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View Full Version : Relying on the 2nd Amendment?


shecky
06-15-2005, 1:09 AM
Is there any comprehensive site outlining state's regulations of firearms, AND challenges to such regulations?

What I'm getting at here is wondering why laws such as the CA assault weapon ban have not (to my knowledge) been successfully challenged in the courts as being contrary to the 2nd Amendment? It would seem to me that federal law would supercede state law. My casual, if purely amateur, observation is that the higher courts tend to rule more often against state's rights. In this case, more restrictive state law contradicting the 2nd Amendment.

Please no rants or whining. I'm wondering if CA gun laws can reasonably be construed as "unconstitutional" by actual lawyers and judges, not by us gun nuts.

06-15-2005, 2:04 AM
Originally posted by shecky:
Is there any comprehensive site outlining state's regulations of firearms, AND challenges to such regulations?

What I'm getting at here is wondering why laws such as the CA assault weapon ban have not (to my knowledge) been successfully challenged in the courts as being contrary to the 2nd Amendment?

Successfully or just plain challenged? If it's only the latter, you can use this (old news, don't get excited) as a jumping off point for some web research.
Silveira v. Lockyer (http://www.keepandbeararms.com/silveira/scotus.asp)


It would seem to me that federal law would supercede state law. My casual, if purely amateur, observation is that the higher courts tend to rule more often against state's rights. In this case, more restrictive state law contradicting the 2nd Amendment.

The problem as I see it is that the 2nd isn't regarded as an individual right. That always seems to be the dagger in the heart for these things.

If the state (CA) were to legalize slavery under the guise that the 10th amendment gave it the power to enact such a thing, you can bet it would be challenged (and rightfully so) as being unconstitutional since it overrides federal madates making slavery illegal (the 13th).
I'm guessing that this is the general scenario you're alluding to in the above.

Please no rants or whining. I'm wondering if CA gun laws can reasonably be construed as "unconstitutional" by actual lawyers and judges, not by us gun nuts.

Historically, I'd say no, they haven't been with any measurable success.

06-15-2005, 4:07 PM
BB - the reference to the individual right vs. collective right is very salient regarding the original question. Historically, the Second Amendment was regarded as an individual right. It was not until the 20th century that the collective right perspective gained sway. However, the Justice Department, under Attorney General John Aschroft, issued a opinion that affirmed the Second Amendment as an individual right http://www.usdoj.gov/olc/secondamendment2.htm. I have not heard of any legal challanges to restrictive state laws (i.e. SB 23 or AB 50) since this opinion was issued.

I would be curious to know if any challanges, on the basis of the Second Amendment, are being planned in light of the current Administration's position?

delloro
06-15-2005, 4:23 PM
that was not ashcroft.

the law means only what the courts say it means. they don't say the 2d amendment prohibits reasonable gun control. thus, no problem. if and when the law's application/interpretation of the 2d amendment changes, then we will see what happens.

FWIW I do think that the 2d amendment allows for reasonable gun and weapon guntrol. I don't think many of the laws are constitutional

but I don't sit on the supreme court. yet.

MUA HA HA HAAAAA!

delloro
06-15-2005, 4:24 PM
Originally posted by delloro:
that was not ashcroft.

the law means only what the courts say it means. they don't say the 2d amendment prohibits reasonable gun control. thus, no problem. if and when the law's application/interpretation of the 2d amendment changes, then we will see what happens.

FWIW I do think that the 2d amendment allows for reasonable gun and weapon guntrol. but, I don't think many of the laws are reasonable or constitutional

but I don't sit on the supreme court. yet.

MUA HA HA HAAAAA!

RRangel
06-15-2005, 4:52 PM
California is also one of the states that has no mention of the "right to keep and bear arms" in it's constitution. This has definately helped the gun banners.

RRangel
06-15-2005, 7:03 PM
Basura Blanca

Why do you have a sickle, hammer, and star as your avatar? I'd really like to hear it but I don't think there is any reason good enough.

I suppose you're trying to remind us that communism and marxism still exist.

06-15-2005, 7:26 PM
Originally posted by delloro:
that was not ashcroft.

the law means only what the courts say it means. they don't say the 2d amendment prohibits reasonable gun control. thus, no problem. if and when the law's application/interpretation of the 2d amendment changes, then we will see what happens.

FWIW I do think that the 2d amendment allows for reasonable gun and weapon guntrol. I don't think many of the laws are constitutional

but I don't sit on the supreme court. yet.

MUA HA HA HAAAAA!

To an extent that is right, however the legislative branch has the authority to limit the jurisdiction of the court. I would also make the case that baning certain classes of rifles based on cosmetic definitions would not stand the test of judicial scrutiny if the argument was that the bans represented reasonable regulation. No, that is not the argument. Notice in the opening of the opinion I referred to the author makes the point that the caselaw is split. Some Federal courts have favored the collective rights view and others (the 5th District I believe) have endorsed the individual rights view. That is the crux of the issue. And BTW, it was the Justice Department under John Ashcroft that issued the opinion. I never said it was Ashcroft himself, rather the Justice Department under his tenure as AG.

06-15-2005, 7:27 PM
Originally posted by Admin:
Basura Blanca

Why do you have a sickle, hammer, and star as your avatar? I'd really like to hear it but I don't think there is any reason good enough.

I suppose you're trying to remind us that communism and marxism still exist.

+1. I have to say I was wondering the same thing.

06-16-2005, 12:23 AM
Originally posted by Admin:
Basura Blanca

Why do you have a sickle, hammer, and star as your avatar? I'd really like to hear it but I don't think there is any reason good enough.

Gotta look here first, I suppose. (http://calguns.net/groupee/forums/a/tpc/f/2386094772/m/40810755521)

Since apparently I've been sniffed out and exposed for what I really am by CalGuns' very own J. Edgar Hoover and thus not wanting to let anyone down, I decided to let my alleged "true" colors fly.

I suppose you're trying to remind us that communism and marxism still exist.

No. Not at all.
Don't worry, the third eye will be back soon.

...just a little sick of wild accusations from the nut-jobs that just don't "get it" sometimes.

delloro
06-16-2005, 2:12 PM
I think somebody is about to be called to testify before the Calguns Un-American Activities Committee.

delloro
06-16-2005, 2:20 PM
Originally posted by macman:
To an extent that is right, however the legislative branch has the authority to limit the jurisdiction of the court.

which court

I would also make the case that baning certain classes of rifles based on cosmetic definitions would not stand the test of judicial scrutiny if the argument was that the bans represented reasonable regulation.

go ahead

No, that is not the argument. Notice in the opening of the opinion I referred to the author makes the point that the caselaw is split.

"caselaw is split"?

Some Federal courts have favored the collective rights view and others (the 5th District I believe) have endorsed the individual rights view.

what?

That is the crux of the issue. And BTW, it was the Justice Department under John Ashcroft that issued the opinion. I never said it was Ashcroft himself, rather the Justice Department under his tenure as AG.

blah blah blah it was the Solicitor General, Theodore Olson.

Charliegone
06-16-2005, 3:53 PM
Hey who cares what you believe in. Whether your a communist or a capitalist, we are all fighting for the same cause mentioned in this site right? Freedom to keep and bear arms with no excessive government meddling.

shecky
06-16-2005, 9:49 PM
Thanks, Basura Blanca. Good info.

While it seems some hope for Silveira v. Lockyer to make it to the SC, I would expect they'd not be terribly interested in ever hearing the case. The most conservative members tend to be big state's rights advocates and not want to meddle on a federal level, and the most liberal members may be sympathetic to the CA law.

Upon some digging around, it seems that particular case may have done more harm than good, as it was poorly researched and followed up. Giving even more anti-gun precedent to be established. IOW, it was a half-assed attempt.

So what can be done of the CA AWB? The California RKBA petition seems inadequate as written, saying gun laws would be subject to strict scrutiny. Seems that could be construed as District Court scrutiny, which may be of no help.

AB448 seems interesting. But I suspect it will go nowhere. Even if it got to the governor's desk, it could face a veto.

Perhaps a voter referendum? Prop AWB? I wonder if enough voters care about gun rights to repeal the ban? Hmmm...

06-17-2005, 10:28 AM
delloro - Do you understand the big picture here? The issue is how do you construe the Second Amendment? Do you understand the difference between the "collective right" construction and the "individual right" construction? The closest SCOTUS ever came to rulling on the Second Amendment was in U.S. v. Miller in 1939. (Note: there were some 19th century cases) While the Miller decision did not directly address how the Second Amendment was to be constured, it did touch on what rights are conferred by the Second Amendment. Specifically, that weapons having no usefull purpose in a militia are not protected by the Second Amendment. BTW, I am not supporting the Miller decision. I would like to see it overturned. However, the gun grabbers reference it all the time to argue in favor of the "collective right" view. (IMHO, Miller did not address the issue directly so this argument is false).

So basically we need to see the big picture. That's why the opinion I originally referenced is important. However, I would not want to test it with just any case as that could do more damage that good, but my question remains. Have there been any challanges on the basis of a Second Amendment violation, since the opinion issued by the DOJ that the Second Amendment does in fact protect individual's rights to keep and bear arms?

delloro
06-17-2005, 2:02 PM
yes, I am pretty certain I understand "the big picture" and what's going on but I'm not sure 1) just what you are writing about, and 2) we agree on what "the big picture" is.

I don't know if there have been any cases filed based on the 2d amendment since Olson's opinion, but you know that Olson's opinion is only persuasive at best, it has no value as precedent, right?

06-17-2005, 2:31 PM
Originally posted by delloro:
yes, I am pretty certain I understand "the big picture" and what's going on but I'm not sure 1) just what you are writing about, and 2) we agree on what "the big picture" is.

I don't know if there have been any cases filed based on the 2d amendment since Olson's opinion, but you know that Olson's opinion is only persuasive at best, it has no value as precedent, right?

Yes, I understand that an opinion written by the Solicitor General has no legal precedent, however opinions are often present in support of cases. The document written by SG Olsen is well researched and persuasive. The big picture is ensuring that Second Amendment is construed as protecting an individual right to keep and bear arms in the United States of America. Is that clear enough? Everything else beyond that (incluing what reasonable regulation means) is secondary. The most important issue is the meaning of the Second Amendment.

delloro
06-17-2005, 4:35 PM
ok