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Kid Stanislaus
04-29-2009, 3:50 PM
I did a search for "Roster Going Away" and came up with nothing. Somebody explain to me just how that's going to happen and why are there so many people who seem absolutely convinced that its going to happen.

DDT
04-29-2009, 3:52 PM
it is likely to happen because the roster is being challenged in DC. If it loses in DC then Nordyke (i.e. incorporation) means it's dead here.

One of the guns NOT on the roster? The gun SCOTUS forced DC to register for Heller.

Kid Stanislaus
04-29-2009, 4:06 PM
OK, now please give me more details about that challenge in DC.

wash
04-29-2009, 4:10 PM
Yes, the roster will be found to be unconstitutional in DC, then because of incorporation California FFL's will not be able to be convicted of selling an unsafe gun (they could be arrested and prosecuted I believe).

What remains to be seen is if the BOF will use scare tactics to stop importation of non-rostered handguns (like they did with OLL's) or if they will fold over right away.

About the DC case, they adopted the CA roster, a straight copy. It makes several handguns illegal to sell in DC, including the model that Dick Heller forced DC to register to him in his awesome victory.

So you can't buy a gun that SCOTUS said is protected by the second amendment. There are 2-3 other non-roster guns in the case, but they just go to show how arbitrary the roster is.

MudCamper
04-29-2009, 4:15 PM
OK, now please give me more details about that challenge in DC.

It's a sticky, just a few posts above yours:

http://www.calguns.net/calgunforum/showthread.php?t=161174

cousinkix1953
04-29-2009, 4:26 PM
Yes, the roster will be found to be unconstitutional in DC, then because of incorporation California FFL's will not be able to be convicted of selling an unsafe gun (they could be arrested and prosecuted I believe).

What remains to be seen is if the BOF will use scare tactics to stop importation of non-rostered handguns (like they did with OLL's) or if they will fold over right away.

About the DC case, they adopted the CA roster, a straight copy. It makes several handguns illegal to sell in DC, including the model that Dick Heller forced DC to register to him in his awesome victory.

So you can't buy a gun that SCOTUS said is protected by the second amendment. There are 2-3 other non-roster guns in the case, but they just go to show how arbitrary the roster is.
It just goes to show you that the list of so-called "unsafe" handguns is a fraud. Why else would LEOs get themselves exempted, so they can continue using a Saturday night special. I'm waiting for an activist lawyer, to file a wrongful death suit against a police department, which allowed it's officers to use a non-roster handgun, that injured or killed somebody. This BS will stop; when city hall has to pay out millions of $$$ to defend this big lie...

xLusi0n
04-29-2009, 5:49 PM
It doesn't mean it magically goes away here...it will be a fight. Nordyke only provides a legal basis to fight stuff...it doesn't magically make laws go away.

yellowfin
04-29-2009, 6:53 PM
Any updates on the timetable for the DC case?

JDay
04-29-2009, 7:13 PM
it is likely to happen because the roster is being challenged in DC. If it loses in DC then Nordyke (i.e. incorporation) means it's dead here.

One of the guns NOT on the roster? The gun SCOTUS forced DC to register for Heller.

I don't know about that, it could be ruled that the roster cannot be used in DC because CA doesn't have authority to write law there. All depends on the outcome of the case.

bwiese
04-29-2009, 7:20 PM
I don't know about that, it could be ruled that the roster cannot be used in DC because CA doesn't have authority to write law there. All depends on the outcome of the case.

1. CA Roster was copied to DC minus administrivia.
2. They forgot to include Dick Heller's gun, whoops!
3. Dick Heller's gun is in essence "Rostered" by the 2nd Amendment applicable
to Wash., DC and was allowed by Heller case and cannot be prohibited.
4. Other Heller-like guns are also prohibited by DC's use of Roster (trivial differences).
5. If DC Roster drops a gun, that person could lose his RKBA.
6. RKBA incorporated in CA - what's allowable in DC must be allowable in CA.
7. Since CA has equal stance to DC.... ;)

Plus more :)

cousinkix1953
04-29-2009, 7:21 PM
I don't know about that, it could be ruled that the roster cannot be used in DC because CA doesn't have authority to write law there. All depends on the outcome of the case.
No, but the DC silly council can adopt stupid laws from Kommiefornia if the want. The idea that anyone can still buy unsafe handguns, opens this whole thing up to scrutiny. I just one of the Supremes rubs it in their faces...

WokMaster1
04-29-2009, 7:59 PM
1. CA Roster was copied to DC minus administrivia.
2. They forgot to include Dick Heller's gun, whoops!
3. Dick Heller's gun is in essence "Rostered" by the 2nd Amendment applicable
to Wash., DC and was allowed by Heller case and cannot be prohibited.
4. Other Heller-like guns are also prohibited by DC's use of Roster (trivial differences).
5. If DC Roster drops a gun, that person could lose his RKBA.
6. RKBA incorporated in CA - what's allowable in DC must be allowable in CA.
7. Since CA has equal stance to DC.... ;)

Plus more :)

Do you think that some antis might read this & tell DC to change the game plan?

Sinixstar
04-29-2009, 8:15 PM
1. CA Roster was copied to DC minus administrivia.
2. They forgot to include Dick Heller's gun, whoops!
3. Dick Heller's gun is in essence "Rostered" by the 2nd Amendment applicable
to Wash., DC and was allowed by Heller case and cannot be prohibited.
4. Other Heller-like guns are also prohibited by DC's use of Roster (trivial differences).
5. If DC Roster drops a gun, that person could lose his RKBA.
6. RKBA incorporated in CA - what's allowable in DC must be allowable in CA.
7. Since CA has equal stance to DC.... ;)

Plus more :)

The problem I see with this, is that it doesn't appear to me that you can't have off-roster guns in CA. I mean, I have a PT1911, and it's perfectly legal to bring into the state. Once i'm there - if I needed money and had to sell it to one of you fine gentlemen, it would be perfectly legal. Nobody's saying you can't have it at all. What they're saying is that you can't buy it new from a dealer. Dealer's aren't allowed to import it to the state for public sale.

My understanding with DC - was that it was simply illegal to have certain guns, period. No ownership, no retail purchase, no ppt, nothing. Correct me if i'm wrong there - but that's a pretty big distinction to make.

tonelar
04-29-2009, 8:19 PM
Its too late now. They've already denied firearms based on the list.
Hence the lawsuit.

Also; someone above mentioned a list of unsafe handguns. The roster doesn't actually work that way. It's a list of safe makes and models.

ke6guj
04-29-2009, 8:25 PM
Also; someone above mentioned a list of unsafe handguns. The roster doesn't actually work that way. It's a list of safe makes and models.actually, to be anal about it, handguns are considered unsafe unless they have been tested and been found to be "not unsafe". They don't actually say that they are "safe".

Sinixstar
04-29-2009, 8:29 PM
Its too late now. They've already denied firearms based on the list.
Hence the lawsuit.

Also; someone above mentioned a list of unsafe handguns. The roster doesn't actually work that way. It's a list of safe makes and models.

What i'm getting as is that the implementation appears to be different in DC then it is in CA. Where as DC flat out banned anything not on the list - CA hasn't. It's a subtle difference, but it's enough of a difference that I think it's going to be a bit more of a fight then people make it out to be. That one subtle difference means it's not directly applicable - you're going to have to make the argument, and it very well may not fly.

You are not prohibited from owning an off-roster in gun in CA, so saying that the law is unconstitutional because it does not allow you to own an off-roster gun does not fly. Making that argument in CA would be better left to the dealers who are prohibited from importing them commercially. The average person has very little argument to make in regards to prohibition of ownership and/or use.

DDT
04-29-2009, 8:30 PM
It doesn't mean it magically goes away here...it will be a fight. Nordyke only provides a legal basis to fight stuff...it doesn't magically make laws go away.

It doesn't automagically go away but it is also not a "fight" IF the roster is unconstitutional in DC it will 90% be summary judgment here.

DDT
04-29-2009, 8:32 PM
You are not prohibited from owning an off-roster in gun in CA, so saying that the law is unconstitutional because it does not allow you to own an off-roster gun does not fly.

that's equivalent to arguing that you can own large capacity magazines in CA because if you had them before the ban went into place you could keep using them and you could always "find" them as long as there isn't a transfer.

Sinixstar
04-29-2009, 8:36 PM
that's equivalent to arguing that you can own large capacity magazines in CA because if you had them before the ban went into place you could keep using them and you could always "find" them as long as there isn't a transfer.

That's a little bit different - because hi-cap mags are completely illegal for transfer, and completely illegal for import.

Off-roster guns are not.

DDT
04-29-2009, 8:39 PM
That's a little bit different - because hi-cap mags are completely illegal for transfer, and completely illegal for import.

Off-roster guns are not.

Off roster guns are completely illegal for import unless you are first bringing them into the state if you were a resident of another state. There is an exemption for LEO but trying to use that as a way of saying they are available in the state would light up a ton of warning bells for equal protection.

RRangel
04-29-2009, 8:39 PM
Do you think that some antis might read this & tell DC to change the game plan?

LOL. Are you suggesting that the opposition in DC and their buddies suddenly become competent? I'm not holding my breath. By choosing to adopt California's laws it's apparent why their enclave is a mess.

Sinixstar
04-29-2009, 8:40 PM
I completely get what you're saying - but there's enough subtle difference that the argument will have to be made. If I had more faith in the intelligence of politicians, i would say it was by design. Sadly, I think this is just an unfortunate piece of dumb luck on their part though.

Sinixstar
04-29-2009, 8:44 PM
Off roster guns are completely illegal for import unless you are first bringing them into the state if you were a resident of another state. There is an exemption for LEO but trying to use that as a way of saying they are available in the state would light up a ton of warning bells for equal protection.

No - what makes it different is that possession, ownership, use, and transfer are not illegal.

Availability is a whole other issue all together. The question is whether or not the right to "keep and bear" is being infringed. Technically - in CA, you are not prohibited from keeping, or bearing, off-roster guns.

It's the same concept as the ban on importing FA to the US. They're not really banned. Go ahead and find me one at any sort of realistic price though. Perfectly legal to own and use - but prohibitively difficult to acquire. Same concept here. Availability isn't the issue. Ownership and use (keep and bear) is.

BigDogatPlay
04-29-2009, 9:08 PM
No - what makes it different is that possession, ownership, use, and transfer are not illegal.

Transfer from a licensee to a non-LEO is most certainly illegal.

Availability is a whole other issue all together. The question is whether or not the right to "keep and bear" is being infringed. Technically - in CA, you are not prohibited from keeping, or bearing, off-roster guns.

If you can not buy a firearm of a type commonly in use (to use Heller) from a licensee, which the state wants all sales transacted through regardless, then that is an infringement, plain and simple.

Making the argument that LEOs can buy and then transfer opens up a massive equal protection can of worms, as noted above. Besides it can almost certainly be argued that the Legislature did not intend for LEOs to purchase off roster and subsequently transfer to us, the great unwashed. And the idea that an out of state resident can bring in off roster, and then sell, while an exception to the law, would also almost certainly be outside of the intent of the Legislature.

They intend to keep us from buying perfectly good firearms based on a capricious roster with ridiculous conditions (think periodic renewal).

Tier One Arms
04-29-2009, 9:29 PM
When can we expect a decision?

cousinkix1953
04-29-2009, 9:46 PM
actually, to be anal about it, handguns are considered unsafe unless they have been tested and been found to be "not unsafe". They don't actually say that they are "safe".
Those unsafe handguns are the ones not on the list any more, or never were in the first place. The fact that these can still be sold privately or to the cops demonstrates that it is a fraud...

Sinixstar
04-29-2009, 9:49 PM
Transfer from a licensee to a non-LEO is most certainly illegal.
irrelevant. two completely different issues.

Logically - it makes very little sense. I agree with you there.
We're not talking about logic - we're talking about the law.
The difference as I understand it, and again correct me if i'm wrong is this:

DC told heller he simply was not allowed to own such and such handgun.

However,
CA makes no law restricting OWNERSHIP or POSSESSION or USE of off-roster guns.

It is NOT the same situation. How you go about acquiring an off-roster gun, or what the limitations are on transfer between FFLs and Private parties - is a completely separate issue. However, as an individual gun owner - you do not have the restrictions placed against you regarding OWNERSHIP of off-roster guns, that Heller had placed against him in DC. If you tried to make the same case in CA about off-roster guns that Heller made in DC - You probably would not have much of a case.

DDT
04-29-2009, 10:12 PM
However, CA makes no law restricting OWNERSHIP or POSSESSION or USE of off-roster guns.

I suspect this is simply going to be circular since you continue to say the exact same thing.

California is CLEARLY restricting the ownership and possession. They are not outlawing the ownership but they are restricting. Now, assuming DC's use of the roster is tossed, how the opinion is written will determine if CAs roster will stand. I don't really see it standing, you do.

Flopper
04-29-2009, 10:13 PM
It's the same concept as the ban on importing FA to the US. They're not really banned. Go ahead and find me one at any sort of realistic price though. Perfectly legal to own and use - but prohibitively difficult to acquire. Same concept here. Availability isn't the issue. Ownership and use (keep and bear) is.

this is not correct. you're right about lack of availability, but not completely right. about importing: there IS a ban.

only federal, state, and local govt and law enforcement agencies may import FA as of the GCA of 1968.

after the 1968 import ban, there was a further ban 1986 (FOPA) of ownership and use of NEW FA weapons for non-govt entities.

as a result, the supply of FA (international and domestic) available to civilians has been artificially frozen since 1986, thus the resulting inflated prices for FA.

in addition to this, not many FA licenses are currently owned by CA residents, and at present the DOJ does not issue FA licenses to ordinary citizens (except possibly to the political/social elites?).

if you want more details, go to wikipedia and search "National Firearms Act."

Sinixstar
04-29-2009, 10:14 PM
I suspect this is simply going to be circular since you continue to say the exact same thing.

California is CLEARLY restricting the ownership and possession. They are not outlawing the ownership but they are restricting. Now, assuming DC's use of the roster is tossed, how the opinion is written will determine if CAs roster will stand. I don't really see it standing, you do.

how are they restricting ownership and possession?
They're restricting commercial importation.

Coincidently that has an adverse effect on ownership and possession in terms of how readily available things are. That again, is not the issue though.

Sinixstar
04-29-2009, 10:18 PM
this is not correct. you're right about lack of availability, but not completely right. about importing: there IS a ban.

only federal, state, and local govt and law enforcement agencies may import FA as of the GCA of 1968.

after the 1968 import ban, there was a further ban 1986 (FOPA) of ownership and use of NEW FA weapons for non-govt entities.

as a result, the supply of FA (international and domestic) available to civilians has been artificially frozen since 1986, thus the resulting inflated prices for FA.

in addition to this, not many FA licenses are currently owned by CA residents, and at present the DOJ does not issue FA licenses to ordinary citizens (except possibly to the political/social elites?).

if you want more details, go to wikipedia and search "National Firearms Act."

Yea, i know that. I was illustrating a point. wasn't trying to get into the details of NFA and ClassIII.

hoffmang
04-29-2009, 10:26 PM
California is restricting acquisition of firearms that are clearly protected by the Second Amendment. I wish 'em luck on that.

-Gene

Sinixstar
04-29-2009, 10:26 PM
The thing that makes this tricky - is that we, as private individuals, are not being regulated against PURCHASING off-roster guns. We're not. The ones who are regulated are the dealers. They are not allowed to take transfer of off-roster guns, except for LE.
That said - the laws about gun rostering do not apply to us. So how do we make the case that our individual rights are being violated? We're not the subject of the law.

This is different then Heller, where an individual was explicitly denied his rights to keep and bear a handgun under the law.

This is why I said before, this would be a much easier case to make - if FFLs were the ones to challenge the law. Individuals can try to challenge it - but it's going to require a lot more connections and a lot more argument to make it happen. It's not going to be as simple as walking into a court room, quoting heller, and calling it a day.

BillCA
04-29-2009, 10:27 PM
The problem I see with this, is that it doesn't appear to me that you can't have off-roster guns in CA. I mean, I have a PT1911, and it's perfectly legal to bring into the state. Once i'm there - if I needed money and had to sell it to one of you fine gentlemen, it would be perfectly legal. Nobody's saying you can't have it at all. What they're saying is that you can't buy it new from a dealer. Dealer's aren't allowed to import it to the state for public sale.

My understanding with DC - was that it was simply illegal to have certain guns, period. No ownership, no retail purchase, no ppt, nothing. Correct me if i'm wrong there - but that's a pretty big distinction to make.

In realistic terms, D.C. wants a roster like California's. I'm not sure if they've adopted the requirement that all PPT's go through a licensed FFL or not, but it would not be surprising. But let's think about this for a moment. Suppose D.C. amends the law to allow possession of a non-rostered gun and requires a transfer to be done via an FFL.

Then, they simply continue to either deny FFL's license to operate in the district -or- put in punatively expensive security requirements. Now, in order to transfer the gun between neighbors you have to use a Virginia FFL. Oops. Sorry, but you're bringing the gun into the district from Virginia, sorry, you can't license it. Or some such nonsense.

Imagine if CA could reduce FFL's to zero in the state. There would be no way to sell off your guns within the state to another resident.

Sinixstar
04-29-2009, 10:28 PM
California is restricting acquisition of firearms that are clearly protected by the Second Amendment. I wish 'em luck on that.

-Gene

Can you quote me the law that says it's illegal for you to buy an off-roster gun? I just looked into this, and everything I saw had to do with regulating FFL's ability to import or take transfer.

Kestryll
04-29-2009, 10:29 PM
Look in to the laws on acquiring ANY handgun without going through an FFL.

Sinixstar
04-29-2009, 10:30 PM
In realistic terms, D.C. wants a roster like California's. I'm not sure if they've adopted the requirement that all PPT's go through a licensed FFL or not, but it would not be surprising. But let's think about this for a moment. Suppose D.C. amends the law to allow possession of a non-rostered gun and requires a transfer to be done via an FFL.

Then, they simply continue to either deny FFL's license to operate in the district -or- put in punatively expensive security requirements. Now, in order to transfer the gun between neighbors you have to use a Virginia FFL. Oops. Sorry, but you're bringing the gun into the district from Virginia, sorry, you can't license it. Or some such nonsense.

Imagine if CA could reduce FFL's to zero in the state. There would be no way to sell off your guns within the state to another resident.

Understood - but now we're getting into hypotheticals that would constitute a completely different set of arguments. That's not the case we're talking about at all.

Sinixstar
04-29-2009, 10:32 PM
Look in to the laws on acquiring ANY handgun without going through an FFL.

My understanding is that any PPT has to happen through an FFL. Handgun or not - no?

bellson
04-29-2009, 10:38 PM
The problem I see with this, is that it doesn't appear to me that you can't have off-roster guns in CA. I mean, I have a PT1911, and it's perfectly legal to bring into the state. Once i'm there - if I needed money and had to sell it to one of you fine gentlemen, it would be perfectly legal. Nobody's saying you can't have it at all. What they're saying is that you can't buy it new from a dealer. Dealer's aren't allowed to import it to the state for public sale.

My understanding with DC - was that it was simply illegal to have certain guns, period. No ownership, no retail purchase, no ppt, nothing. Correct me if i'm wrong there - but that's a pretty big distinction to make.

The Roster simply restricts FFL to consumer Sales, and out-of-state to FFL importation. If I own a pistol that is not on the list, and it is not C&R eligible, I can sell it to anyone (via an FFL). But it has to be a face to face transaction, with the FFL to record the event.

hoffmang
04-29-2009, 11:08 PM
Can you quote me the law that says it's illegal for you to buy an off-roster gun? I just looked into this, and everything I saw had to do with regulating FFL's ability to import or take transfer.

Query:

What happens when you win a gunbroker auction for a firearm that is not on the roster?

Let me make it simple for you. It doesn't matter how California characterizes their law. At the end of the day the people are not allowed to acquire firearms whose possession is protected by the second amendment.

Even courts understand simple things from time to time.

-Gene

Sinixstar
04-29-2009, 11:19 PM
Query:

What happens when you win a gunbroker auction for a firearm that is not on the roster?

Let me make it simple for you. It doesn't matter how California characterizes their law. At the end of the day the people are not allowed to acquire firearms whose possession is protected by the second amendment.

Even courts understand simple things from time to time.

-Gene


I got a PT - wanna buy it? Oh wait - are you saying that's illegal? Nevermind then.


It's a little more complex then you're making it out to be. Acquisition is not prohibited. It's more difficult then it may be in other places, but it is not illegal.
In terms of gunbroker auction from another state - I believe there's another thread about this floating around here somewhere. Somebody wanting to know if they can buy an off-roster gun from out of state and have it sent back. It appears there are ways of doing it legally.

bwiese
04-29-2009, 11:21 PM
Can you quote me the law that says it's illegal for you to buy an off-roster gun? I just looked into this, and everything I saw had to do with regulating FFL's ability to import or take transfer.

You cannot buy a non-Rosterde handgun (which isn't exempt due to 12133PC C&R/single-action/single-shot status) from a dealer's inventory.

The PPT transfer is only for between CA residents, and a PPT is not executable [even thru FFL] btwn a CA resident and someone who arrives here from out of state but with no CA ID.

So I could not buy/acquire Dick Heller's handgun from him unless:
(1) he died and bequested it to me;
(2) or he moves to CA/acquired CA ID;
(3) or he transfers it legally to a lineal relative of mine outside of CA, who then transfers it to me in CA;
(4) perform major modifications to it to make it 12133PC Roster-exempt [if architecturally possible]
(5) or it happens to cross the 50yr old C&R boundary;
(5) transfer as a frame ("NeRF") and then reassambly that the DOJ says is illegal [but isn't]

A gun protected by the 2nd Amendment doesn't need to jump thru weird hoops to get in my hands.

hoffmang
04-29-2009, 11:31 PM
Somebody wanting to know if they can buy an off-roster gun from out of state and have it sent back. It appears there are ways of doing it legally.

Somebody is wrong. There is no way (absent POST certification) to purchase a non-rostered, non C&R handgun from an out of state seller.

That there may be a handful of private parties that own non-rostered firearms does not change the legal analysis.

-Gene

Sinixstar
04-29-2009, 11:36 PM
You cannot buy a non-Rosterde handgun (which isn't exempt due to 12133PC C&R/single-action/single-shot status) from a dealer's inventory.

The PPT transfer is only for between CA residents, and a PPT is not executable [even thru FFL] btwn a CA resident and someone who arrives here from out of state but with no CA ID.

So I could not buy/acquire Dick Heller's handgun from him unless:
(1) he died and bequested it to me;
(2) or he moves to CA/acquired CA ID;
(3) or he transfers it legally to a lineal relative of mine outside of CA, who then transfers it to me in CA;
(4) perform major modifications to it to make it 12133PC Roster-exempt [if architecturally possible]
(5) or it happens to cross the 50yr old C&R boundary;
(5) transfer as a frame ("NeRF") and then reassambly that the DOJ says is illegal [but isn't]

A gun protected by the 2nd Amendment doesn't need to jump thru weird hoops to get in my hands.

But - can you quote the law that specifically says that you as an individual are prohibited from PURCHASING a gun?
I've seen more then a few saying dealers can't accept them for transfer, but yet to see one that says you cannot buy it.

Nevermind that what you're saying, is that it's not impossible - it's just difficult. This is a pretty big difference in terms of legal arguments. Heller's case was about the fact that he had no legal ability to own what he wanted. We do not have that restriction. We can own something off-roster if we want to.

I know i'm repeating myself - but people keep straying from the issue and tossing out these "but we shouldn't have to jump through hoops" type arguments. Jumping through hoops, and being flat out denied legally - are two vastly different things.
Heller was also able to make his case because he was the one being directly legislated against. We are not. The hoops that we have to jump through are simply side-effects of restrictions placed on FFLs - not directly against us. Again - that means it's going to be a bit more of an uphill climb to even get our foot in the door as private citizens, where as FFLs would have a much easier time in that regard.

It doesn't make sense, but - we're talking about laws, not logic.

Sinixstar
04-29-2009, 11:39 PM
Somebody is wrong. There is no way (absent POST certification) to purchase a non-rostered, non C&R handgun from an out of state seller.

That there may be a handful of private parties that own non-rostered firearms does not change the legal analysis.

-Gene

the example here is of someone who goes to Idaho, and finds a gun at a gun show he wants to buy:

There is every reason to believe that if the Idaho resident brings the gun to CA personally and shows up at the CA FFL he SHOULD be able to do a PPT transfer. The problem is that the BoF doesn't allow for this type of transfer in the computer software the dealers must use so you CAN'T do it physically but the law says you can.

hoffmang
04-29-2009, 11:41 PM
But - can you quote the law that specifically says that you as an individual are prohibited from PURCHASING a gun?
12125. (a) ... any person in this state who ... imports into the state for sale ... any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.

That means that no seller can send a non-rostered firearm in to sell to a buyer. Note that that restricts private parties from importing non-rostered firearms into the state to sell to California residents.

It doesn't make sense, but - we're talking about laws, not logic.

However sometimes the exact reverse is true. DC argued that "disassembled and/or locked" didn't mean "disassembled and/or locked" but SCOTUS understood what the law really meant...

-Gene

Sinixstar
04-29-2009, 11:41 PM
The other thing to keep in mind is that Heller left open the door for "reasonable restriction". Problem is - define "reasonable".

We still have a legal path to ownership, albeit an unlikely and difficult one.
Is it unreasonable to us? Obviously. Is it unreasonable to the courts? Dunno - how much are you willing to risk on that.

hoffmang
04-29-2009, 11:42 PM
the example here is of someone who goes to Idaho, and finds a gun at a gun show he wants to buy:

He's prohibited from buying by Federal law. State law assumes that and creates the explicit problem by requiring that a firearm must be sold through a California FFL. The law doesn't have to say something explicitly to still be implicitly unconstitutional.

-Gene

Sinixstar
04-29-2009, 11:43 PM
Originally Posted by Sinixstar
But - can you quote the law that specifically says that you as an individual are prohibited from PURCHASING a gun?



12125. (a) ... any person in this state who ... imports into the state for sale ... any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.

That means that no seller can send a non-rostered firearm in to sell to a buyer. Note that that restricts private parties from importing non-rostered firearms into the state to sell to California residents.


But again - that's limiting importation and sale. Where does it say you cannot buy one once it's here?

hoffmang
04-29-2009, 11:44 PM
Dunno - how much are you willing to risk on that.

I'm willing to bet it all.

-Gene

Sinixstar
04-29-2009, 11:44 PM
He's prohibited from buying by Federal law. State law assumes that and creates the explicit problem by requiring that a firearm must be sold through a California FFL. The law doesn't have to say something explicitly to still be implicitly unconstitutional.

-Gene

Why would he be prohibited from buying under federal law? Federal laws simply says the transfer must take place in the buyer's home state.
If the seller comes to California - what exactly is the problem (in relation to the federal law)

hoffmang
04-29-2009, 11:46 PM
But again - that's limiting importation and sale. Where does it say you cannot buy one once it's here?

California law requires the (non PPT) transfer to occur through a California FFL. No California FFL may transfer a firearm that is not on the Roster with very limited exception.

Maybe it's not clear to you but I know something about this:

http://www.hoffmang.com/firearms/dc-roster/DC-Handgun-Roster-PR-2009-03-09.pdf
http://www.hoffmang.com/firearms/dc-roster/Hanson-v-DC-Complaint-2009-03-09.pdf
http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/SJ_BRIEF.pdf

-Gene

hoffmang
04-29-2009, 11:47 PM
Why would he be prohibited from buying under federal law? Federal laws simply says the transfer must take place in the buyer's home state.
If the seller comes to California - what exactly is the problem (in relation to the federal law)

If the seller imported an unsafe handgun for sale he has violated PC 12125 and "shall be punished by imprisonment in a county jail not exceeding one year."

-Gene

Sinixstar
04-29-2009, 11:47 PM
He's prohibited from buying by Federal law. State law assumes that and creates the explicit problem by requiring that a firearm must be sold through a California FFL. The law doesn't have to say something explicitly to still be implicitly unconstitutional.

-Gene
And that conflict is something worth challenging - but that doesn't automatically mean the roster would go away?

I mean think about - what's more likely to happen. CA gets rid of the roster and opens up the flood gates to all these "unsafe" handguns, or they loosen the rules about private party transfers, on the off-off chance that somebody can convince someone at a gunshow or something from out of state to come to California to do the transfer?

I'm willing to bet if they had to choose - they'd say private party transfer from out of state is fine, but it has to be in person.

Good luck with that. Perhaps if you're right on the CA/NV border, but...

hoffmang
04-29-2009, 11:50 PM
And that conflict is something worth challenging - but that doesn't automatically mean the roster would go away?


Unconstitutional laws don't get the opportunity to be revised.

Did you read the links I gave you?

The roster is clearly unconstitutional for a wide variety of reasons. It can not be saved.

-Gene

Sinixstar
04-29-2009, 11:50 PM
California law requires the (non PPT) transfer to occur through a California FFL. No California FFL may transfer a firearm that is not on the Roster with very limited exception.

Maybe it's not clear to you but I know something about this:

http://www.hoffmang.com/firearms/dc-roster/DC-Handgun-Roster-PR-2009-03-09.pdf
http://www.hoffmang.com/firearms/dc-roster/Hanson-v-DC-Complaint-2009-03-09.pdf
http://www.hoffmang.com/firearms/dc-roster/msj-2009-04-13/SJ_BRIEF.pdf

-Gene

yes - but we were talking about private party transfer, and again - nothing legally prohibits you from BUYING a gun private party.

bwiese
04-29-2009, 11:50 PM
But - can you quote the law that specifically says that you as an individual are prohibited from PURCHASING a gun?
I've seen more then a few saying dealers can't accept them for transfer, but yet to see one that says you cannot buy it.

Disregard what most dealers say since they often full of misinformation.

12125 PC sets up the overall "Unsafe Handgun" law and generally prohibits all transfers of any unsafe handguns (i.e., not Rostered) unless the gun or transaction falls into one of a few exempt categories (LEO sales, PPT, C&R/single action/single shot exempt via 12133PC, and 12078PC CA FFL-exempt situations such as inheritance, bequest, intrafamilial or other 'operation of law' actions.)

If you actively try to get an 'unsafe handgun' from a CA FFL (outside of PPT) both of you are violating the law. If you accidentally got one, you might not be charged (but the FFL can or lose his DOJ dealer's ticket) because you may well have detrimental reliance on the agency relationship between the CA and the DOJ.

The difficulty is so great that it's not a trivial hoop. It's a mass market distorting law that doesn't allow folks to get the handgun of their choice protected by the 2nd (specifically, Heller's handgun).

ke6guj
04-29-2009, 11:52 PM
If the seller imported an unsafe handgun for sale he has violated PC 12125 and "shall be punished by imprisonment in a county jail not exceeding one year."

-Genewhich, if PPTs were allowed with the seller to use an out-of-state ID, then
12132. This chapter shall not apply to any of the following:
(a) The sale, loan, or transfer of any firearm pursuant to Section 12082 in order to comply with subdivision (d) of Section 12072. would exempt them from the 12125 prohibition.

Sinixstar
04-29-2009, 11:54 PM
also - here is the primary difference between DC and CA. taken directly from the suit filed.


D.C. Code § 7-2502.01(a) provides that “no person or organization in the District
shall possess or control any firearm, unless the person or organization holds a valid registration
certificate for the firearm.”
12. D.C. Code § 7-2502.02(a) provides that “a registration certificate shall not be
issued for . . . (5) an unsafe firearm prohibited under Section 504.”


Show me where CA code says that?

bwiese
04-29-2009, 11:56 PM
But - can you quote the law that specifically says that you as an individual are prohibited from PURCHASING a gun?
I've seen more then a few saying dealers can't accept them for transfer, but yet to see one that says you cannot buy it.

Disregard what most dealers say since they often full of misinformation.

12125 PC sets up the overall "Unsafe Handgun" law and generally prohibits all transfers of any unsafe handguns (i.e., not Rostered) unless the gun or transaction falls into one of a few exempt categories (LEO sales, PPT, C&R/single action/single shot exempt via 12133PC, and 12078PC CA FFL-exempt situations such as inheritance, bequest, intrafamilial or other 'operation of law' actions.)

If you actively try to get an 'unsafe handgun' from a CA FFL (outside of PPT) both of you are violating the law. If you accidentally got one, you might not be charged (but the FFL can or lose his DOJ dealer's ticket) because you may well have detrimental reliance on the agency relationship between the CA and the DOJ.

The difficulty is so great that it's not a trivial hoop. It's a mass market distorting law that doesn't allow folks to get the handgun of their choice protected by the 2nd (specifically, Heller's handgun).

Sinixstar
04-29-2009, 11:56 PM
which, if PPTs were allowed with the seller to use an out-of-state ID, then
would exempt them from the 12125 prohibition.

Kind of what i'm getting at.
Allow out of state PPT - or drop the gun roster. Which do you think CA would rather do?

bwiese
04-29-2009, 11:57 PM
Unconstitutional laws don't get the opportunity to be revised.

Did you read the links I gave you?

The roster is clearly unconstitutional for a wide variety of reasons. It can not be saved.

And there's no severability.

Sinixstar
04-29-2009, 11:57 PM
Disregard what most dealers say since they often full of misinformation.

12125 PC sets up the overall "Unsafe Handgun" law and generally prohibits all transfers of any unsafe handguns (i.e., not Rostered) unless the gun or transaction falls into one of a few exempt categories (LEO sales, PPT, C&R/single action/single shot exempt via 12133PC, and 12078PC CA FFL-exempt situations such as inheritance, bequest, intrafamilial or other 'operation of law' actions.)

If you actively try to get an 'unsafe handgun' from a CA FFL (outside of PPT) both of you are violating the law. If you accidentally got one, you might not be charged (but the FFL can or lose his DOJ dealer's ticket) because you may well have detrimental reliance on the agency relationship between the CA and the DOJ.

The difficulty is so great that it's not a trivial hoop. It's a mass market distorting law that doesn't allow folks to get the handgun of their choice protected by the 2nd (specifically, Heller's handgun).

Yes - and the fundamental difference between what's happening in DC and what's happening in CA - is that DC prohibits even owning/possessing an off-roster gun. No such restriction here. It's not a direct translation.

bwiese
04-29-2009, 11:59 PM
Kind of what i'm getting at.
Allow out of state PPT - or drop the gun roster. Which do you think CA would rather do?

Even if the PPT CA ID requirement were relaxed, that's still a gross and arbitrary burden -the seller has to travel to CA instead of the firearm being sent to a CA FFL from the owner (or another FFL).

Would the seller have to wear a purple hat and a unitard too? That could also be specified and is equally nonsensical.

Sinixstar
04-30-2009, 12:02 AM
Even if the PPT CA ID requirement were relaxed, that's still a gross and arbitrary burden -the seller has to travel to CA instead of the firearm being sent to a CA FFL from the owner (or another FFL).

Would the seller have to wear a purple hat and a unitard too? That could also be specified and is equally nonsensical.


It is nonsense - I agree.
However what it does is change the argument from whether or not it's flatly unconstitutional, to a debate about what is "reasonable" and what's not.
That there gets to be a very slippery slope. That's where we might "win' the battle, but lose a bigger part of the war.
It's not nearly as cut and dry as the DC case.

bwiese
04-30-2009, 12:04 AM
It is nonsense - I agree.
However what it does is change the argument from whether or not it's flatly unconstitutional, to a debate about what is "reasonable" and what's not.
That there gets to be a very slippery slope.
It's not nearly as cut and dry as the DC case.

The fact I can't buy Dick Heller's handgun from him directly (i.e, shipped to my FFL) - a specific gun whose ownership and general acquisition is specifically protected by the Supremes - is sufficient.

They don't get to "unring the law" remangle it and have a 2nd chance.

Sinixstar
04-30-2009, 12:08 AM
The fact I can't buy Dick Heller's handgun from him directly - a specific gun whose ownership and general acquisition is protected by the Supremes - is sufficient.

Well, logically, yes.
Legally - are you sure about that? Where in Heller did it say anything about your ability to buy his gun? It said he was legally protected to keep and bear his handgun in DC.

Sinixstar
04-30-2009, 12:09 AM
The fact I can't buy Dick Heller's handgun from him directly (i.e, shipped to my FFL) - a specific gun whose ownership and general acquisition is specifically protected by the Supremes - is sufficient.

They don't get to "unring the law" remangle it and have a 2nd chance.

File the lawsuit, and in the years it takes to get in front of a judge - CA passes new laws relaxing the restriction on out of state PPTs. what now?

yellowfin
04-30-2009, 12:10 AM
Well, logically, yes.
Legally - are you sure about that? Where in Heller did it say anything about your ability to buy his gun? It said he was legally protected to keep and bear his handgun in DC. :rolleyes: There is absolutely no way a legal ruling from the SCOTUS is meant to be applicable to one person only.

hoffmang
04-30-2009, 12:19 AM
Legally - are you sure about that?

Yes.

-Gene

Sinixstar
04-30-2009, 12:20 AM
:rolleyes: There is absolutely no way a legal ruling from the SCOTUS is meant to be applicable to one person only.

But again - show me where you're prohibited from owning that make and model of gun. You're not.

hoffmang
04-30-2009, 12:27 AM
But again - show me where you're prohibited from owning that make and model of gun. You're not.

You have the right to speak all you want but we'll deny you the right to buy a webserver?

You are fully and totally constructively prohibited from acquiring non-rostered firearms at retail or mail order.

Please read what "constructive" means in this context before you keep trying to make a non relevant point.

-Gene

bwiese
04-30-2009, 12:30 AM
But again - show me where you're prohibited from owning that make and model of gun. You're not.

Possession protected as a fundamental enumerated right necessarily includes a reasonable right to commerce in objects used to exercise that right.

[Freedom of speech doesn't allow a ban on laser printers, or have limits on their transfer, etc.]

A 90% ban (other than LEO/family 'leak-thrus' + PPTs) on acquiring a "common, ordinary" gun that is not "dangerous and unusual" won't pass muster. The fact that fees/taxes are required on trivially different guns and one can't buy an unrostered black one when a nickel one is Rostered also fails "The Big Smell Test".

Sinixstar
04-30-2009, 12:33 AM
You have the right to speak all you want but we'll deny you the right to buy a webserver?


You are fully and totally constructively prohibited from acquiring non-rostered firearms at retail or mail order.


Please read what "constructive" means in this context before you keep trying to make a non relevant point.

-Gene

I understand what constructive means in that context.

The problem is - you're talking about acquisition and not ownership, and you still had to qualify that with with "at retail or mailorder". There is still a path to legal ownership, and ownership it's self is still legal.

What's going on in DC may make for good support in an argument challenging CA - but it's going to be that - support. Trying to simply say "CA's laws are unconstitutional because DCs laws were unconstitutional" I don't think is going to fly. They are different laws.

hoffmang
04-30-2009, 12:35 AM
I understand what constructive means in that context.

The problem is - you're talking about acquisition and not ownership, and you still had to qualify that with with "at retail or mailorder". There is still a path to legal ownership, and ownership it's self is still legal.

What's going on in DC may make for good support in an argument challenging CA - but it's going to be that - support. Trying to simply say "CA's laws are unconstitutional because DCs laws were unconstitutional" I don't think is going to fly. They are different laws.

I don't mean to be mean, but you're being dense. Yes, CA's laws are different. However, California can not ban the sale of firearms that are protected by the 2A at retail.

Do you think California could ban the sale of the Pentagon Papers because the possession of the Pentagon Papers remains legal?

-Gene

Sinixstar
04-30-2009, 12:37 AM
Possession protected as a fundamental enumerated right necessarily includes a reasonable right to commerce in objects used to exercise that right.


Agreed - and again - that means you turn this into a debate over what's a reasonable restriction and what's not. How far is that going to get? Fine - get it tossed by the courts, and they pass some slight variation that allows for slightly more wiggle room. Continue this cycle as long as you want. Once you lose - that's it, game over. That's the restriction that's allowed, and there's probably not going to be a whole heck of a lot of challenging it until something else happens to change the game.

All i'm saying - is I don't think this is the rock-solid footing people seem to make it out to be. I see very simple ways for this to backfire - badly.

Sinixstar
04-30-2009, 12:38 AM
I don't mean to be mean, but you're being dense. Yes, CA's laws are different. However, California can not ban the sale of firearms that are protected by the 2A at retail.

Do you think California could ban the sale of the Pentagon Papers because the possession of the Pentagon Papers remains legal?

-Gene

Sale is not entirely banned. It's restricted to certain types of sale, but it is not banned entirely.

cousinkix1953
04-30-2009, 1:10 AM
this is not correct. you're right about lack of availability, but not completely right. about importing: there IS a ban.

only federal, state, and local govt and law enforcement agencies may import FA as of the GCA of 1968.

after the 1968 import ban, there was a further ban 1986 (FOPA) of ownership and use of NEW FA weapons for non-govt entities.

as a result, the supply of FA (international and domestic) available to civilians has been artificially frozen since 1986, thus the resulting inflated prices for FA.

in addition to this, not many FA licenses are currently owned by CA residents, and at present the DOJ does not issue FA licenses to ordinary citizens (except possibly to the political/social elites?).

if you want more details, go to wikipedia and search "National Firearms Act."
Some agencies don't even bother importing FAs any more. The Secret Service buys licensed copies of the UZI submachinegun which is made by Automatic Weaponry in Owensboro Kentucky instead of getting the originals from Israeli Military Industries. This has been going on since just after Bush 41' signed the executive order which banned imported assault weapons. I have gun magazines with the early 90s Automatic Weaponry advertising in them. "Born in Israel: Made in the USA"

Nodda Duma
04-30-2009, 6:30 AM
Sale is not entirely banned. It's restricted to certain types of sale, but it is not banned entirely.

I don't think anybody's arguing that point there, Sinixstar. The problem as I understand it with the roster law post-Heller and post-Incorporation is that there is a very valid argument that the handguns banned by the Roster law cannot be considered "dangerous and unusual" arms per the Heller decision. Take Mr. Heller's gun itself, for instance. It is not an unusual firearm, so there's no real standing for it to be banned. This argument can be readily extended (as the folks in this thread have been saying) to the vast majority of handguns that are not allowed into CA per the Safe Handgun roster. There are many examples of handguns denied sale to common Californians which are in widespread use outside state borders.

Now, practically speaking, at a local level yes the court system may not agree with this argument. However, once you get past California borders (court system-wise) into Circuit court or even Supreme court, the argument is an easy one. The point is that the Roster is very, very arbitrary.

-Jason

Bugei
04-30-2009, 6:50 AM
It just goes to show you that the list of so-called "unsafe" handguns is a fraud. Why else would LEOs get themselves exempted, so they can continue using a Saturday night special. I'm waiting for an activist lawyer, to file a wrongful death suit against a police department, which allowed it's officers to use a non-roster handgun, that injured or killed somebody. This BS will stop; when city hall has to pay out millions of $$$ to defend this big lie...

The time may be ripe. The S&W M&P is on the roster, I believe. But LA won't issue it until some safety issues are dealt with. I think "barrel breaks into two parts" would be considered "unsafe".

Memo from LA Sheriff's office (http://www.defensivecarry.com/vbulletin/defensive-carry-guns/76356-la-sheriffs-dept-report-wide-spread-problems-s-w-m-ps.html)

Of course, the fact that it's unconstitutional should really stake the vampire, but the fact that the guns on the safe list aren't as safe as some that aren't should provide some argument against it, anyhow.

Untamed1972
04-30-2009, 8:09 AM
But again - show me where you're prohibited from owning that make and model of gun. You're not.

I think you need to do some research and pondering on the difference between "infringement" and a "total ban".

That fact that the CA law may have a minor difference then the DC one does not change the fact that the CA law is an infringement which 2A specifically prohibits.

The fact the gun could be considered "safe" at one time, and then "not safe" later because the company failed to pay the fee to keep it on the list shows what the intent of the list really is. It is not about safety, it is about finding a way to deny CA citizens their rights. If it was safe before, how can it not be now?

And the fact that certain individuals are exempt from the list and may aquire any handgun they wish also points to the fact that the list is intended to infringe on the rights of a certain class of people within the state.

Sinixstar
04-30-2009, 8:13 AM
I don't think anybody's arguing that point there, Sinixstar. The problem as I understand it with the roster law post-Heller and post-Incorporation is that there is a very valid argument that the handguns banned by the Roster law cannot be considered "dangerous and unusual" arms per the Heller decision. Take Mr. Heller's gun itself, for instance. It is not an unusual firearm, so there's no real standing for it to be banned. This argument can be readily extended (as the folks in this thread have been saying) to the vast majority of handguns that are not allowed into CA per the Safe Handgun roster. There are many examples of handguns denied sale to common Californians which are in widespread use outside state borders.

Now, practically speaking, at a local level yes the court system may not agree with this argument. However, once you get past California borders (court system-wise) into Circuit court or even Supreme court, the argument is an easy one. The point is that the Roster is very, very arbitrary.

-Jason

You say "I don't think anybody's trying to argue that point" - but then you go on to argue that point.
Technically - an argument can be made that it's not banned. You are not prohibited from owning it. But I thought that's not what you were trying to argue in the first place?
I'll try to make it clear again for the 100th time. You are not breaking the law by owning an off-roster gun. Mr Heller was breaking the law in DC.
In fact - if my understanding of Heller is correct - Heller was breaking the law simply by owning a handgun period. Heller protected the class of guns - not his gun specifically. SC left the door wide open to continued regulation by saying things like this :

"should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

CA's roster is a qualification on the commercial sale of arms.

Handguns are not banned in CA. Specific handguns are more tightly regulated for commercial import then others, but the class of weapons (handguns) is not outright banned as with Heller.

The DC roster is being challenged because again - it tries to outright ban the ownership of off-roster guns, for no other reason then the fact that they're not on the California roster. DC's roster as I understand it has no provision for how guns can be certified by the mfg and be placed on the "safe" list. CA DOES have that process.

As for arbitrary - I think that's kind of a tough argument to make. DC's it's easier to make that argument - because they are not doing any testing or applying any sort of standard of their own making. They're simply taking CA's list and copying it, and saying "here's the list". The level of granularity in DC's list also introduces some obvious holes - as for example the Black XD is legal, but the duo-tone XD of the same caliber is not. You can't make the argument that one gun is safe and another is not simply because they're different colors. Can you point out an instance of that with the CA list? I haven't seen it.
Even with that - an argument could be made that the difference in color is a matter in difference of finish to the parts, which may or may not effect how the parts fit/interact with each other. It would be a pretty damn big stretch to make that argument, but I don't for a second think it's not a possible argument.

CA - for all it's flaws has a repeatable system of testing, and right or wrong - reasons for doing the testing in the first place.
Again you try to make that argument - and it eventually gets back to a debate about what's reasonable and what's not. Is their testing process reasonable? You and I may not think so - but the argument will still have to be made. It will not simply be a matter of walking in, quoting heller, and calling it a day. The two situations are VASTLY different.
Heller opened a door and gave some more solid legal footing for future arguments to be made - but it is NOT the end-all to the debate. Heller was a pretty black-and-white scenario. The DC law was pretty straight-forward and simple. Handguns are illegal - period. CA's laws are not that cut and dry - and it's like that on purpose.

Sinixstar
04-30-2009, 8:19 AM
I think you need to do some research and pondering on the difference between "infringement" and a "total ban".

That fact that the CA law may have a minor difference then the DC one does not change the fact that the CA law is an infringement which 2A specifically prohibits.

The fact the gun could be considered "safe" at one time, and then "not safe" later because the company failed to pay the fee to keep it on the list shows what the intent of the list really is. It is not about safety, it is about finding a way to deny CA citizens their rights. If it was safe before, how can it not be now?

That's a very easy argument to make.

Make and Model of a gun does not mean one made today will be identical to one made 5-10 years from now. It's common for subtle design changes to be made over time. I mean, look at glocks - 3 generations of the G17, but all with the same make/model. Subtle changes, but changes none-the-less.

Nodda Duma
04-30-2009, 9:00 AM
You say "I don't think anybody's trying to argue that point" - but then you go on to argue that point.


Excuse me? If you think I am arguing then you need to take a break.

Since you are apparently not satisfied with the information being given in this thread, I'll refrain from trying to help further.

-Jason

SgtDinosaur
04-30-2009, 9:02 AM
Query:

What happens when you win a gunbroker auction for a firearm that is not on the roster?

Let me make it simple for you. It doesn't matter how California characterizes their law. At the end of the day the people are not allowed to acquire firearms whose possession is protected by the second amendment.

Even courts understand simple things from time to time.

-Gene

This issue is messing with me right now. I want to buy a S&W 1076, which is off-list. I can't find anyone in California with one to sell me, yet there is one on Gunbroker that will ship to California. No problem if it was on-list, but problem since it is off. The 1076 is obviously not "unsafe". I now officially hate this POS law.

Sinixstar
04-30-2009, 9:15 AM
Excuse me? If you think I am arguing then you need to take a break.

Since you are apparently not satisfied with the information being given in this thread, I'll refrain from trying to help further.

-Jason

I wasn't trying to imply that you were being an idiot.


ar·gue (ärgy)
v. ar·gued, ar·gu·ing, ar·gues
v.tr.
1. To put forth reasons for or against; debate: "It is time to stop arguing tax-rate reductions and to enact them" Paul Craig Roberts.
2. To attempt to prove by reasoning; maintain or contend: The speaker argued that more immigrants should be admitted to the country.
3. To give evidence of; indicate: "Similarities cannot always be used to argue descent" Isaac Asimov.
4. To persuade or influence (another), as by presenting reasons: argued the clerk into lowering the price.
v.intr.
1. To put forth reasons for or against something: argued for dismissal of the case; argued against an immediate counterattack.
2. To engage in a quarrel; dispute.

Untamed1972
04-30-2009, 9:29 AM
That's a very easy argument to make.

Make and Model of a gun does not mean one made today will be identical to one made 5-10 years from now. It's common for subtle design changes to be made over time. I mean, look at glocks - 3 generations of the G17, but all with the same make/model. Subtle changes, but changes none-the-less.


And the fact that certain individuals are exempt from the list and may aquire any handgun they wish also points to the fact that the list is intended to infringe on the rights of a certain class of people within the state.

I think the fact they CA left certain little "loopholes" open for PPT's or private persons bringing in them from out of state just shows that CA was being a little "smarter" by not going the "ouright ban" route in an attempt to avoid rasing legal challenges. It doesn't mean that the law as it is now is not still illegal, they were just trying to be more sly about how they went about it.

Why is an "unsafe handgun" anymore safe in the hands of a LEO then it is in the home of a private citizen? If the "drop test" is really a concern who is more likely to drop their hand gun....a private citizen who physically handles his perhaps a few times a month, or a LEO who carries it around everyday, has to run and chase people and jump over fences, get into physical altercations with suspects and so on?

The list is simply an incrimental move towards total disarmament. What's next, limitations on caliber size because bigger calibers do more damage? Grain weight of cartridges? Limitation on the total amount of ammo you're allowed to posess at any one time? Because you only need a few rounds for home defense right! Total number of guns you're allowed to own? Because no one needs 20 guns right?

Untamed1972
04-30-2009, 9:32 AM
That's a very easy argument to make.

Make and Model of a gun does not mean one made today will be identical to one made 5-10 years from now. It's common for subtle design changes to be made over time. I mean, look at glocks - 3 generations of the G17, but all with the same make/model. Subtle changes, but changes none-the-less.

I would also ask.....if Glock put the gen1 G17 on the roster and kept paying the fee every year to keep it current, did they have to resubmit the gun for testing for the Gen2 & 3 or did it simply stay on the list because it always was?

If so....that would defeat your argument. Because if the Gen2 & 3 changes were such that it would make the gun fail the test that would mean you know have unsafe guns on the list would it not? Or at least untested guns.

Flopper
04-30-2009, 9:47 AM
Yea, i know that. I was illustrating a point. wasn't trying to get into the details of NFA and ClassIII.

no, clearly you didn't know, since you wrote:

"It's the same concept as the ban on importing FA to the US. They're not really banned. Go ahead and find me one at any sort of realistic price though. Perfectly legal to own and use."

importation of FA for civilian ownership IS banned. in addition, ownership of FA in CA is de facto banned because the DOJ does not issue dangerous weapons permits.

yes, you were ATTEMPTING to illustrate a point, but your attempt was strewn with misinformation and half-truths, which necessarily invalidates your line of reasoning.

posting incorrect information does not help our cause or calguns readers, so correcting mistakes is imperative.

bwiese
04-30-2009, 10:03 AM
I would also ask.....if Glock put the gen1 G17 on the rooster and kept paying the fee every year to keep it current, did they have to resubmit the gun for testing for the Gen2 & 3 or did it simply stay on the list because it always was?

If so....that would defeat your argument. Because if the Gen2 & 3 changes were such that it would make the gun fail the test....

This will also be a huge problem for DOJ.

There are huge changes from GenI to II to III for Glocks. Because the grip is part of the frame a grip change is a frame change and in fact many other such changes to the Glock frames were made over the generations - they are not due to appearance/styling but for strengthening/ rigidity+ frame anti-flex reinforcement for failure reduction + slide retention. These are substantive changes that would be required of any other gun mfgr because those guys change their models or submodels when such a change is made. Any change to a gun from is originally-approved Rostered status requires reapparoval/retesting. Glock would NOT have made these numerous generational changes (aside from grip stipling vs finger bumps) unless there were reliability or production reasons.

So the DOJ allows a substantively different gun to stay Rostered because the model # didn't change, but requires separate Rostering because a gun is parkerized instead of being blued.

Untamed1972
04-30-2009, 10:28 AM
This will also be a huge problem for DOJ........


So the DOJ allows a substantively different gun to stay Rostered because the model # didn't change, but requires separate Rostering because a gun is parkerized instead of being blued.


So then what manufacturers should do is just call EVERYTHING by the same model # and just think of a different way to differentiate the various "models" and they can roster one gun and pay one fee for everything they make! :thumbsup:

From now on everything is a Glock G17! So then a .45acp would be "unoffically" called the G17 Whopper and 9mm would be the G17 Whopper Jr. and the .40 would be the G17 Jr. Bacon Cheeseburger! LOL

USAFTS
04-30-2009, 1:44 PM
The other thing to keep in mind is that Heller left open the door for "reasonable restriction". Problem is - define "reasonable".

We still have a legal path to ownership, albeit an unlikely and difficult one.
Is it unreasonable to us? Obviously. Is it unreasonable to the courts? Dunno - how much are you willing to risk on that.

I disagree, partially. An unlikely and difficult path to ownership IS INFRINGMENT as far as I am concerned, (and as written). I think the problem is that "infringement" needs to be defined. (As if it does not speak for itself). Once the SCOTUS determines what constitutes infringement, "reasonable" will pretty much be anything that does not actually cross the line of legally defined infringement as it applies to the 2nd Amendment. Fighting for a "reasonable" definition of "reasonable" should be an interesting task.

wash
04-30-2009, 4:11 PM
Where in Heller did it say anything about your ability to buy his gun? It said he was legally protected to keep and bear his handgun in DC.

SCOTUS said that Dick Heller had a right to own and register his revolver in Washington D.C. because the second amendment to the constitution said so. Nordyke vs. King said that the second amendment is an individual right that state and local governments have to respect.

So SCOTUS said his revolver is legal and the 9'th circuit court said that what's legal for Dick Heller is legal for us. And the California gun laws say that if Dick Heller want's to sell his second amendment protected revolver to a resident of California (who also has second amendment right) he can't do it without breaking California law or moving to California (except for the fact that it might be a curio after it's legal battles).

Even if Dick Heller's gun is a curio, what about someone in another state with a gun of similar make and model? He can't sell it to a California resident and there is no possibility of it being a curio.

Beyond commerce, where is the equal protection?

I'm not a lawyer but I think I'm using those terms correctly.

cousinkix1953
04-30-2009, 5:27 PM
The time may be ripe. The S&W M&P is on the roster, I believe. But LA won't issue it until some safety issues are dealt with. I think "barrel breaks into two parts" would be considered "unsafe".

Memo from LA Sheriff's office (http://www.defensivecarry.com/vbulletin/defensive-carry-guns/76356-la-sheriffs-dept-report-wide-spread-problems-s-w-m-ps.html)

Of course, the fact that it's unconstitutional should really stake the vampire, but the fact that the guns on the safe list aren't as safe as some that aren't should provide some argument against it, anyhow.
An unsafe handgun would never have been on that roster in the first place. Repeatedly submitting the same product for testing sounds more like a mafia shakedown. It smells like paying a bribe to me...

cousinkix1953
04-30-2009, 5:48 PM
I think you need to do some research and pondering on the difference between "infringement" and a "total ban".

That fact that the CA law may have a minor difference then the DC one does not change the fact that the CA law is an infringement which 2A specifically prohibits.

"Exactly right. Would they prefer that we buy handguns off the books with no guarantee that somebody will register them? Some will forget. Others don't have $19.00 and few consider registering their guns to be an abuse of Big Brother's powers."

The fact the gun could be considered "safe" at one time, and then "not safe" later because the company failed to pay the fee to keep it on the list shows what the intent of the list really is. It is not about safety, it is about finding a way to deny CA citizens their rights. If it was safe before, how can it not be now?

"The only way to determine whether a firearm has become unsafe is through legal action or a lawsuit. You've heard of product recalls from the manufacturer too. Failing to pay an annual kickback, only proves that the attorney general is no better than the head of crime syndicate, whose goons demand protection $$$ from merchants or put them out of business."

And the fact that certain individuals are exempt from the list and may aquire any handgun they wish also points to the fact that the list is intended to infringe on the rights of a certain class of people within the state.

"Nobody should have an unsafe handgun if that is the true intent of the law. Lawyers should target law enforcement agencies and officers who shoot people with off-roster handguns. It's time to bankrupt them with wrongful death lawsuits and discourage this BS.

If they cannot pack a .22 caliber rat gun as an official duty weapon; then there should be a law against buying them with a badge and avoiding federal excise taxes as well."

hoffmang
04-30-2009, 6:23 PM
http://www.calguns.net/calgunforum/showthread.php?t=179227

-Gene

cal_ar_shooter
04-30-2009, 7:53 PM
This calls for a donation...

Keep it coming guys.

Sinixstar
04-30-2009, 9:39 PM
And the fact that certain individuals are exempt from the list and may aquire any handgun they wish also points to the fact that the list is intended to infringe on the rights of a certain class of people within the state.

I think the fact they CA left certain little "loopholes" open for PPT's or private persons bringing in them from out of state just shows that CA was being a little "smarter" by not going the "ouright ban" route in an attempt to avoid rasing legal challenges. It doesn't mean that the law as it is now is not still illegal, they were just trying to be more sly about how they went about it.

Why is an "unsafe handgun" anymore safe in the hands of a LEO then it is in the home of a private citizen? If the "drop test" is really a concern who is more likely to drop their hand gun....a private citizen who physically handles his perhaps a few times a month, or a LEO who carries it around everyday, has to run and chase people and jump over fences, get into physical altercations with suspects and so on?

The list is simply an incrimental move towards total disarmament. What's next, limitations on caliber size because bigger calibers do more damage? Grain weight of cartridges? Limitation on the total amount of ammo you're allowed to posess at any one time? Because you only need a few rounds for home defense right! Total number of guns you're allowed to own? Because no one needs 20 guns right?

That's exactly what they were trying to do. Again - as the DC law is extremely black and white "No handguns period" - the CA laws are full of technicalities, complexities, exceptions, exemptions, etc.
The reason for that is to create a situation where if you want to challenge it - you're going to have to dig through the nitty-gritty details point by point and show how the system as a whole creates a "constructive ban" (to use a phrase thrown out by Gene). That's a lot more difficult to do.

As for the LEO argument - it could be argued that LEOs receive a higher level of training, constant supervision from their superiors, and regularly have to demonstrate their capabilities. Thus lowering the risk. Whether or not that's true....

Sinixstar
04-30-2009, 9:42 PM
I would also ask.....if Glock put the gen1 G17 on the roster and kept paying the fee every year to keep it current, did they have to resubmit the gun for testing for the Gen2 & 3 or did it simply stay on the list because it always was?

If so....that would defeat your argument. Because if the Gen2 & 3 changes were such that it would make the gun fail the test that would mean you know have unsafe guns on the list would it not? Or at least untested guns.

That could actually work in CA's favor though.
If you're trying to argue that CA is being unreasonable and simply trying to make things difficult for gun mfg's and retailers - CA could turn around and say that the reason why they require retesting and resubmitting after a length of time, and not after every minor revision - is to extend a gesture of good faith to manufacturers who have shown that they are capable and knowledgeable in complying with CA laws. They could argue that they chose to reexamine after a time period to AVOID putting an undo burden on mfg's - and give them the benefit of the doubt once they've shown competence in CA law.
You and I may know that's BS - but, prove it.

Sinixstar
04-30-2009, 10:04 PM
Look - here's the breakdown as I see it.

Heller essentially makes two main points that apply here.

1) Government entities cannot ban an entire class of weapons that are commonly in use, with the exception of truly dangerous and unusual types of weapons.

2) Government can however place restrictions on prohibited persons, possession in sensitive areas, and requirements and qualifications for commercial sale.

So - based on that. Let's apply the CA law to those two main points.

1) Does California law ban an entire class of weapons through the handgun roster. In this case - we are talking about handguns, and obviously the answer is no. The entire class of firearms known as handguns - are not banned.

2) Does the California law overstep it's boundaries in placing restrictions on prohibited persons, carrying in sensitive places, or restrictions and qualifications on commercial sale? Is it "unreasonable"?
Well - let's first look at the definition of reasonable:


reasonable adj., adv. in law, just, rational, appropriate, ordinary or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities.


This is where I've repeated myself a handful of times. This is where it gets really sticky. You essentially have to prove that the CA Roster is irrational. Both Heller and Nordyke left the door open for states to impose restrictions on firearms possession based on concerns for public safety. Nordyke I believes mentions this explicitly in outlining that the County has the right to prohibit firearms in public spaces (it's own property) as a matter of ensuring a safe and secure public environment. Is that a direct translation to "CA can tell you what guns you can or can't have?" obviously not. However it does set a standard that says the state has some wiggle room in the name of public safety.
That said - If California can show that the guidelines for rostering are applied fairly, There is a mechanism in place for manufacturers to address rostering issues openly, have a basis in objective scientific testing and analysis - it's going to be hard to beat. Nordyke affirms a state's ability to regulate in the name of public safety, and Heller explicitly outline's a state's ability to place reasonable restrictions and qualifications on commercial sale.

So - if the CA roster does not rise to the level of creating a ban on an entire class of weapons, and the restrictions they have placed on commercial sale (as protected by heller) are found to be reasonable - you lose.
That's the way I see it.

Kinda done repeating myself now. I know somebody's going to come along and yell about PPT or out of state transfer or something else. Don't care. Those issues are completely secondary to challenging the CA Roster - and using Heller and/or Nordyke as the basis for the argument.

hoffmang
04-30-2009, 10:33 PM
Sin,

I understand that your very literal mind thinks some of us posting in this thread are incorrect.

However, I posted a link to an actual complaint from Alan Gura, Don Kilmer, and Jason Davis who differ with your analysis.

Heller said that common firearms are protected under the Second Amendment. For a handgun to make the Roster, it has to be definitionally uncommon since firearms with LCIs and Magazine Disconnects are less than 15% of the firearms for sale in the United States. The state can't prohibit you from acquiring arms that are common and that is what the roster does. Constructive prohibition is still prohibition.

The rest of your argument is explaining how one can exercise loopholes to acquire guns deemed unsafe by the state - a process that has no rational basis...

-Gene

hoffmang
04-30-2009, 10:34 PM
Well - let's first look at the definition of reasonable:


I missed this a moment ago. You are aware that Heller specifically rejected rational basis analysis, right?

-Gene

Sinixstar
04-30-2009, 10:58 PM
I missed this a moment ago. You are aware that Heller specifically rejected rational basis analysis, right?

-Gene

Honestly - no. That tends to be the standard.

To what test do you argue restrictions and qualifications of commercial sales then?


Also - I read the DC case documents. This seems to sort of be the meat and potatos of the argument:


Defendants’ adoption of the California approved handgun roster violates Plaintiffs’
rights to equal protection of the law as guaranteed by the Fifth Amendment to the United States
Constitution, in that Defendants allow some people access to handguns barred to plaintiffs, and
otherwise make arbitrary, capricious, irrational, and otherwise unjustifiable distinctions among the
handguns that Defendants deign to allow Plaintiffs in Plaintiffs’ exercise of fundamental Second
Amendment rights. Defendants are thereby propagating customs, policies, and practices that
violate the Fifth Amendment to the United States Constitution, facially and as applied against the
individual plaintiffs in this action, damaging plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs
are therefore entitled to permanent injunctive relief against such customs, policies, and practices.


Part of the issue with this though - is that starting at Paragraph 41 exceptions and exemptions to the CA Roster that do not appear in the DC Roster are enumerated.


without the intention of selling it, nor is it illegal in
California to possess or use an unrostered handgun that is otherwise lawful to possess or use.
43. California Penal Code § 12132 provides various exemptions from the approved
handgun roster requirements, including private party transfers, intra-familial transfers including
gifts and bequests, various loans, and handguns used in Olympic sports.
44. California Penal Code § 12133 exempts from the approved handgun roster
requirements single-action revolvers manufactured prior to 1900 that qualify as curios or relics,
9
single-action revolvers longer than 7 ½ inches with a minimum 5-cartridge capacity, and singleshot
pistols with a minimum barrel length of 6 inches and minimum overall length of 10 ½ inches.


It's interesting, because they mention some of the EXACT same points I brought up. That possession and transfer is NOT illegal in CA, where it is in DC. This case is making the argument that the DC law is arbitrary because they are banning ownership, possession, use, etc based on a policy of picking and choosing from the CA Roster, and without allowing the flexibility that the CA Roster exemptions provide. that would kind of imply that the CA roster is the standard - no?

Now - maybe it's just me - but it's kind of hard to argue that the DC Roster is no good because it doesn't follow the same patterns as the CA Roster - if the CA Roster is bad too.

FortCourageArmory
04-30-2009, 11:03 PM
Look - here's the breakdown as I see it.

Heller essentially makes two main points that apply here.

1) Government entities cannot ban an entire class of weapons that are commonly in use, with the exception of truly dangerous and unusual types of weapons.
This is where your argument breaks down. Heller says government entities cannot ban ANY FIREARMS that are in common use and are not dangerous and unusual. The prohibition on banning does not say whole classes of arms cannot be banned but the individual arms themselves are not allowed to be restricted.

Since the CA Roster says certain handguns are "unsafe" and restricts their transfer while allowing transfer of other "not unsafe" guns that are virtually identical save for some cosmetic differences, the state is in effect banning those arms. This will not pass the constitutional smell test. And to further allow cerrtain classes of citizen purchase those "unsafe" firearms while denying that same right to others sets up two levels of citizenship. Another reason this will not pass the judicial smell test.

The rest is just you liking to hear yourself talk. Gene, Bill and others have been on the front lines in this fight and know what they are talking about. Where were you?

hoffmang
04-30-2009, 11:20 PM
Honestly - no. That tends to be the standard.


Then you haven't read Heller and that tends to undermine the rest of your arguments. Let's turn to footnote 27 in the majority opinion:


27
JUSTICE BREYER correctly notes that this law, like almost all laws,
would pass rational-basis scrutiny. Post, at 8. But rational-basis
scrutiny is a mode of analysis we have used when evaluating laws
under constitutional commands that are themselves prohibitions on
irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553
U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis”
is not just the standard of scrutiny, but the very substance of the
constitutional guarantee. Obviously, the same test could not be used to
evaluate the extent to which a legislature may regulate a specific,
enumerated right, be it the freedom of speech, the guarantee against
double jeopardy, the right to counsel, or the right to keep and bear
arms. See United States v. Carolene Products Co., 304 U. S. 144, 152,
n. 4 (1938) (“There may be narrower scope for operation of the pre-
sumption of constitutionality [i.e., narrower than that provided by
rational-basis review] when legislation appears on its face to be within
a specific prohibition of the Constitution, such as those of the first ten
amendments. . .”). If all that was required to overcome the right to
keep and bear arms was a rational basis, the Second Amendment would
be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

There is also this section:

JUSTICE BREYER moves on to make a broad jurispruden-
tial point: He criticizes us for declining to establish a level
of scrutiny for evaluating Second Amendment restrictions.
He proposes, explicitly at least, none of the traditionally
expressed levels (strict scrutiny, intermediate scrutiny,
rational basis), but rather a judge-empowering “interest-
balancing inquiry” that “asks whether the statute burdens
a protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests.” Post, at 10. After an
exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest-
balanced answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already dis-
cussed), the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insist-
ing upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad. We would
not apply an “interest-balancing” approach to the prohibi-
tion of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam). The First Amendment contains the
freedom-of-speech guarantee that the people ratified,
which included exceptions for obscenity, libel, and disclo-
sure of state secrets, but not for the expression of ex-
tremely unpopular and wrong-headed views. The Second
Amendment is no different. Like the First, it is the very
product of an interest-balancing by the people—which
JUSTICE BREYER would now conduct for them anew. And
whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

So now that it's clear that the level of scrutiny is either intermediate or strict, your arguments that the obscure exceptions to the roster make it "rational" or "reasonable" are done.

Even at intermediate scrutiny, the balance between the infringment and the right tips to the right. The current roster works to make nearly 90% of new makes and models of firearms ineligible for purchase in California. The state's interest in that ineligibility is non-existent beyond an argument that the state makes that LCIs and Mag Disconnects are "better."

That point is however not clear at all. Even the state's own training program teaches that one should not rely on a mag disco or an LCI but should instead never point a firearm in an unsafe direction.

-Gene

Sinixstar
05-01-2009, 12:12 AM
This is where your argument breaks down. Heller says government entities cannot ban ANY FIREARMS that are in common use and are not dangerous and unusual. The prohibition on banning does not say whole classes of arms cannot be banned but the individual arms themselves are not allowed to be restricted.

Since the CA Roster says certain handguns are "unsafe" and restricts their transfer while allowing transfer of other "not unsafe" guns that are virtually identical save for some cosmetic differences, the state is in effect banning those arms. This will not pass the constitutional smell test. And to further allow cerrtain classes of citizen purchase those "unsafe" firearms while denying that same right to others sets up two levels of citizenship. Another reason this will not pass the judicial smell test.

The rest is just you liking to hear yourself talk. Gene, Bill and others have been on the front lines in this fight and know what they are talking about. Where were you?

Actually - I just went through and read the entire majority opinion of heller just now to double check my understanding of it.

In fact - it does not say that the government may not ban ANY guns.
What it says is that the DC Ban was unconstitutional because the historical evidence suggests that 2nd protects weapons in common use for self defense by the people, and given that handguns are the most common weapon used for self defense, banning the ENTIRE CLASS is a blatant violation of the 2nd.

Gene - as far as Scalia explicitly rejecting the idea of rational analysis - I hate to say it, but you are in fact wrong. The only time rational analysis is even mentioned, is in tearing Breyer a new one for his criticism over not balancing public interest with constitutional rights:


JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny,rational basis), but rather a judge-empowering “interestbalancing inquiry” that “asks whether the statute burdensa protected interest in a way or to an extent that is out ofproportion to the statute’s salutary effects upon otherimportant governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem,because the law is limited to an urban area, and because there were somewhat similar restrictions in the foundingperiod (a false proposition that we have already discussed), the interest-balancing inquiry results in theconstitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration ofthe right takes out of the hands of government—even the

.....

Third Branch of Government—the power to decide on acase-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to futurejudges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined withthe scope they were understood to have when the peopleadopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified,which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surelyelevates above all other interests the right of law-abiding,responsible citizens to use arms in defense of hearth and home.
JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents thisCourt’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, leftthat area in a state of utter certainty. And there will be time enough to expound upon the historical justificationsfor the exceptions we have mentioned if and when thoseexceptions come before us.


The majority clearly states that they are taking no stand on that issue, as this is not an exhaustive analysis of every detail of the 2nd. The majority then states that those issues will be dealt with on a case-by-case basis, if/when they are brought before the court. Not only does Scalia decline to address those issues - but the implication is that rational analysis would in fact be one of the appropriate means of considering a future argument.


He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny,rational basis), but rather a judge-empowering “interestbalancing inquiry” that “asks whether the statute burdensa protected interest in a way or to an extent that is out ofproportion to the statute’s salutary effects upon otherimportant governmental interests.”



So - basically - Heller did not say government cannot ban A gun. They simply ruled that the DC ban was a flagrant violation of the 2nd as it banned the single most commonly used type of firearm protected by the 2nd. They then left the door open to future analysis regarding individual case-by-case instances of potential violations.

In otherwords - as I said - not NEARLY as cut and dry as some of you are trying to make it out to be.

Sinixstar
05-01-2009, 12:18 AM
Then you haven't read Heller and that tends to undermine the rest of your arguments. Let's turn to footnote 27 in the majority opinion:



There is also this section:


So now that it's clear that the level of scrutiny is either intermediate or strict, your arguments that the obscure exceptions to the roster make it "rational" or "reasonable" are done.

Even at intermediate scrutiny, the balance between the infringment and the right tips to the right. The current roster works to make nearly 90% of new makes and models of firearms ineligible for purchase in California. The state's interest in that ineligibility is non-existent beyond an argument that the state makes that LCIs and Mag Disconnects are "better."

That point is however not clear at all. Even the state's own training program teaches that one should not rely on a mag disco or an LCI but should instead never point a firearm in an unsafe direction.

-Gene

The problem with that is that it is contradictory to the majority's own opinion that states retain the power to place restrictions on ownership, possession, and sale depending on the circumstances. (insanity, criminal ownership, sensitive areas, etc).

Untamed1972
05-01-2009, 6:15 AM
Look - here's the breakdown as I see it.

Heller essentially makes two main points that apply here.

1) Government entities cannot ban an entire class of weapons that are commonly in use, with the exception of truly dangerous and unusual types of weapons.

2) Government can however place restrictions on prohibited persons, possession in sensitive areas, and requirements and qualifications for commercial sale.

So - based on that. Let's apply the CA law to those two main points.

1) Does California law ban an entire class of weapons through the handgun roster. In this case - we are talking about handguns, and obviously the answer is no. The entire class of firearms known as handguns - are not banned.

2) Does the California law overstep it's boundaries in placing restrictions on prohibited persons, carrying in sensitive places, or restrictions and qualifications on commercial sale? Is it "unreasonable"?
Well - let's first look at the definition of reasonable:



This is where I've repeated myself a handful of times. This is where it gets really sticky. You essentially have to prove that the CA Roster is irrational. Both Heller and Nordyke left the door open for states to impose restrictions on firearms possession based on concerns for public safety. Nordyke I believes mentions this explicitly in outlining that the County has the right to prohibit firearms in public spaces (it's own property) as a matter of ensuring a safe and secure public environment. Is that a direct translation to "CA can tell you what guns you can or can't have?" obviously not. However it does set a standard that says the state has some wiggle room in the name of public safety.
That said - If California can show that the guidelines for rostering are applied fairly, There is a mechanism in place for manufacturers to address rostering issues openly, have a basis in objective scientific testing and analysis - it's going to be hard to beat. Nordyke affirms a state's ability to regulate in the name of public safety, and Heller explicitly outline's a state's ability to place reasonable restrictions and qualifications on commercial sale.

So - if the CA roster does not rise to the level of creating a ban on an entire class of weapons, and the restrictions they have placed on commercial sale (as protected by heller) are found to be reasonable - you lose.
That's the way I see it.

Kinda done repeating myself now. I know somebody's going to come along and yell about PPT or out of state transfer or something else. Don't care. Those issues are completely secondary to challenging the CA Roster - and using Heller and/or Nordyke as the basis for the argument.


I think however that you are overlooking the equal protection issue. I certain guns were truly unsafe and that is the states concern then they should be banned...period. LEOs cant have them, you can bring them with you if you move, if you already have one you can't sell it and so on. Because of the exceptions allowed for certain classes of people the law is obviously discriminating against certain classes of people. Why should someone who moves here from out of state or has dual state residency be able to have certain things that a person who is solely a resident of CA is not allowed to freely purchase thru normal free market sources? Then you toss in the fact that a particular gun can come on and off the list based just on the paying of a fee reveals the lists true intent.

FortCourageArmory
05-01-2009, 8:29 AM
Guys, I am starting to believe that Sinixstar is arguing just for the exercise. Logic won't sway him. Showing the relavant parts of the court case won't sway him. Common sense won't sway him. There's a name for someone that comes on a board recently and does such actions......

Dirtbiker
05-01-2009, 9:13 AM
I have to say that I have learned more about the attack on the "safe Gun" list than in any other thread.

Thanks Bill and Gene of your patience. You guys are great, keep up the good fight.

PatriotnMore
05-01-2009, 9:26 AM
Guys, I am starting to believe that Sinixstar is arguing just for the exercise. Logic won't sway him. Showing the relavant parts of the court case won't sway him. Common sense won't sway him. There's a name for someone that comes on a board recently and does such actions......


I was thinking the same thing last night when reading this thread.

curtisfong
05-01-2009, 9:31 AM
I believe he is outlining what will be the most likely response to any lawsuit quoting Heller/Nordyke.

Namely, that the 2nd guarantees that the government cannot ban "all" aspects of gun commerce (manufacture, transport, sale, ownership, carry), but the states can restrict "some" aspects of guns.

The question is, can states restrict guns to basically nothing? I.e. as long as ONE person can do "something" with a gun at some point at some specified location, all other restrictions are constitutional?

Unfortunately, the courts have done something similar with the "limited times" clause of copyright law (near infinite extension of copyright protection terms is "limited" as long as the extension isn't infinite)... so who knows?

hoffmang
05-01-2009, 10:06 AM
Gene - as far as Scalia explicitly rejecting the idea of rational analysis - I hate to say it, but you are in fact wrong. The only time rational analysis is even mentioned, is in tearing Breyer a new one for his criticism over not balancing public interest with constitutional rights:


You have a math problem. 4 justices voted that under a rational basis analysis, DC's laws would survive. 5 Justices voted for something else. That something else has to be more than rational basis.

Hence my statement that rational basis or simple interest balancing (the actual test used by Stevens) was specifically rejected.

-Gene

BillCA
05-01-2009, 10:07 AM
That could actually work in CA's favor though.
If you're trying to argue that CA is being unreasonable and simply trying to make things difficult for gun mfg's and retailers - CA could turn around and say that the reason why they require retesting and resubmitting after a length of time, and not after every minor revision - is to extend a gesture of good faith to manufacturers who have shown that they are capable and knowledgeable in complying with CA laws. They could argue that they chose to reexamine after a time period to AVOID putting an undo burden on mfg's - and give them the benefit of the doubt once they've shown competence in CA law.
You and I may know that's BS - but, prove it.
The issue isn't that you can't buy a particular gun from any source, once it falls off the list, but that you can't walk into a dealer and buy a specific existing model (that may still be current) because it has fallen off the list. (Dealer vs. other legal methods such as PPT).

Nor can you walk in to your local retailer and place an order for the brand new Schmitt & Blammo 8.5mm Auto because without state approval, California prohibits the sale.

A gun approved and placed on the roster is placed there for a specific period of time. When that time period lapses, the maker can pay another fee to continue to list the gun. But it must be exactly that same model/sub-model right down to the grips. This is because California uses the company's SKU number to list guns. If the maker changes that SKU for any reason (including non-functional changes, such as to denote an Orange front sight vs. a red one) the new gun has to be approved separately.

That makes the CA list both time-bound and model-specific. A S&W Model 599-1 is approved but the 599-2 that differs only in having a gold bead front target sight must get a separate approval listing to be sold.

California prohibits the importation or retail sale of any gun not rostered. If a gun is never approved and rostered in California you are prohibited from purchasing it from any retailer. Suppose the Ruger LCR is perfect for your needs, but for whatever reason Ruger decides not to have it listed in California. You are prohibited from purchasing that gun, even if it is currently manufactured.

The most egregious infringment that I see, is that you can manufacture a gun approved as "not unsafe", continue to manufacture that same gun exactly as approved and even without any statutory changes to safety requirements, it can become an "unsafe" gun because you failed to pay a "fee" [tax/extortion] to continue selling the gun in California. Thus, "unsafe" is becomes a euphemism for "failed to pay for play" in the California market.

As I understand D.C.'s law, what is permissible to register and license today, say a S&W 642-1 (exp:12/31/2009) will not be acceptable to re-register or re-license in 2010 unless S&W elects to keep the gun on the CA roster. This will require D.C. residents to keep track of their gun's status on another state's list and dispose of it and reacquire a new gun periodically. Since the 642-1 doesn't become "unsafe" due to statutory changes, defects or failures, the scheme is an arbitrary and capricious infringement on the right.

Flopper
05-01-2009, 11:38 AM
. . .

Well - let's first look at the definition of reasonable:

. . .


there's a term for the situation when one is debating someone that must look up the definition of "reasonable":

EFFORT IN FUTILITY.

this has been discussed ad nauseam. please, can we stop feeding the :troll: ?

curtisfong
05-01-2009, 11:54 AM
there's a term for the situation when one is debating someone that must look up the definition of "reasonable":

EFFORT IN FUTILITY.

this has been discussed ad nauseam. please, can we stop feeding the :troll: ?

So true, and yet, this is exactly how the anti's will frame this debate. Heller/Nordyke both depend heavily on what "reasonable" restrictions are.. "sensitive areas", "dangerous and unsafe weapons", "weapons in common use"

These are all phrases that the legislature absolutely drool over when they make bills that restrict freedom, because they all depend on what some arbitrary definition of "reasonable" is.

Blackhawk556
05-01-2009, 8:57 PM
You have a math problem. 4 justices voted that under a rational basis analysis, DC's laws would survive. 5 Justices voted for something else. That something else has to be more than rational basis.

Hence my statement that rational basis or simple interest balancing (the actual test used by Stevens) was specifically rejected.

-Gene

hey Gene,
sinix makes some good points but I still hope his side loses. Earlier he said that if your point of view is wrong and our side loses it can backfire badly. Let's say he is right and let's just say we do lose, how can it backfire and how will it affect us more than it is already today?

Sinixstar
05-01-2009, 10:46 PM
hey Gene,
sinix makes some good points but I still hope his side loses. Earlier he said that if your point of view is wrong and our side loses it can backfire badly. Let's say he is right and let's just say we do lose, how can it backfire and how will it affect us more than it is already today?

It's not "my side" - i sure as hell hope i'm wrong.


So true, and yet, this is exactly how the anti's will frame this debate. Heller/Nordyke both depend heavily on what "reasonable" restrictions are.. "sensitive areas", "dangerous and unsafe weapons", "weapons in common use"

These are all phrases that the legislature absolutely drool over when they make bills that restrict freedom, because they all depend on what some arbitrary definition of "reasonable" is.


Which is exactly why discussing it is not "feeding a troll". This is how the situation is going to play out. This is what they're going to try to pull. If you think it's going to be a cakewalk, you're wrong. Be prepared for the argument - because it will come.

edit : which is why I went and looked up the definition of "reasonable". They will try to define what's reasonable and what's not - much the way I did.

HondaMasterTech
05-01-2009, 10:49 PM
I agree with efforts to eliminate the B.S. list of approved guns.

Sinixstar
05-01-2009, 10:58 PM
Here's part of why I think the argument I layed out might work for CA.

It's very similar to how NFA handles Full Autos.
They're illegal for import the US (with exceptions for LE), but they're not illegal to own/use. There are some technicalities that are obviously different between the two situations - but if it's good enough for the feds, why not good enough for California?

If someone tries to argue that Full Autos are dangerous/unusual - by what standard? Now you get into an argument over what's dangerous and what's not. Full autos are not "common"? Well - were they common BEFORE they were regulated in '86? I'm willing to bet they were a heck of a lot more common then they are now...

The CA laws are worded in such a way to give them a lot of room for argument of finer points that just bog down the process and muddle the issue.


You have a math problem. 4 justices voted that under a rational basis analysis, DC's laws would survive. 5 Justices voted for something else. That something else has to be more than rational basis.

Hence my statement that rational basis or simple interest balancing (the actual test used by Stevens) was specifically rejected.

-Gene


I thought part of the problem was that Steven's didn't even attempt to apply a rationality test - he was suggesting the interest balancing approach that Scalia ripped him apart for. The ruling specifically stated they didn't even get into the detail of that because it was not necessary. A lot of the stuff about what test to apply and what not to apply was footnotes. Are footnotes legally binding? I was not aware that they were.

Perhaps in Heller the rational analysis was thought to be inappropriate. I bet you dollars to donuts that CA makes the argument that because of the differences in the CA/DC laws - that it is more appropriate in a challenge to the CA laws. Especially given the fact that both Heller and Nordyke specifically stated that the state has an interest and a right to regulate in the name of public safety.

Sinixstar
05-01-2009, 11:03 PM
I think however that you are overlooking the equal protection issue. I certain guns were truly unsafe and that is the states concern then they should be banned...period. LEOs cant have them, you can bring them with you if you move, if you already have one you can't sell it and so on. Because of the exceptions allowed for certain classes of people the law is obviously discriminating against certain classes of people. Why should someone who moves here from out of state or has dual state residency be able to have certain things that a person who is solely a resident of CA is not allowed to freely purchase thru normal free market sources? Then you toss in the fact that a particular gun can come on and off the list based just on the paying of a fee reveals the lists true intent.

Because the state can argue that by allowing the exceptions for people moving in from out of state, and PPT - that they're not trying to outright ban certain guns - but limit the public exposure to unsafe guns.
The CA roster is not a matter of "safe" and "unsafe" it's "unsafe" and "not unsafe". I imagine that's by design as well.
The "not unsafe" guns they will argue are simply more widely available then "unsafe" guns. "unsafe" guns are not *banned* but the Roster seeks to limit public exposure on a mass scale.
Exceptions for LE are common in pretty much every single gun law out there. Even the FA Import Ban if i'm not mistaken. I seriously doubt arguing that "law enforcement can have it - so should we" is going to really make for a winning case. LE is arguably a "professional" force. Perhaps not to the extent of the military(obviously not to that extent) - but it will be argued that they have exceptions because they must submit to regular training and qualification above and beyond what would be expected of a private citizen.

hoffmang
05-01-2009, 11:24 PM
I thought part of the problem was that Steven's didn't even attempt to apply a rationality test - he was suggesting the interest balancing approach that Scalia ripped him apart for. The ruling specifically stated they didn't even get into the detail of that because it was not necessary. A lot of the stuff about what test to apply and what not to apply was footnotes. Are footnotes legally binding? I was not aware that they were.


Stephens applied a rational basis analysis. Steven's himself tells you that your analysis is wrong:


Until today, it has been understood that legislatures
may regulate the civilian use and misuse of firearms so
long as they do not interfere with the preservation of a
well-regulated militia. The Court’s announcement of a
new constitutional right to own and use firearms for pri-
vate purposes upsets that settled understanding, but
leaves for future cases the formidable task of defining the
scope of permissible regulations. Today judicial craftsmen
have confidently asserted that a policy choice that denies a
“law-abiding, responsible citize[n]” the right to keep and
use weapons in the home for self-defense is “off the table.”
Ante, at 64. Given the presumption that most citizens are
law abiding, and the reality that the need to defend one-
self may suddenly arise in a host of locations outside the
home, I fear that the District’s policy choice may well be
just the first of an unknown number of dominoes to be
knocked off the table.


Here is the other 4 vote getting opinion that says that DC's law passes rational basis scrutiny from Breyer:


The majority is wrong when it
says that the District’s law is unconstitutional “[u]nder
any of the standards of scrutiny that we have applied to
enumerated constitutional rights.” Ante, at 56. How could
that be? It certainly would not be unconstitutional under,
for example, a “rational basis” standard, which requires a
court to uphold regulation so long as it bears a “rational
relationship” to a “legitimate governmental purpose.”
Heller v. Doe, 509 U. S. 312, 320 (1993). The law at issue
here, which in part seeks to prevent gun-related accidents,
at least bears a “rational relationship” to that “legitimate”
life-saving objective.

Rational basis scrutiny was specifically rejected in Heller 5 to 4. Once the Roster is subjected to any scrutiny higher than rational basis, it fails for a long list of reasons.

-Gene

wildhawker
05-01-2009, 11:38 PM
Stephens applied a rational basis analysis. Steven's himself tells you that your analysis is wrong...

Ohsmily would be proud :p

Maestro Pistolero
05-02-2009, 2:18 AM
There is still a path to legal ownership, and ownership it's self is still legal.

But, not for everybody. The supply of guns that would come from the narrow exceptions to the roster scheme are wholly insufficient to supply the entire law abiding population with the commonly used arms that Heller says are protected.

The state can't have free speech while prohibiting the importation of unsafe books, then decide that 80 percent of the most commonly read books are unsafe.

cousinkix1953
05-02-2009, 5:30 AM
Guys, I am starting to believe that Sinixstar is arguing just for the exercise. Logic won't sway him. Showing the relavant parts of the court case won't sway him. Common sense won't sway him. There's a name for someone that comes on a board recently and does such actions......
TROLL

Untamed1972
05-02-2009, 7:48 AM
Because the state can argue that by allowing the exceptions for people moving in from out of state, and PPT - that they're not trying to outright ban certain guns - but limit the public exposure to unsafe guns.

Limiting public access sounds like another way of saying "infringing on a protected right" to me!

Exceptions for LE are common in pretty much every single gun law out there. Even the FA Import Ban if i'm not mistaken. I seriously doubt arguing that "law enforcement can have it - so should we" is going to really make for a winning case. LE is arguably a "professional" force. Perhaps not to the extent of the military(obviously not to that extent) - but it will be argued that they have exceptions because they must submit to regular training and qualification above and beyond what would be expected of a private citizen.

But if the same guns are commonly held and in use by private citizens in other states then they need to provide something more then LEO party line about being better trained. Trust me...POST firearms training ain't that great.....it's not like you come out of the academy trained like a Navy SEAL. They're going to have to back that "LEOs are better trained" up with someone more then words. But again, I go back to the point that a gun that was once on the list and freely available can suddenly become unavailable because the mfg'er failed to pay a fee. That tips the hand of what th list is all about.....just like you said in the quote above....they are trying to limit access w/o going to an outright ban because they know a an outright ban would have been challenged. So it was a plan of "ban by attrition".

jas000
05-02-2009, 10:45 AM
Justice Breyer's Heller dissent:
It certainly would not be unconstitutional under,
for example, a “rational basis” standard, which requires a
court to uphold regulation so long as it bears a “rational
relationship” to a “legitimate governmental purpose.”
Heller v. Doe, 509 U. S. 312, 320 (1993). The law at issue
here, which in part seeks to prevent gun-related accidents,
at least bears a “rational relationship” to that “legitimate”
life-saving objective.

Breyer's dissent is weak, anyway. By his stated rational basis standard, a court would have to uphold a ban on elective surgery using general anesthesia (people die by accident) - so banning that surgery "bears a rational relationship to that legitimate life-saving objective".

Bah! Substitute "abortion procedure" for "elective surgery" and you'll have Breyer himself proclaiming rational basis isn't the standard for that "right".

hoffmang
05-02-2009, 12:45 PM
Ohsmily would be proud :p

Ouch and guilty as charged!

-Gene