles thrown in our knowledge pond" that you're talking about wasn't done by "ME." Talk to an attorney and he'll sound the same way.

Words and their meanings is how they play the game. You're hearing years of research on a couple of threads. But, when you have people that get a chip on their shoulders (not referring to you) because they feel like someone else feels like they are "teaching" them, and get emotional about it, they're going to distract away from something useful.

If I've said it once I've said it a thousand times, I engaged this for friendly conversation. But, no one wants to stay on ONE issue get it hashed out, and then move to the next. They here what they "believe" to be contradictions and shut down their minds. But if ANYONE goes and lines up ALL my posts, they'll see I'm quoting from "source." THEN line up all of the rebuttals and you'll find NOTHING, but wise cracks, insults, like ole DDT with the "you presume" nonsense, like I REALLY care that he's uninterested or whatever else he has negative to say. Again, the FACTS speak for them selves. Someone posted where the book is (thanks for that), check it out, you'll see what I'm saying is not what "I'm" saying but the people that put this into effect. The ORIGIN.

hoffmang
01-14-2009, 1:03 AM
For everyone who is attempting to follow Nick's argument i refer you to an excellent resource. It is called "Idiot Legal Arguments" and was published by the ADL. The attempt to distinguish citizenship in this manner is usually used by tax protesters. This is the section (http://www.adl.org/mwd/suss2.asp#preamble) on people supposedly not being citizens of both the state and the federal government. It's a little old on internet time but the cases it cites are generally good law.

-Gene

FreedomIsNotFree
01-14-2009, 1:14 AM
For everyone who is attempting to follow Nick's argument i refer you to an excellent resource. It is called "Idiot Legal Arguments" and was published by the ADL. The attempt to distinguish citizenship in this manner is usually used by tax protesters. This is the section (http://www.adl.org/mwd/suss2.asp#preamble) on people supposedly not being citizens of both the state and the federal government. It's a little old on internet time but the cases it cites are generally good law.

-Gene

Man, they really need to work on the formatting of that site. My argument to the State Citizen vs. Federal Citizen folks is always...if it worked, more people would know about it and take advantage of it. There is no secret citation that will relieve you from your responsibilities as a citizen.

Librarian
01-14-2009, 2:16 AM
The ADL segment is, roughly, a series of citations to cases, with a few quotations, where the multiple-citizenship-type argument has been argued (mostly in tax cases, it seems) and ruled wrong.

But it is rather difficult to read.

trinydex
01-14-2009, 12:20 PM
If the U.S. Constitution is the source and protection of all rights, why would anyone have to get them "recognized?" Why does that not seem baffling to anyone? Why, in California was the "right" to trial by jury, that we know to be "fundamental" not recognized until 196x? (see my earlier post for the exact date quoted from the court that stated it.) Especially when California finally did, it was through the 14thAmend. Does anyone REALLY believe that there was NO trial by jury from California's admission into the union in 1850 all the way until 196x? Come on!


so this part i quoted above i feel has brought this whole discussion to a head. given the information you've provided and the opinions you've expressed thus far, let's say it's not that the rights of the people did not exist (surely they do, especially if they're "natural rights" or whatever fancy labels we want to put on them). it may not even be the case that these rights were encroached upon (for whatever indeterminate time period before incorporation or any other mechanism that produces case law/amendments that "officialized" the rights)

what then do we do when they ARE encroached upon?

i'm not specifically sure from the things you've presented (perhaps i need to review a few posts) that it's invalid to pursue a state level/citizenry amending by dragging in the federal level/citezenry legal protections. is it the case that being citizens of california the federal legal protections under the BOR are not applicable and the entire 14th amendment incorporation effort is a misunderstood mechanism?

is there anything wrong with that if the mechanism gets us the end goal? are we sort of participating in some legal debauchery? sort of twisting and bending interpretations of clearly written words to get our goal?

i'm wondering if there is something we can do as california citizens (only) that could get the legislative or judiciary powers to see that we have these fundamental rights, but i'm inclined to believe (given all the anecdotal evidence) that we would never get such recognition.

the overall problem to me is, even if there is a fundamental right to protection, right to keep and bear arms, even if this right can't legitimately be taken from us by sell out politicos... if we do exercise our natural rights we will be prosecuted to the fullest extent of the law. not just that but we are coerced by the government authorities in an alphabet soup of institutions who are all working to make sure not just these laws are "followed" but of course all the other ones too... i'm not a fan of throwing out the baby with the bathwater...

just want some more thoughts on these.

Nick the Sniper
01-14-2009, 1:05 PM
Man, they really need to work on the formatting of that site. My argument to the State Citizen vs. Federal Citizen folks is always...if it worked, more people would know about it and take advantage of it. There is no secret citation that will relieve you from your responsibilities as a citizen.

Never said there was a "secret" citation that relieve "responsibilities" whatever those are.

It's funny how the courts consistently rule that the government has no duty to protect, or even warn of danger, but we have all these "responsibilities."

As far as "working" how would you know, when the only cases that get reported are the ones that go to "appeal." The ones that go to appeal are usually those that are making wide stretches of the applicable law, and they are ruled upon for what they are.

Like "taxes" for instance (since it was brought up), I don't hold, personally, that "income taxes" don't apply to anyone. There are obligations. There are liabilities. The question is are you engaged in the activity that "produces" taxable income. The U.S. Supreme Court has ruled that "income" is NOT "everything that comes in." But, since this is not the forum for that discussion I'll leave it at that. I mention it to dispel any notions that I may be a "militia" member or some freak show talking "idiot legal arguments."

More people don't know about it because of the abuses and nonsense like has been mouthed off by SOME of the members on this forum. And its always those that haven't done any PERSONAL investigation on their own. That' the good thing about the legal system, that person would be objectionable as an incompetent witness. Sounds insulting doesn't it? Well it ISN'T, it just means you don't have adequate knowledge of the testimony you are trying to give.

Which exemplifies my statements of "words and how they are defined." If you don't know what they mean according to the rules of interpretation, or how the court is going to understand them. If you're talking in English and everyone else is speaking legalese, and you're in a legal forum, you're going to get hosed.

Nick the Sniper
01-14-2009, 1:11 PM
The ADL segment is, roughly, a series of citations to cases, with a few quotations, where the multiple-citizenship-type argument has been argued (mostly in tax cases, it seems) and ruled wrong.

But it is rather difficult to read.



Ruled wrong according to how the issue or question was framed most likely. Furthermore, cases ONLY pertain to the parties to the case. That's why case decisions are used as "persuasive" evidence, and not evidence. The ONLY way you can use a case in your own case is if the FACTS are similar enough to sway the court that it should be the "law of the case."

So just because someone has brought an issue before the court that SEEMS to be similar to what you're listening to, or think are similar, it doesn't necessarily mean that the LEGAL POSITION was wrong, but maybe the LEGAL ARGUMENT.

Nick the Sniper
01-14-2009, 1:17 PM
There is a quote from a couple of law reviews (which are authored by University Law Professors - not laymen, or myself) that advocate the USE of state constitutional for protection of individual protections on one of my posts. But, here is another good one for anyone's review. From HARVARD 90 Harv. L. Rev. 489 (1977) STATE CONSTITUTIONS AND THE PROTECTION OF INDIVIDUAL RIGHTS - William J. Brennan, Jr.

Nick the Sniper
01-14-2009, 1:57 PM
so this part i quoted above i feel has brought this whole discussion to a head. given the information you've provided and the opinions you've expressed thus far, let's say it's not that the rights of the people did not exist (surely they do, especially if they're "natural rights" or whatever fancy labels we want to put on them). it may not even be the case that these rights were encroached upon (for whatever indeterminate time period before incorporation or any other mechanism that produces case law/amendments that "officialized" the rights)

what then do we do when they ARE encroached upon?

i'm not specifically sure from the things you've presented (perhaps i need to review a few posts) that it's invalid to pursue a state level/citizenry amending by dragging in the federal level/citezenry legal protections. is it the case that being citizens of california the federal legal protections under the BOR are not applicable and the entire 14th amendment incorporation effort is a misunderstood mechanism?

is there anything wrong with that if the mechanism gets us the end goal? are we sort of participating in some legal debauchery? sort of twisting and bending interpretations of clearly written words to get our goal?

i'm wondering if there is something we can do as california citizens (only) that could get the legislative or judiciary powers to see that we have these fundamental rights, but i'm inclined to believe (given all the anecdotal evidence) that we would never get such recognition.

the overall problem to me is, even if there is a fundamental right to protection, right to keep and bear arms, even if this right can't legitimately be taken from us by sell out politicos... if we do exercise our natural rights we will be prosecuted to the fullest extent of the law. not just that but we are coerced by the government authorities in an alphabet soup of institutions who are all working to make sure not just these laws are "followed" but of course all the other ones too... i'm not a fan of throwing out the baby with the bathwater...

just want some more thoughts on these.

Excellent initial statement with respect it if rights have been ACTUALLY "encroached" upon. That sums it up perfectly. It is how one is in front of the legal issue that determines the "rule of review" by the "interpreting" court. You go in under the 14thAmend as a federal citizen and you get what's coming to you.

But to address the remainder of your statements. And it in essence follows a post from another member who basically said: "Might Makes Right." I've found on here that most people are focusing too much attention on just ONE part of the problem (if you want to call it that), as opposed to looking at the whole.

Example, the courts have held that the "law" is a body. Complete and whole and should be read as such. The best that I can (at this moment in time) explain this is, it's like an outline. The outline is a topic, and each topic has its points which are expanded upon within its subject matter.

The law is written in the same manner. If you notice, in California for sure, there are always "General Provisions," and then Divisions, Parts, Sections, etc. And within some Divisions or Parts words are defined OUTSIDE of the General Provisions definitions, and therefore GOVERN the interpretation of that particular Division or Part. To read any other definition (or procedure) into that particular Part or Division from OUTSIDE of it, would fatal (legally speaking).

I say that to say this, instead of just looking at Penal Code section 12025 or 12031 themselves may land you into problems even IF you are carrying without violation of the law, why not also utilize the other protections that we have available to us. I.e. The right to remain silent, the requirements of probable cause, the requirements of a warrant (or not in certain cases), and due process of law.

Ex. I know that probable cause is tested by the courts as "FACTS (and FACTS means FACTS) articulated by the officer that give rise to "reasonable suspicion" (a legal doctrine), that the person detained was on his/her way to, or way from committing a crime.

I also, know that every contact by an LEO is NOT investigatory, they can be regular contacts, that could (knowingly or unknowingly by you) convert into a detention.

So, (A) I don't want ANY contact with an LEO, and (B) if there is contact, I'm immediately inquiring as to if there is a criminal investigation being conducted, or if the contact is casual. If the contact is casual it is deemed "in the eyes of the law" as "consensual." If it is a "criminal investigation" then I am constitutionally protected from having to speak. I.e. Witness against myself.

I also know that a warrant is constitutionally REQUIRED for ALL searches and seizures. And if a search or seizure IS conducted without a warrant there has to be "probable cause" and exigent circumstances ALLOWING for the departure of the constitutional requirement (notice I didn't say "right" - because the constitution is a RESTRICTIVE document on Govt, not grants of rights to people).

So we have all types of remedies and courses of action to take. The question is do we know enough to not get into legal jeopardy. The courts have a saying: "An objection not raised is waived." So if you don't know your rights and their restrictions, you basically have none and neither do they. Remaining silent is an objection. Not giving consent to be searched is an objection.

Another thing, because "due process" requires "notice and opportunity to respond/dispute/correct" and the law cuts both ways, I know that if an LEO is acting outside their scope of duty then they have no immunity from suit, and they must be provided with Notice and Opportunity as well. But, instead of being reactive, I rather be PRO-active, and give ADVANCE notice and opportunity.

Like with the alleged Circular put out by the LACnty D.A. regarding open carry laws. ( I say alleged because I haven't gotten "certification" from the DA YET. ) What "I" (because this is not legal advice) would do is get that circular "certified" AND "authenticated" (because then it becomes admissible evidence) by the DA's office as being a true and correct copy, by the custodian of documents of the DA's office, and then give NOTICE to the Principle LEO either by personal delivery to the office or by USPS certified mail return receipt requested, AND the face page of my notice STAMPED RECEIVED, by the PRINCIPLE LEO (or office thereof) and carry it and the one of the certified and authenticated copy of the circular issued by the DA with me. This way if I am stopped I can give NOTICE to the LEO detaining me that what I'm doing is in compliance with the applicable law, allow him to inspect if requested, and NO MORE.

Anything else, I remain quiet, I don't get into my "OPINIONS" of the law or casual conversation. Wait for the return of my firearm and then go on about my "lawful" purpose.

In this way, if I am arrested, the LEO has been put on notice by the copy of the DAs circular, as well as the copy of MY notice shown to be received by the LEO's principle, and the LEO is on the hook with NO immunity because he has made a mistake of LAW and was given notice of it by both ME and the DA (via the DAs seal (certification)). AND I have more than an excellent chance to prevail at a Penal Code sec. 1538.5 "motion to suppress" hearing.

This theoretically should lead to a quick settlement without the necessity for trial, as I wouldn't then have to go into court with a "controversy" that has to be proven. The ONLY controversy IF ANY would be "how much."

THIS IS MY TAKE, not TEACHING OR BOASTFULNESS OF GREATNESS AS SOME TRY TO HAVE OTHERS BELIEVE. This was developed by me from my research of Government Tort Liability and Immunity.

I'm not a fan of the proverbial "throwing the baby out with the bathwater either." That being said, there is always a way. I just prefer to take the rocks out of my wheel barrel and place them in someone else's.

That procedure can be done with any other legal issue as well. Give the opportunity to dispute and deny or correct, and settle the matter BEFORE going to court, then the only controversy will be if there was a duty to respond or not. If there was, then they look bad because they didn't, and if there wasn't then what the heck were they bothering me for in the first place?

Just my thoughts.

DDT
01-14-2009, 2:00 PM
the reaction is an appeal to his superior research without actually just making the argument from the research.
As you can see from the above comment, instead of engaging in honest communication, a few on this forum obviously feel intimidated even though it is not my intent. As I've stated on more than one occasion.

I have said that I would no longer debate you when you first started your ad hominem attacks but I will point out that you mis-attributed that quote to me. Though I agree wholeheartedly with it.

trinydex
01-14-2009, 3:24 PM
But to address the remainder of your statements. And it in essence follows a post from another member who basically said: "Might Makes Right." I've found on here that most people are focusing too much attention on just ONE part of the problem (if you want to call it that), as opposed to looking at the whole.

this is indeed a problem. the .gov (california state) has the might and while being 'incorrect' (with regards to rkba in its jurisdiction, this is contrasted to rkba in other states and even at the federal citizenship level) they certainly make it seem like they're right (we've been sold out). since we don't want to descend into lawlessness because we are in a discussion about the law, how do we then remedy ACTUAL encroachments on rights?


The law is written in the same manner. If you notice, in California for sure, there are always "General Provisions," and then Divisions, Parts, Sections, etc. And within some Divisions or Parts words are defined OUTSIDE of the General Provisions definitions, and therefore GOVERN the interpretation of that particular Division or Part. To read any other definition (or procedure) into that particular Part or Division from OUTSIDE of it, would fatal (legally speaking).

i believe what you're saying here is that since state (california) is sovereign dragging the federal citizenship interpretations into the state (which i believe you're saying may preempt federal) may not actually then accomplish (in specificly worded and strictly interpretted terms) the liberalization of rbka in california... would we instead appeal to california's provisions of right to protection, right to bear arms? i'll have to look up if there are such provisions in the california constitution of course...


I say that to say this, instead of just looking at Penal Code section 12025 or 12031 themselves may land you into problems even IF you are carrying without violation of the law, why not also utilize the other protections that we have available to us. I.e. The right to remain silent, the requirements of probable cause, the requirements of a warrant (or not in certain cases), and due process of law.


open carry is legal, it's currently more of an educational issue as i understand it. informing law enforcement agencies and forcing hte doj to uphold what the law IS nad not some ambiguous and emotional undergroung regulation. now the issue of concealed carry and permitting, that's a whole different story which some aspects are illegitimate yet still somehow viewed as legal and fair in the current politcal climate.

how then to combat that (once again an actual right being encroached)? i believe the movement is indeed waiting for things to fall in place, getting all the ducks in a row (information, facts, cases, people who've been denied etc) to either preempt/squash some criminal charges (if that may be the unfortunate case) or actually just outright sue for our rights. this is very similar to your example of how to deal with open carry or frivolous searches of legally transported firearms, except since scenario is that the laws actually encroach on the right there is this waiting and some amount of helplessness from the everyday joe who doesn't have the funds or time to fend off prosecution for exercising fundamental rights. boy that might thing sure is annoying!


That procedure can be done with any other legal issue as well. Give the opportunity to dispute and deny or correct, and settle the matter BEFORE going to court, then the only controversy will be if there was a duty to respond or not. If there was, then they look bad because they didn't, and if there wasn't then what the heck were they bothering me for in the first place?


is there a way to fend off prosecution of actually concealed carrying without a permit (this, in the current legislative climate is illegal)? surely they're (they is the might of the .gov) not allowed to find your gun on you unless they have some probable cause. let's not forget though, that the purpose of ccw is to be protected. let's say that the "immediate danger" clause covers you for actually using your firearm without a permit while you were carrying concealed (which i would never assume in real life) but what if you only displayed the firearm? now you have an antagonistic witness, your immediate danger can be called into question... this gets hairy and life destroying so fast i think it's a nightmare to even think about it. what can be done about this?

N6ATF
01-14-2009, 3:31 PM
/unsub

Nick the Sniper
01-14-2009, 4:05 PM
this is indeed a problem. the .gov (california state) has the might and while being 'incorrect' (with regards to rkba in its jurisdiction, this is contrasted to rkba in other states and even at the federal citizenship level) they certainly make it seem like they're right (we've been sold out). since we don't want to descend into lawlessness because we are in a discussion about the law, how do we then remedy ACTUAL encroachments on rights?

i believe what you're saying here is that since state (california) is sovereign dragging the federal citizenship interpretations into the state (which i believe you're saying may preempt federal) may not actually then accomplish (in specificly worded and strictly interpretted terms) the liberalization of rbka in california... would we instead appeal to california's provisions of right to protection, right to bear arms? i'll have to look up if there are such provisions in the california constitution of course...

In Calif. there is no specific "right to bear arms" language, but it is necessarily implied by the right to "life, liberty and property" and the "protection" there of.

And I wouldn't say "appeal" so much as I would say "demand." I've raised this issue, but the agitators would rather disprove of what I'm saying as opposed to seeing for themselves and us getting a game plan together.

It is a fact (and matter of law) that the court's consistently in all states of the union have held that LEOs "have no duty to protect." THIS is what I think can be seized upon with a few other facts, and bring an offensive action via Declaratory Relief.

No duty to protect;
Average response time;
Average reaction time;
Fundamental right to self-preservation

I believe those points are valid enough to get it done if not "concealed," definitely in favor of loaded open carry. I wouldn't care about carrying concealed (except where weather necessitates it), so long as I can loaded openly.

"[A] fundamental purpose of declaratory relief: to remove uncertainties as to legal rights and duties before breach. (5 Wltkin, Cal. Procedure (4th ed. 1997) Pleading, § 831(b), p. 289.)"

open carry is legal, it's currently more of an educational issue as i understand it. informing law enforcement agencies and forcing hte doj to uphold what the law IS nad not some ambiguous and emotional undergroung regulation. now the issue of concealed carry and permitting, that's a whole different story which some aspects are illegitimate yet still somehow viewed as legal and fair in the current politcal climate.

You really have no responsibility to "educate" they are suppose to "know" the law. ESPECIALLY LEOs.

Courts on strong policy grounds have generally refused to excuse a police officer's mistake of law." (People v. Teresinski (1982) 30 Cal.3d 822, 831, 180 Cal.Rptr. 617, 640 P.2d 753.) The court in Teresinski stated that finding the officer's mistake of law reasonable under the circumstances "would provide a strong incentive to police officers to remain ignorant of the language of the laws that they enforce and of the teachings of judicial opinions whose principal function frequently is to construe such laws and to chart the proper limits of police conduct." (Id. at p. 832, 180 Cal.Rptr. 617, 640 P.2d 753.)


how then to combat that (once again an actual right being encroached)? i believe the movement is indeed waiting for things to fall in place, getting all the ducks in a row (information, facts, cases, people who've been denied etc) to either preempt/squash some criminal charges (if that may be the unfortunate case) or actually just outright sue for our rights. this is very similar to your example of how to deal with open carry or frivolous searches of legally transported firearms, except since scenario is that the laws actually encroach on the right there is this waiting and some amount of helplessness from the everyday joe who doesn't have the funds or time to fend off prosecution for exercising fundamental rights. boy that might thing sure is annoying!

Again, providing notice to the Principle is notice to the Agent. If the top cop has notice, and one has proof with them, as well as proof from the top attorney's office, then one "should" not have to "fend off" anything. Carrying a copy from the DA and an unrebutted Notice from the HeadQtrs of the LEO, I think, strongly signals to tread lightly. And one should really, at that point, only be facing an extended time at the curb until a field supervisor is contacted that will no doubt confirm with HQ out of an abundance of caution. And if one SHOULD be arrested, I can hardly believe an attorney is going to file charges with a certified copy of the circular from the DAs office giving notice that the action taken was lawful. If they do, everybody is looking at serious civil suits, that they couldn't possibly justify or win under lawful carry of the firearms possessor.


is there a way to fend off prosecution of actually concealed carrying without a permit (this, in the current legislative climate is illegal)? surely they're (they is the might of the .gov) not allowed to find your gun on you unless they have some probable cause. let's not forget though, that the purpose of ccw is to be protected. let's say that the "immediate danger" clause covers you for actually using your firearm without a permit while you were carrying concealed (which i would never assume in real life) but what if you only displayed the firearm? now you have an antagonistic witness, your immediate danger can be called into question... this gets hairy and life destroying so fast i think it's a nightmare to even think about it. what can be done about this?

None that I would suggest daring to try. It is best to comply with the law, and if the desire is to carry concealed, bring the action within a suit for Declaratory Judgment and deal with it there BEFORE the problem happens (which is the purpose of the declaratory judgment).

With respect to having to "display" a firearm, I've always thought it best to never draw unless and until you are going to use it. The intent of the law (from the courts) is to prevent (basically) discharges of weapons at the whim of the shooter. It is to ensure that one is mindful of the seriousness of the situation, as well as the consequences. The first thing one would do in most situations of potential incoming fire is to seek cover and concealment (no pun intended). If you start receiving incoming rounds, AND the predator is STALKING you, I can't see any problems with any witnesses from a weapons display and possible well placed shots (so long as the witness and/or anyone other than the predator is within the line of fire).

Nick the Sniper
01-14-2009, 4:11 PM
I have said that I would no longer debate you when you first started your ad hominem attacks but I will point out that you mis-attributed that quote to me. Though I agree wholeheartedly with it.

If you agree, then what are your responding for, as it still applies, but now to you.

Anytime you're ready to stop being a child is okay with me. Or not.

Nick the Sniper
01-14-2009, 4:19 PM
Well, it's been real, its been fun, and its been real fun gents (it really has).

It's probably safe to say most of you will be happy to hear this, but our time (well at least mines) on this thread has come to an end.
Despite the hostility, I have to say I'm at least glad to see that there are people that are (or appear to be) willing to stand up for their natural rights, as opposed to those that just gripe and moan, or flat out roll over and take it.

Take care and good luck out there.

Semper Fi,
Nick the Sniper

Nick the Sniper
01-14-2009, 4:22 PM
A party may challenge the constitutionality of a statute, ordinance, or regulation by an action for declaratory relief. [State of California v. Superior Court, 12 Cal. 3d 237, 115 Cal. Rptr. 497, 524 P.2d 1281, 7 Env't. Rep. Cas. (BNA) 1190 (1974); Cardellini v. Casey, 181 Cal. App. 3d 389, 226 Cal. Rptr. 659 (1st Dist. 1986)] Equally, the action may be used to construe and determine the applicability of statutes, regulations, and ordinances. [LePage v. City of Oakland, 13 Cal. App. 3d 689, 91 Cal. Rptr. 806 (1st Dist. 1970)]

The plaintiff need not have violated the challenged statute, regulation, or ordinance in order to bring the action. [Chas. L. Harney, Inc. v. Contractors' State License Bd., 39 Cal. 2d 561, 247 P.2d 913 (1952)] A justiciable controversy must exist, however; declaratory relief will not be granted merely because a citizen disagrees with a statute. [Zetterberg v. State Dept. of Public Health, 43 Cal. App. 3d 657, 118 Cal. Rptr. 100 (2d Dist. 1974)]

Moreover, declaratory relief regarding statutes and ordinances will be granted only within the customary limitations on the granting of such relief on other matters. [Cardellini v. Casey, 181 Cal. App. 3d 389, 226 Cal. Rptr. 659 (1st Dist. 1986)] In deciding whether declaratory relief is appropriate in a dispute relating to a statute, the court should examine the character of the statute in question, the interests of the parties and the public in the controversy, and the adequacy of other remedies. [California Water & Tel. Co. v. Los Angeles County, 253 Cal. App. 2d 16, 61 Cal. Rptr. 618 (2d Dist. 1967)]


Issues:

LEOs have No duty to protect;
LEOs Average response time;
Average reaction time; (3 seconds to draw, 3 minimum til LEO)
Fundamental right to self-preservation

12025/12031 Are unconstitutional, and oppressive to lawful owners of firearms.

Nick the Sniper
02-04-2009, 4:30 PM
In case you didn't hear about it on the mainstream media numerous states are currently declaring sovereignty, including:

Washington
http://apps.leg.wa.gov/billinfo/summary.aspx?year=2009&bill=4009
New Hampshire
http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html
Arizona
http://www.azleg.gov/Formatdocument·asp?inDoc=/legtext/49leg/1r/bills/hcr2024p.htm
Montana
http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm
Michigan
http://www.legislature.mi.gov/(S(21rmjiv1sl0wvw55yxurwl55))/documents/2009-2010/Journal/House/pdf/2009-HJ-01-22-002.pdf
Missouri
http://www.house.mo.gov/content.aspx?info=/bills091/bills/HR212.HTM
Oklahoma
http://axiomamuse.wordpress.com/2009/01/07/state-legislator-charles-key-wants-to-limit-federal-power/
Hawaii
http://www.hawaii-nation.org/