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hoffmang
04-13-2009, 10:30 PM
Alan Gura filed a motion for summary judgment (http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/SJ_BRIEF.pdf) in the DC Handgun Roster case today (4/13).

It is well worth a read. The attachments (http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/) that the brief refers to can all be found here (note that E and F are quite large.)

One of my personal favorites is Exhibit D (http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/SJ_EXH_D.pdf) where BoF admits that they way they tested the LCI two firearms was to just pass it around the office...

Huge hat tip to Alan Gura. Also a hat tip to Anthonysmanifesto and Rck'n'ROll for some expedited archive and scanning assistance.

-Gene

tophatjones
04-13-2009, 10:44 PM
I'm reading this right now, excellent read!

john-e-ringo
04-13-2009, 10:45 PM
So this might be a bit a bit of a naive question. Other states are using CA laws/regs to create their laws?? I mean, as case law? (obviously, I'm not a lawyer)

I thought that we were the only ones suffering from our liberal voters...

trashman
04-13-2009, 10:50 PM
When I moved from DC to CA for work a few years ago, I grumbled inwardly that I had found yet another gun-unfriendly state to live in.

I cannot express how much it pleases me that DC's and CA's laws may go down in flames...together.

--Neill

hoffmang
04-13-2009, 11:00 PM
So this might be a bit a bit of a naive question. Other states are using CA laws/regs to create their laws??

Few other jurisdictions have borrowed our laws, but DC chose to just rely upon the CA Roster instead of building their own. Makes things a lot more fun for us. The core legal reasoning can and will be simply re-imported back into California at the appropriate time.

-Gene

yellowfin
04-13-2009, 11:02 PM
I seriously pity the other side having to attempt a rebuttal of this. To sign one's name to the insanity that would have to be conjured to argue would be quite humiliating.

peepshowal
04-13-2009, 11:07 PM
Well, I'm convinced.:D I know in the big picture that may not mean much to D.C. but what can they possibly say to argue against this?

JeffM
04-13-2009, 11:16 PM
Time-line Gene, everyone wants a time-line!






Two weeks?

tophatjones
04-13-2009, 11:17 PM
I like this, talk about cutting away all the fat and getting to the truth,:

"California’s legislature, operating in a pre-Heller environment, approached the handgun issue backwards from a constitutional, post-Heller perspective. The legislature sought to declare almost all handguns “unsafe” for failing to conform to its design preferences, or for the manufacturer’s inability or unwillingness to pay for and participate in the state’s regulatory scheme. Consciously, the state sought to “drive” the market towards its preferred outcomes. But Heller stands for the proposition that it is the regulatory environment that must accommodate itself to the choices made by the lawful, constitutionally-protected market for arms, and not the other way around." pg 16

pat038536
04-13-2009, 11:24 PM
Hopefully, this will make California throw out the roster.

kap
04-13-2009, 11:26 PM
SEG :D

This makes me happy.

FortCourageArmory
04-13-2009, 11:29 PM
Hopefully, this will make California throw out the roster.
I think the only way we rid ourselves of the hated roster is further judicial action. The state will never willingly discard it. But, having another federal circuit declare it unconstitutional is delicious is all the good ways. Once Heller is brought down to the state level, then the roster gets it in the shorts. Speaking as both a gun seller and a collector, I can't wait.

CCWFacts
04-13-2009, 11:40 PM
This is cool. Assuming that motion wins (which I think it will), it means that the moment we have incorporation, the roster evaporates into a cloud of disagreeable vapor.

JeffM
04-13-2009, 11:46 PM
still reading through it, but my favorite quote so far:

That this legislation is defiant of the Supreme Court’s decision is illustrated by its operative banning of Paul St. Lawrence’s High Standard .22 Buntline-style revolver – the exact same gun the Supreme Court ordered the city not to ban less than one year ago. This gun might not appear on the city’s list of approved handguns, but according to the Supreme Court, it appears in the Second Amendment.

thedrickel
04-13-2009, 11:54 PM
still reading through it, but my favorite quote so far:


Yeah I liked that part too. Eat that!

yellowfin
04-14-2009, 12:14 AM
Is contempt of court in play?

N6ATF
04-14-2009, 12:48 AM
Is contempt of court in play?

Contempt of court, contempt of human life, treason, you name it...

I seriously pity the other side having to attempt a rebuttal of this. To sign one's name to the insanity that would have to be conjured to argue would be quite humiliating.

Humiliation and shame don't even factor into these subhumans' lives. They have sold their souls to the devil and argue for victim disarmament and criminal safety above all else, so they can be paid millions in taxpayer dollars.

MP301
04-14-2009, 6:28 AM
:lurk5: This is very entertaining. I wonder if the powers that be in CA considered that when DC decided to use CA's Roster that it would probably result in their stupid slimy evil plan bursting into flames and crashing back down to earth. This is great stuff.

Oh yeah, whats up with Nordyke Gene? Is it two weeks yet?

ilbob
04-14-2009, 7:25 AM
Normally legal documents are tought for me to read, but Gura's stuff is often quite readable to me.

Its not just the subject matter. other 2A stuff is not anywhere near as readable.

tiki
04-14-2009, 8:08 AM
My favorite part:

Defendants’ handgun rostering program also violates basic principles of equal protection,
in that it arbitrarily makes distinctions between otherwise identical firearms, and bars some classes
of people from possessing handguns that are perfectly permissible to others. These practices
cannot survive Fifth Amendment scrutiny.

Californio
04-14-2009, 8:28 AM
Exhibit D is unbelievable.

We the chosen few have passed judgement on the unwashed masses and declared failure.

Statism at its very best:confused:

tiki
04-14-2009, 8:35 AM
I do have a problem with what he says at the bottom of page 10:

None of these characteristics render a firearm
“dangerous or unusual” or establish that it is not of the kind in common use for lawful purposes.

The decision in Heller identifies firearms that can be banned as those that are "dangerous and unusual" and not those that are dangerous or unusual. I believe that this is a crucial distinction for future cases such as an assault weapon ban. Anyone seeking to restrict access to a firearm can make the claim that it is dangerous. But, the combination of dangerous and unusual is where the test will fail. Remember the nonsense about being fired from the hip and spraying bullets without having to reload?

wash
04-14-2009, 8:35 AM
I can't see how this could fail but then again I can't understand how things managed to get this screwed up in the first place.

I've got my fingers crossed.

tiki
04-14-2009, 8:38 AM
And plainly, a gun model deemed “not unsafe” does not somehow alter its characteristics and become “unsafe” simply because a check has not been cashed in Sacramento within the year.

Ha ha ha ha.



California’s legislature, operating in a pre-Heller environment, approached the handgun
issue backwards from a constitutional, post-Heller perspective. The legislature sought to declare
almost all handguns “unsafe” for failing to conform to its design preferences, or for the
manufacturer’s inability or unwillingness to pay for and participate in the state’s regulatory
scheme. Consciously, the state sought to “drive” the market towards its preferred outcomes. But
Heller stands for the proposition that it is the regulatory environment that must accommodate
itself to the choices made by the lawful, constitutionally-protected market for arms, and not the
other way around.

I like this guy.

xxdabroxx
04-14-2009, 9:05 AM
GENE, you're awesome. Is there some way to get an email every time you start a new thread? That would be great.

Flopper
04-14-2009, 9:29 AM
Gura's awesome! he fights to protect the constitution and our rights, and he really is a hero for our cause.

God, i'd love to see him as a justice of the SCOTUS. . . oh well, one can dream. . .

sgtlmj
04-14-2009, 9:38 AM
The selection of those three handguns to fight this with was brilliant, especially considering the fact that the XD handgun being the 'wrong color' belongs to an African American woman. [Guinness Guys]Brilliant![/Guinness Guys]

yellowfin
04-14-2009, 10:16 AM
Defendants’ handgun rostering program also violates basic principles of equal protection,
in that it arbitrarily makes distinctions between otherwise identical firearms, and bars some classes
of people from possessing handguns that are perfectly permissible to others. These practices
cannot survive Fifth Amendment scrutiny. I think he means 14th, right?

Nodda Duma
04-14-2009, 10:22 AM
The arguments that Mr. Gura puts forth against DC's roster are simply ready-made to take on California's roster once incorporation is in place. It makes me wonder how familiar is Mr. Gura becoming with California laws. Familiar enough that he is interested in working with The Right People in California post-incorporation? Obviously we are already seeing cooperation on this DC case, and I wonder if that cooperation will continue. It cannot be denied that his powers of persuasion would be very helpful.

-Jason

tiki
04-14-2009, 10:27 AM
I think he means 14th, right?

From the Wiki site...


The fifth amendment prevents individuals from being punished without "due process of law." Due process extends to all persons (including non-U.S. citizens within the U.S.) and corporate entities. The Fourteenth Amendment explicitly binds the states with due process protections, through selective incorporation.

The fifth amendment applies to the federal government (see Barron v. Baltimore), and the Fourteenth Amendment, by its own terms, applies against the States. While the fifth amendment includes a due process clause, it does not include—as the fourteenth amendment does—an equal protection clause. However, in Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive," reasoned Chief Justice Earl Warren. The Court thus interpreted the fifth amendment's due process clause to include an equal protection element but has continued to hold that there is a difference between due process and equal protection in its fourteenth amendment jurisprudence.

Nodda Duma
04-14-2009, 10:31 AM
I think he means 14th, right?

5th Amendment: Here he is pointing towards due process, ie being arbitrarily denied a right. The Supreme Court ruled that this includes an equal protection element, although this is different than equal protection under the Fourteenth Amendment. It's a little too subtle for me to say what the difference is, but nevertheless the element is there in the 5th.

He does talk further about due process in his brief (ie arguing that handguns are arbitrarily added to the roster list because of the "guys in the office" test of safety features, requirement for annual renewal fee -- which really has nothing to do with safety, and Heller's pistol itself being ok while St. Lawrence's is not).

-Jason

edwardm
04-14-2009, 10:41 AM
Hmm. The 5th Amendment argument is telling. For more than just the roster.

*tapping foot, waiting for Nordyke....*

Curtis
04-14-2009, 11:31 AM
I liked this statement:

"Then there are the exceptions for movie and television production, which are not merely irrational, but also underscore the fact that unrostered handguns are so common in American culture such that audiences would not expect to see in realistic depiction of American life only those guns approved by California regulators."

I am a fan of this "smart ***" approach. An often used tactic in my dealings with building departments.

Joe
04-14-2009, 11:44 AM
this is awesome. tagged for further reading.

xxdabroxx
04-14-2009, 11:51 AM
I am a fan of this "smart ***" approach. An often used tactic in my dealings with building departments.

Darn engineering types... :nono: haha

edwardm
04-14-2009, 11:55 AM
I think he means 14th, right?

This is a Federal, not State, case. The 14th Amendment applies to the States. The Federal analog is the 5th Amendment and is therefore applicable in this case (D.C. = Federal jurisdiction).

artherd
04-14-2009, 12:58 PM
Gotta love his opener:

This case presents what is arguably the easiest Second Amendment question that might
come before a federal court today, seeing as the question has just been answered by the Supreme
Court less than a year ago: may the District of Columbia ban handguns of the kind in common use
by Americans for ordinary lawful purposes? The answer: no. Heller v. District of Columbia, 128
S. Ct. 2783 (2008)."

DDT
04-14-2009, 3:16 PM
This is cool. Assuming that motion wins (which I think it will), it means that the moment we have incorporation, the roster evaporates into a cloud of disagreeable vapor.

This motion will not bring us incorporation.

However; if the roster is killed in DC it means that the Federal Government cannot place this specific restriction on 2A rights. Once we have incorporation, if the Feds can't do it then the States/locals can't do it either and the roster falls in CA too.

hoffmang
04-14-2009, 3:32 PM
It makes me wonder how familiar is Mr. Gura becoming with California laws.
Alan Gura was a real Deputy Attorney General in California in the past (unlike some who claim to be.) Don't be confused. This is a fully joint project between Alan, SAF, and CGF. Alan chose one gun and we chose two others - both of the the ideas of various Calgunners.

Hmm. The 5th Amendment argument is telling. For more than just the roster.

*tapping foot, waiting for Nordyke....*

edwardm gets the cookie for understanding why Gura cites the 5A in this case. Due to DC being Federal, all of the substantive 14A caselaw is seen as also existing in the 5A but only in DC. If this were a California Ninth Circuit case you'd see the Fourteenth Amendment wherever you see the Fifth Amendment in the current filing.

Lastly, there was a question about one use of "dangerous or unusual" If you'll note, it is correctly cited as "dangerous and unusual" in two other places. However in the place he says "or" he really means "nor" but most folks don't apply it that way. Think "neither dangerous nor unusual." It was very consciously written that way to parallel the correct Heller test.

Nordyke in.... two weeks?

-Gene

kermit315
04-14-2009, 3:41 PM
This motion will not bring us incorporation.

However; if the roster is killed in DC it means that the Federal Government cannot place this specific restriction on 2A rights. Once we have incorporation, if the Feds can't do it then the States/locals can't do it either and the roster falls in CA too.

He isnt saying it will bring incorporation, he is saying the same thing you are.

madmike
04-14-2009, 4:02 PM
GENE, you're awesome. Is there some way to get an email every time you start a new thread? That would be great.



Me too!!!

pnkssbtz
04-14-2009, 4:08 PM
Wow... this is amazing!

Everyone who worked on this did an awesome job!

CHS
04-14-2009, 4:10 PM
I love it. There are already 4 direct or indirect cases/avenues of attack for the California Roster:

1.) NeRF'ing
2.) This case against DC
3.) Out of stater PPT exemption
4.) Residency requirements being directly challenged

The roster is already dead. It just hasn't stopped breathing yet. Give it time though.

tiki
04-14-2009, 4:26 PM
Lastly, there was a question about one use of "dangerous or unusual" If you'll note, it is correctly cited as "dangerous and unusual" in two other places. However in the place he says "or" he really means "nor" but most folks don't apply it that way. Think "neither dangerous nor unusual." It was very consciously written that way to parallel the correct Heller test.



Yeah, but he had it in quotes so I thought he was quoting from the Heller decision. I did see it correct in the two other places, just thought it was a slip.

BroncoBob
04-14-2009, 6:46 PM
The timing of this is getting exciting.

edwardm
04-14-2009, 7:09 PM
The 14th Amendment is an interesting creature. I've always preferred the "Sword and Shield" analogy to understand it's operation. It seems more often than not the 14th Amendment (having been remedial in nature, really) has operated as a shield.

I don't think any of the current generation or the generation before us ever imagined it being used as a Sword, a Hammer, a Spear, a Lead Pipe, and as a Generally Blunt and Heavy Object o' Smiting. It's nice to see that this may actually come to pass in my lifetime. :)


Alan Gura was a real Deputy Attorney General in California in the past (unlike some who claim to be.) Don't be confused. This is a fully joint project between Alan, SAF, and CGF. Alan chose one gun and we chose two others - both of the the ideas of various Calgunners.



edwardm gets the cookie for understanding why Gura cites the 5A in this case. Due to DC being Federal, all of the substantive 14A caselaw is seen as also existing in the 5A but only in DC. If this were a California Ninth Circuit case you'd see the Fourteenth Amendment wherever you see the Fifth Amendment in the current filing.

Lastly, there was a question about one use of "dangerous or unusual" If you'll note, it is correctly cited as "dangerous and unusual" in two other places. However in the place he says "or" he really means "nor" but most folks don't apply it that way. Think "neither dangerous nor unusual." It was very consciously written that way to parallel the correct Heller test.

Nordyke in.... two weeks?

-Gene

DDT
04-14-2009, 7:10 PM
He isnt saying it will bring incorporation, he is saying the same thing you are.

My Bad, I must have misread it 3 times. Time for glasses or stop posting on 4 hours or less of sleep.

BigDogatPlay
04-14-2009, 9:53 PM
The brief is a marvelous read. Mr. Gura has once again applied a good thick coat of paint to all be the tiniest of corners. The DC guys aren't going to get out of the courtroom without getting messy unless the court saves their professional bacon by granting summary judgement.

If it take two weeks or two months... this is a huge step down the road for our cause.

Well done to all!!!

KylaGWolf
04-14-2009, 10:32 PM
That is some beautiful legal writing.

luvtolean
04-14-2009, 10:33 PM
But...I thought we were losing? ;)

(Gura's tone made me do it...)

shark92651
04-15-2009, 9:30 AM
Beautiful! Excellent work Gene!

spencerhut
04-15-2009, 11:17 AM
Yes, excellent work. I am in awe of the good planning and truly deep thought our side puts into these arguments.

We should start a fund for a bronze life size Alan Gura statue. His team of people is simply amazing.

dfletcher
04-15-2009, 12:07 PM
Could it be the court would not strike down the list concept, but find fault with DC's adoption or manner of adoption of the list in whole? That is, CA's building of the list using whatever criteria an elected body deems important is acceptable but another government's simple adoption of the list in total as an expedient is not acceptable.

Does anyone see a reasonable decision that could strike down DC but not provide relief for us in CA regarding the list?

bigcalidave
04-15-2009, 12:25 PM
Say we get rid of the actual "roster"... What about the other "unsafe" handgun features? Chamber indicator, No fire without magazine present (which I hate! What if you drop the mag under stress and then can't fire that shot?) etc? What happens to those parts?

bwiese
04-15-2009, 12:31 PM
Say we get rid of the actual "roster"... What about the other "unsafe" handgun features? Chamber indicator, No fire without magazine present (which I hate! What if you drop the mag under stress and then can't fire that shot?) etc? What happens to those parts?

The Roster and what is/isn't an 'unsafe handgun' depend on all the minutiae - like SB489 LCIs and mag discos as well as drop tests, and microstamping as well (though the latter is separately dead from an intellectual property standpoint).

If the concept of 'Roster' and the concomitant concept of 'unsafe handgun that can't be sold' go away, all the subrequirements (mag disconnect, loaded chamber indicator, etc.) go away. ;)

Librarian
04-15-2009, 1:14 PM
Say we get rid of the actual "roster"... What about the other "unsafe" handgun features? Chamber indicator, No fire without magazine present (which I hate! What if you drop the mag under stress and then can't fire that shot?) etc? What happens to those parts?

bwiese got it, but to amplify: all those things you mention are written in the law as 'gating factors' to get on the Roster. If the Roster goes away, those things vanish.

Even today, if it's practical to do it mechanically, you can buy a handgun and then remove any of those 'features'; no law says the gun has to have any of them past first dealer sale.

dfletcher
04-15-2009, 2:24 PM
Alan Gura filed a motion for summary judgment (http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/SJ_BRIEF.pdf) in the DC Handgun Roster case today (4/13).

It is well worth a read. The attachments (http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/) that the brief refers to can all be found here (note that E and F are quite large.)

One of my personal favorites is Exhibit D (http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/SJ_EXH_D.pdf) where BoF admits that they way they tested the LCI two firearms was to just pass it around the office...

Huge hat tip to Alan Gura. Also a hat tip to Anthonysmanifesto and Rck'n'ROll for some expedited archive and scanning assistance.

-Gene

So to test a gun for safety - real safety, as in going "bang" when it's dropped - they contract out to independent laboratories and set specific tests and requirements with a definitive "pass/fail" and for the LCI it's a "well I don't know Iggy - what do you think?" roundtable discussion?

Given past performance, maybe they should have mailed the guns around to our "58 District Attorneys" for their collective decision.

AngelDecoys
04-15-2009, 2:36 PM
The DC guys aren't going to get out of the courtroom without getting messy unless the court saves their professional bacon by granting summary judgment.

Wait until the DC guys get Guru's bill. :thumbsup:

hoffmang
04-15-2009, 9:07 PM
So to test a gun for safety - real safety, as in going "bang" when it's dropped - they contract out to independent laboratories and set specific tests and requirements with a definitive "pass/fail" and for the LCI it's a "well I don't know Iggy - what do you think?" roundtable discussion?


As crazy as it is, that is the test set...

-Gene

q2on
04-15-2009, 10:07 PM
Links are broken :(

hoffmang
04-15-2009, 10:21 PM
Links are broken :(

Site is down due to a hard failure of the DS3 it sits on. Should be up soon as my IT team is riding our vendor.

-Gene

bwiese
04-15-2009, 11:00 PM
Should be up soon as my IT team is riding our vendor.

The Quark has his horsewhips out tonight?

hoffmang
04-15-2009, 11:07 PM
The Quark has his horsewhips out tonight?

the_quark's angry minions are cracking the whip...

-Gene