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View Full Version : McDonald v. Chicago and what it means for CA?


misterjake
10-26-2009, 11:02 PM
Hello Calguns.net,

I was wondering if and when the Supreme Court rules that the 2nd Amendment cannot be hampered by state and local laws how will this effect our laws here in CA?

IE. High capacity magazines, handgun ban list, AB962 etc....???


It seems how can state justify these laws if infact they are unconstitutional?

What more would calguns.net need if the SCOTUS rules in our favor?

Or will this just open another can of legal worms that'll take years to remove the stupid anti-gun laws this state has?

Is there going to be any court filings to remove some of these anti gun laws as soon as SCOTUS says what we all know?

Librarian
10-26-2009, 11:16 PM
Hello Calguns.net,

I was wondering if and when the Supreme Court rules that the 2nd Amendment cannot be hampered by state and local laws how will this effect our laws here in CA?

IE. High capacity magazines, handgun ban list, AB962 etc....???


It seems how can state justify these laws if infact they are unconstitutional?

What more would calguns.net need if the SCOTUS rules in our favor?

Or will this just open another can of legal worms that'll take years to remove the stupid anti-gun laws this state has?

Is there going to be any court filings to remove some of these anti gun laws as soon as SCOTUS says what we all know?

It's likely to be can-of-worms, in that many laws will need to be challenged individually - there will not be any 'automatic' rollbacks or voiding of laws.

On the other hand, several of those suits have already been filed, but are on hold for McDonald. See the Calguns Foundation Wiki - http://wiki.calgunsfoundation.org/index.php/Main_Page#Important_Cases - and the entries for Nordyke, Pena and Sykes.

misterjake
10-26-2009, 11:17 PM
Which one is handgun ban list and is there one for hi-capacity ban list?

Dr Rockso
10-27-2009, 12:01 AM
Welcome to Calguns.

We briefly had incorporation in California after a three judge panel decided Nordyke v. King earlier this year. The 9th Circuit voted to have the complete court re-hear the case, which decided to delay its decision that since the question would be resolved by SCOTUS.

As for pending cases, Pena is challenging the roster and Sykes is challenging concealed carry. Also there are parallel cases making their way through the system in Washington DC, which will help us in CA once incorporation is decided. It is doubtful that the high-capacity magazine ban is going to be challenged until a lot more legal framework is established. The assault weapon ban will probably be challenged very shortly after SCOTUS decides incorporation.

sergeantrex
10-27-2009, 7:50 AM
Hello Calguns.net,

I was wondering if and when the Supreme Court rules that the 2nd Amendment cannot be hampered by state and local laws how will this effect our laws here in CA?

IE. High capacity magazines, handgun ban list, AB962 etc....???


It seems how can state justify these laws if infact they are unconstitutional?

What more would calguns.net need if the SCOTUS rules in our favor?

Or will this just open another can of legal worms that'll take years to remove the stupid anti-gun laws this state has?

Is there going to be any court filings to remove some of these anti gun laws as soon as SCOTUS says what we all know?

This is how I understand it. Someone correct me if I am wrong. Basically Without incorporation a court can say "the Second Amendment is not incorporated to the states, California can do whatever they want." I believe incorporation gets us into court where we can challenge California laws on a level playing field.

Librarian
10-27-2009, 8:01 AM
Which one is handgun ban list and is there one for hi-capacity ban list?

Sykes for the first. Large-capacity ban isn't yet addressed - it's a secondary issue behind 'basic right' and 'shall issue'.

wash
10-27-2009, 9:06 AM
There will soon be a challenge to Richmond's high capacity magazine ban unless they fold first.

This might mean a challenge to the state ban might come sooner than I imagined but challenging the AW ban is a higher priority because it's a ban on protected arms, not accessories. That means it's an easier case to win but that case will probably wait for the not-unsafe handgun roster to fall first.

Legally it's baby steps going from the roster to the AWB but the effect will be large. Going after the magazine ban immediately after incorporation would not be a baby step it would be a pretty big leap and the effect is small. We don't want to get ahead of ourselves, we don't want to do anything prematurely.

bwiese
10-27-2009, 9:44 AM
This is how I understand it. Someone correct me if I am wrong. Basically Without incorporation a court can say "the Second Amendment is not incorporated to the states, California can do whatever they want." I believe incorporation gets us into court where we can challenge California laws on a level playing field.

Correct.

Heller has already defined quite a few things for us, but only in DC.

What incorporation really does is take Heller and force it to apply it to the states.

Heller will not get "re-decided" but certain areas will need to be filled out and "degree/extent" in some areas will be argued.

Remember that Heller says we have a right to firearms that are not "dangerous and unusual" (with the 'and' being carefully and not casually used). Any currently-legal gun that's at least as common in national circulation as Dick Heller's revolver is likely to pass scrutiny; AW bans can be fought couched in terms of simple differences in plastic/wood shape on otherwise identical rifles, in combination with their extensive national presence already.

Kid Stanislaus
10-27-2009, 9:45 AM
Try to remember that with a 5-4 court you'll get a VERY narrowly defined decision. That's necessary to get the moderates on board. If we had something like a 7-2 majority we'd get a more sweeping decision.

wash
10-27-2009, 10:04 AM
Wrong, the court can only grant a decision based on the relief requested by the plaintiff. If they had a 7-2 majority they couldn't have done much more than the current Heller decision.

timdps
10-27-2009, 10:15 AM
Sounds like this might be a basis for overturning the CA hicap laws.

Changing from a 10 round mag to a 30 round mag does not make a rifle any more "dangerous and unusual" than it was with a 10 round mag.

Tim



Remember that Heller says we have a right to firearms that are not "dangerous and unusual" (with the 'and' being carefully and not casually used). Any currently-legal gun that's at least as common in national circulation as Dick Heller's revolver is likely to pass scrutiny; AW bans can be fought couched in terms of simple differences in plastic/wood shape on otherwise identical rifles, in combination with their extensive national presence already.

wash
10-27-2009, 10:41 AM
Yep, but once we establish that "Assault Weapons" are not dangerous or unusual it's a much easier case to win.

yellowfin
10-27-2009, 11:44 AM
I think New Jersey's capacity laws will be much easier to challenge as it is different for pistols and rifles--15 for pistol and 10 for rifle. This catches them acknowledging that more than 10 is OK until they arbitrarily say it isn't. It definitely can't stand up to strict scrutiny and probably not intermediate either--so when you can attack the reasoning like that, the law itself will fall. Attack that first then use the decision to knock off CA's limits.

I'm surprised Bill and/or Gene didn't post this first.

press1280
10-27-2009, 5:29 PM
I think New Jersey's capacity laws will be much easier to challenge as it is different for pistols and rifles--15 for pistol and 10 for rifle. This catches them acknowledging that more than 10 is OK until they arbitrarily say it isn't. It definitely can't stand up to strict scrutiny and probably not intermediate either--so when you can attack the reasoning like that, the law itself will fall. Attack that first then use the decision to knock off CA's limits.

I'm surprised Bill and/or Gene didn't post this first.

I'd also be curious if the SAF has any eyes on NJ after McDonald. In addition to what Yellowfin said about the capacity limits, NJ has the VERY discretionary CCW system and a Retired Officer's Right to Carry Law(where "justifiable need" is not required), and a One Gun a Month bill that just passed, keeping in mind most localities there take months to process an application to buy just 1 gun. The courts won't hold them to the 30 day statute as it is, so it ends up being maybe 1-2 guns/year.

misterjake
10-27-2009, 5:58 PM
Well, a lot of this reminds me of Jim Crow laws in the South. After Brown v. Board of Education, Jim Crow was essentially thrown out and segregation removed.

In essence, similiarities of local and state laws hampering on the constitutional rights of citizens, minorities then, gun owners now.

If I remember correctly, segregation was basically removed after Brown v. Board of Education, I thought the same might apply after McDonald v. Chicago.

yellowfin
10-27-2009, 8:36 PM
For attacking May Issue on the East Coast, I'd say either New Jersey and Maryland are equally vulnerable. Maryland is ridiculously stingy but they're up front about it (inexcusable, but they'll at least tell you), whereas NJ is so blatantly criminal almost every aspect of their government there is almost literally no discerning who is in maximum security and who is in Trenton to the point of it being a coin toss as to who gets sent where. I'd bet Satan himself personally puts down the pitchfork three times a week and prays to God for Jon Corzine to be saved so he won't take his job.

jamesob
10-27-2009, 9:39 PM
remember in willy wonka and the chocolate factory when charlie and the rest of the kids got the never ending gobstopper? well gun cases are like the never ending gobstopper for californians.

Mulay El Raisuli
10-28-2009, 7:13 AM
Well, a lot of this reminds me of Jim Crow laws in the South. After Brown v. Board of Education, Jim Crow was essentially thrown out and segregation removed.

In essence, similiarities of local and state laws hampering on the constitutional rights of citizens, minorities then, gun owners now.

If I remember correctly, segregation was basically removed after Brown v. Board of Education, I thought the same might apply after McDonald v. Chicago.


Basically, it will be like that. Still, the path wasn't always smooth.

The Raisuli

Aegis
10-28-2009, 7:32 AM
I agree. Shall issue or LOC should be first priority. Self defense outside of the home is critical, especially in this high crime state.

I can't understand how the court will not rule for incorporation. If they were to rule against incorporation, there could be arguments that the other amendments such as the 1A are not incorporated also. We may actually pick-up a few extra votes on this one compared to Heller.

Meplat
10-28-2009, 4:13 PM
Hello Calguns.net,
What more would calguns.net need if the SCOTUS rules in our favor?


A LOT of time money and really good lawyers.

We have the best lawyers and the time, and we will raise the money.

7x57
10-28-2009, 4:16 PM
A LOT of time money and really good lawyers.


A muzzle and shock-collar for Gary Gorski, maybe this Zeleny bloke too. Otherwise, time is a bit more dear. :chris:

7x57

Al Norris
10-29-2009, 10:15 AM
I can't understand how the court will not rule for incorporation.
We will get incorporation. What we don't know is the manner of that incorporation: Will it be by the Selective Incorporation Doctrine (Due Process Clause); a re-invigorated Privileges or Immunities Clause (striking down Slaughter-House and Cruikshank); or a plurality, combining both?

The liberal Justices on the Court have very good reasons to incorporate that have nothing whatsoever to do with the gun issues. McDonald is merely a vehicle to add credibility to certain other decisions that are murky.

Because of the nature of the Question the Court has agreed to answer, expect the Court to rule in favor of incorporation (by whichever vehicle) and then send the case back to the District Court for reconsideration in light of their decision.

Alan Gura merely asks the Court to decide: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses. The Court does not (and I feel it will not) have to answer if the laws of Chicago violate the 2A.

I do suspect that the decision (if authored by Scalia) will have fairly strong dicta, indicating that the laws do violate. I also feel that the Court (again, if authored by Scalia) will blast Judges Easterbrook and Posner for even suggesting that self-defense can be legislated away... That is contrary to the holding in Heller.

Meanwhile, Palmer v. D.C. will have been going forward (this case is not dependent upon McDonald). There are several very interesting aspects of this case, that will hold a greater meaning if it makes it all the way to the D.C. Circuit.

We will also have something coming from the 9th Circuit via Nordyke ("We," because I'm from Idaho and under the 9th's jurisdiction). The incorporation issue in that case will be a moot point. The greater point will be if the laws of Alameda will be sustained or overturned, if the second amendment issue is allowed to be amended into the complaint - a further definition of Heller's "sensitive places" will ensue.

Once the 9th Circuit has been heard from, Sykes and Peǹa will move forward (they are currently on hold, pending Nordyke).

All of the above has been said several times in several different ways by several other people. Yet it must be repeated, so that we don't lose our interest and above all, our hope.

In the May 2008 issue of S.W.A.T. magazine, I closed my article on the Heller case with: "This is perhaps, the single greatest Constitutional case of our time. Both sides of this issue have a great deal to gain as well as lose. Sit back and enjoy the ride... It's about to get wild and hairy!"

The rapid pace at which these cases are moving forward, has proven my statement above. The battlements have been breached and we are making strides against the tide of anti-gun law.

You Californians, contrary to the prudish beliefs of many gun-owners, are making vast strides, even if they seem to be slight and slow.

TrooperMKIII
10-29-2009, 12:41 PM
Great article on this subject:

http://www.lakelandtimes.com/main.asp?SectionID=9&SubSectionID=9&ArticleID=10269

misterjake
10-29-2009, 6:19 PM
That's a great link trooper. Thanks! I love talking about the 2nd Amendment now and how it applies from the Revolutionary War in my history class. High school students dig it and I set the record straight to my left leaning students about all 10 of the US Bill of Rights.

Mulay El Raisuli
10-30-2009, 5:33 AM
Great article on this subject:

http://www.lakelandtimes.com/main.asp?SectionID=9&SubSectionID=9&ArticleID=10269


Yes, it was. And this part (of the article):

"By further proscribing state and local governments' ability to restrict fundamental rights, and simultaneously expanding the menu of those rights, liberals believe the decision could provide the underpinning for challenges to laws restricting the right to abortion, to gay marriage, to sexual privacy, and to a host of other causes."

is why even the liberals will vote for Incorporation.

The Raisuli