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View Full Version : How much can a single lawsuit cover?


DDT
04-22-2009, 9:47 AM
In the wake of Nordyke I was wondering how much of our 2A rights can we recover through a single action.

I've said before that I believe that many areas, firearm safety (roster), specific arms banning (NFA, now defunt 92 AWB) and dealer licensing are all areas of law fully occupied by the feds and the courts should rule for preemption.

How many things can we really pack into a single, winnable case?

Since the feds have no CCW rules (except LEOSA) there is no law to preempt CA law so it would have to be attacked directly.

Ammo tax, firearms tax etc. should fall pretty easily but again seems to require specific attacks. I would think that it is tough to apply a special tax to a constitutionally protected right. (i.e. you can tax newspapers at regular sales tax rate but you can't have a special tax just against newspapers)

Can we challenge a number of "preemption" areas in a single case?
Can we challenge a number of equal protection areas (CCW and ammo tax) in a single case?

Would trying to maximize the return per suit be worth the effort or is there an increased risk of losing because of all the different issues in a single suit?

Finally, are we better to pick a "good guy" who can create standing and filing a "clean" case or is defending someone who is being prosecuted for violating an unconstitutional law worthwhile?

7x57
04-22-2009, 9:58 AM
I'd say the opposite--the Feds aren't supposed to be regulating arms in any way beyond the militia (which I construe to mean they can specify M4's chambered in 5.56 for militia duty), and the states must consult their own constitutions as well as the 2A.

I don't want to sacrifice federalism in the name of expediency. That's what the left does.

ETA: I'd also guess that "fully occupied" has to do with the relationship between local governments and the states. The locals have no more than the state chooses to give them (unless the state consititution specifies otherwise), so the state can simply give them nothing. By contrast, we have a federal constitution that is *federal* and reserves powers to the states. So I doubt that "fully occupied" is quite the right word for how things are *supposed* to work.

Now, the magic-wish granting genie of the commerce clause may ruin all that federalism, but that's another story. I'd like a lawyer to tell me how much of the above guesswork is correct, in any case.

7x57

ilbob
04-22-2009, 11:17 AM
You would have to find a single case that covered all the elements you wanted to deal with.

DDT
04-22-2009, 1:15 PM
ETA: I'd also guess that "fully occupied" has to do with the relationship between local governments and the states.

I suspect that you are correct that "fully occupied" is the wrong wording.

I guess I am getting at the idea that there are certain limitations to the States and while we can now hold State laws up to the same scrutiny as federal laws it would be interesting to see if there is a doctrine by which we can get a ruling that no state can have more restrictive gun laws than those in federal statutes. For example, the federal government already has a process for determining which arms are to be restricted to possess, (i.e. NFA) therefore California can not infringe on our rights to any greater extent than the Feds already do.

Publius
04-22-2009, 1:27 PM
In the wake of Nordyke I was wondering how much of our 2A rights can we recover through a single action.

I've said before that I believe that many areas, firearm safety (roster), specific arms banning (NFA, now defunt 92 AWB) and dealer licensing are all areas of law fully occupied by the feds and the courts should rule for preemption.

Get someone to make a modern replica of a Mauser C96 with a 20-round magazine, import it to California, and apply for a CCW permit listing it as your carry weapon. Then you can challenge the roster, AWB, hi-cap ban, and CCW law all at once. ;)

Untamed1972
04-22-2009, 3:09 PM
My question is once a court decision has made a ruling that call certain laws on the books into question as far as the law's constitutionality then why does some have to wait to be "wronged" by that law or "charged with a crime" under that law for it to be able to brought to court. I understand the issue of "standing".

But take for example the handgun roster. Does not every citizen of CA have standing at this point to challenge it? The mere fact that I or anyone else can't go into a gun store and buy a particular gun means I have already been wronged by that law. So why can't anyone simply file a case to challenge it?

7x57
04-22-2009, 4:42 PM
I suspect that you are correct that "fully occupied" is the wrong wording.

In any case my concerns are

(1) Unacceptable loss of federalism.

(2) The more issues in one suit, the more likely we are to lose it. My understanding of our history is that we always try for the home runs and get struck out, while the antis have been pushing runners in with single after single. So why again do we want to plan another home run try?

7x57

SwissFluCase
04-22-2009, 4:47 PM
It is better to build on a solid winning streak rather than to try to win the lottery. What made Heller work was its simplicity: "I want to keep a .22 LR revolver at home. I demand a permit under the existing permitting process". We can go from there.

Regards,


SwissFluCase

RomanDad
04-22-2009, 4:57 PM
In the wake of Nordyke I was wondering how much of our 2A rights can we recover through a single action.

I've said before that I believe that many areas, firearm safety (roster), specific arms banning (NFA, now defunt 92 AWB) and dealer licensing are all areas of law fully occupied by the feds and the courts should rule for preemption.

How many things can we really pack into a single, winnable case?

Since the feds have no CCW rules (except LEOSA) there is no law to preempt CA law so it would have to be attacked directly.

Ammo tax, firearms tax etc. should fall pretty easily but again seems to require specific attacks. I would think that it is tough to apply a special tax to a constitutionally protected right. (i.e. you can tax newspapers at regular sales tax rate but you can't have a special tax just against newspapers)

Can we challenge a number of "preemption" areas in a single case?
Can we challenge a number of equal protection areas (CCW and ammo tax) in a single case?

Would trying to maximize the return per suit be worth the effort or is there an increased risk of losing because of all the different issues in a single suit?

Finally, are we better to pick a "good guy" who can create standing and filing a "clean" case or is defending someone who is being prosecuted for violating an unconstitutional law worthwhile?
Unfortunately, each is its own case...

In terms of the second question, given the history (Take a look at our big wins.... Nordyke, Heler and Harrott- all were "Good Guys", not facing criminal prosecution) I prefer the "GOOD GUYS SUE THEM" approach. If for no other reason, the plaintiff in such a case doesnt have anything to lose, unlike the defendant in a criminal case.