PDA

View Full Version : Nordyke Irrelevant?


xdimitrix
02-13-2009, 6:20 PM
I remember before the Heller ruling was released, many people on here were saying how the CA constitution already incorporates the bill of rights by saying something to the effect of "the US constitution shall be the supreme law of the land." Then after the ruling came out everyone turned their attention to Nordyke.

Now obviously it would be nice for incorporation to happen for a variety of reasons, including the fact that the CA constitution could be changed later, but what is the merit to this "supreme law" legal argument? Has it ever been ruled upon in state court?

CSDGuy
02-13-2009, 6:34 PM
The California Courts, Legislators, and Law Enforcement Branches will essentially be told what the "Law of the Land" shall be. Given many of the laws about Firearms on the books, they're not going to just say "oops, we goofed. Time to get all these laws off the books as they're unconstitutional."

They're just not going to do it on their own.

DDT
02-13-2009, 9:10 PM
I remember before the Heller ruling was released, many people on here were saying how the CA constitution already incorporates the bill of rights by saying something to the effect of "the US constitution shall be the supreme law of the land." Then after the ruling came out everyone turned their attention to Nordyke.

I didn't find a reference to the US Bill of Rights in the CA constitution but since it is over 100 pages long it may have slipped by my surface searches.

However Article 1 section 1 reads:
Section 1 All men are by nature free and independent and have certain inalienable rights among which are those of enjoying and defending life and liberty acquiring possessing and protecting property and pursuing and obtaining safety and happiness... The Constitution of the State of California (http://books.google.com/books?id=bRc4AAAAIAAJ&ots=CQEz6PyiKB&dq=california%20constitution&pg=PA1&ci=114,745,834,167&source=bookclip)

Apparently firearms are not included in your right to "protecting property and ... obtaining safety" unless you are inside your home.

ke6guj
02-13-2009, 9:14 PM
I didn't find a reference to the US Bill of Rights in the CA constitution but since it is over 100 pages long it may have slipped by my surface searches.


This is what they are talking about.

ARTICLE 3 STATE OF CALIFORNIA


SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.
The thought is that that section should mean automatic incorportation.

DDT
02-13-2009, 9:27 PM
I would think so too but the problem is that without Heller there is no clear precedent that the Second Amendment is an individual right. Even after Heller there is no clear line as to what exactly the right to self-defense means. Just in the home? Anywhere your person is? Concealment of your firearm? What about edged arms vs. firearms?

It would be easy for anti-gun judges to decide such things in State Court and they would hold until we get Federal Precedence.

Even if we could win incorporation via Article 3 sec. 1 we would still need case law defining the Second more clearly. Since there are already incorporation cases working their way through the Federal courts it would moot this issue if we gain incorporation in there. If we don't get incorporation perhaps this will become a valid direction to look next.

7x57
02-13-2009, 9:37 PM
The thought is that that section should mean automatic incorportation.

Fine, I'll play devil's advocate. Is it at all clear that it means incorporation? The US Constitution is the supreme law of the land regardless of whether the BoR is incorporated. It was the supreme law of the land before the fourteenth amendment even existed. Without incorporation, the phrase naturally says something obvious and meaningful. So why does that expression require or even clearly imply incorporation?

7x57

ke6guj
02-13-2009, 9:42 PM
I don't have the knowledge to argue incorporation, just saying that the thought of some people here is that it should automatically incorporate our rights. Isn't that what we want? To have all of our US Constitutional rights be automatically binding against the state.

DDT
02-13-2009, 9:42 PM
Fine, I'll play devil's advocate. Is it at all clear that it means incorporation? The US Constitution is the supreme law of the land regardless of whether the BoR is incorporated. It was the supreme law of the land before the fourteenth amendment even existed. Without incorporation, the phrase naturally says something obvious and meaningful. So why does that expression require or even clearly imply incorporation?

7x57

Because it implies that the governmental limits on the federal government would also limit the powers of the State of California. This is not currently the case.

Perhaps that is too broad a reading of the clause but since, as you said, the constitution is the highest law in our nation there is no reason for the CA constitution to point that out unless they mean something else. What could that something else be?

glockman19
02-14-2009, 12:23 AM
I would think so too but the problem is that without Heller there is no clear precedent that the Second Amendment is an individual right. Even after Heller there is no clear line as to what exactly the right to self-defense means. Just in the home? Anywhere your person is? Concealment of your firearm? What about edged arms vs. firearms?

It would be easy for anti-gun judges to decide such things in State Court and they would hold until we get Federal Precedence.

Even if we could win incorporation via Article 3 sec. 1 we would still need case law defining the Second more clearly. Since there are already incorporation cases working their way through the Federal courts it would moot this issue if we gain incorporation in there. If we don't get incorporation perhaps this will become a valid direction to look next.

I'll add this:

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS


SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

http://www.leginfo.ca.gov/.const/.article_1

The California Constitution already gives us "inalienable rights"
The problem is our Elected officials have NO RESPECT for the constution and pervert it's menaing where they can and create legislation where they can't.

A Gun, knife, cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any flechette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.

Are these all "Dangerous weapons? or self defense tools?

When Law Enforcement has NO OBLIGATION to protect you and you have the "INEALIABLE RIGHT" to defend yourself, yet legislators have made just about every self defense tool illegal to carry, does your "inalienable right" supercede? I think so.

IF ANY COURT IN CALIFORNIA will violate your most basic rights then our contract has been breached.

Yahoo or Google "inalienable rights"

Natural and legal rights

From Wikipedia, the free encyclopedia
Some philosophers and political scientists make a distinction between natural and legal rights. Natural rights (also called moral rights or inalienable rights) are rights which are not contingent upon the laws, customs, or beliefs or a particular society or polity. In contrast, legal rights (sometimes also called civil rights or statutory rights) are rights conveyed by a particular polity, codified into legal statutes by some form of legislature, and as such are contingent upon local laws, customs, or beliefs. Natural rights are thus necessarily universal, whereas legal rights are culturally and politically relative.

Blurring the lines between natural and legal rights, U.S. statesman James Madison believed that some rights, such as trial by jury, are social rights, arising neither from natural law nor from positive law but from the social contract from which a government derives its authority.[1]

We've even made these "Inalienable Rights", "Legal Rights" by incorporating them into our constitution.

So...to answer your questions:
1) Even after Heller there is no clear line as to what exactly the right to self-defense means.
.....Self Defense clearly means the ability to defend yourself or in defense of yourself
2) Just in the home? Anywhere your person is?
.....As printed in your California Constitution, you have the "Inalienable Right" to defend yourself, your property and to obtain safety throughout the state.
3) Concealment of your firearm? What about edged arms vs. firearms?
.....All of these means of "self defense" and modes of carry have been legislated out of your ability to exercize...Police are the only true Californians allowed to fully exercize their "Inalienable Rights". A clear viloation of the 14th amendment.

7x57
02-14-2009, 1:12 AM
Because it implies that the governmental limits on the federal government would also limit the powers of the State of California. This is not currently the case.


It is not even currently the case that the governmental limits on the federal government actually limit the powers of the United States. :chris:


Perhaps that is too broad a reading of the clause but since, as you said, the constitution is the highest law in our nation there is no reason for the CA constitution to point that out unless they mean something else. What could that something else be?

Continuing as lead counsel for The Father Of Lies, let's read the clause again:


The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.


That has two clauses. The first essentially affirms membership in the United States of America, contrasted I suppose with belonging to the United States of Panglossalia (interesting place I just invented) or some other collection of states. The question seems to be, what does the second clause mean. I am going to make a pure guess that the "pro incorporation" logic is that since the narrow meaning (Constitutional supremacy in its original form) would be redundant with the first clause (the US Constitution is by definition the supreme law of the land everywhere in the United States), it must mean something else. The only obvious meaning is to incorporate the federal constitution into the state constitution.

Well, Old Scratch doesn't pay me to agree with that, so let's consider it. My initial comment was going to be that as California entered the union before the 14th amendment it seems unlikely that incorporation as a concept was knocking about; but I see that the current constitution was adopted in 1879 so that is not a problem.

My second comment was that there is a literary device whose name I can't recall where statements are affirmed somewhat redundantly in parallel independent clauses that build on each other. This reads exactly that way, and that was my instinctive reading--I had to look at it for a bit to see where the incorporation idea came from. You may object to treating a legal document in a literary way, but I don't think that is a real problem. To my ear the US Constitution sometimes has clarity problems because the authors seemed to be striving for a certain style. It has something of the flavor of my saying "I am a citizen of California, and Ahhnold is my governator." Now, strictly speaking, the second clause is redundant as it is implied by the first; however, it builds on the point by stating what was only implicit.

My third comment is to ask if this incorporation idea doesn't in fact ask for too much. Much of the federal constitution actually makes no sense as part of a state constitution; a state has no semi-sovereign constituent entities whose integrity needs protecting (unlike the case with the feds, I am told counties and other smaller units only have whatever powers the state deigns to grant them and no more), and so on. I trust nobody suggests that. So it seems we are to understand the incorporation to be specifically the BoR, not the entire constitution, yes?

The problem is, that is not what it says. It says the constitution.

Also, does the language make sense? We all know that in spite of a bunch of segregationist judges the 14A "privileges and immunities" clause is intended to incorporate the BoR--and, sure enough, it uses a somewhat opaque (to me) term of art. The CA constitution postdates the 14th; if it was intended to incorporate, would it not use the same well-known term of art? Would the sentence read something like "The State of California is an inseparable part of the United States of America, and citizens of California possess all the privileges and immunities of citizens of the United States"?

OK, I've done my best for the devil. I'm sure there will be no problem collecting my fee.....

7x57

7x57
02-14-2009, 1:18 AM
Police are the only true Californians allowed to fully exercize their "Inalienable Rights". A clear viloation of the 14th amendment.

Hmm. How would you litigate that? I am told that SCOTUS is pretty deferential to the state supreme courts in interpreting their own constitution, and I bet you anything CA has precedent saying that the right to defend life doesn't mean much. I fear you can't get relief in state court, and you can't convince the feds to take it.

That said--I actually agree that the clause clearly grants a right to self-defense, but we may already have all we can get from that. You can defend your life with force, alright, even if it isn't with the weapons of your choice. It surely means, at least, that you can use your bare hands if the state has forbidden all other weapons. In 1879 they probably didn't really mean only that, but the text doesn't really say what they probably did mean.

Sigh.

7x57

hoffmang
02-14-2009, 1:25 AM
1. The supremacy clause in the California Constitution does not incorporate the bill of rights. I'm not sure which search term will find it but it has been hashed out here before.

2. The California Supreme Court has ruled that there is no right to firearms in the California Constitution. The only way - as Don Kilmer said in the Nordyke oral arguments - that we'll get protection of a right to arms is via Federal courts.

-Gene

bwiese
02-14-2009, 7:49 AM
There are some interesting alternate paths to enforcing besides incorporation a la Nordyke, but that is at the CA-only level, and incorporation is still the best, direct method.

Plus, it can force things nationally.