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Apocalypsenerd
03-23-2010, 12:01 AM
I'm sure this has been asked before, but I've only been on the forum for a month or so.

According to the CA Constitution:

"The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land."

and

"All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy."

Don't these statements, by definition, incorporate the BoR into CA without McDonald?

wildhawker
03-23-2010, 12:21 AM
The CA Supreme Court has ruled that California's constitution does not include a Right to Keep and Bear Arms. (see Kasler v. Lockyer (http://www.hoffmang.com/firearms/Kasler-v-Lockyer.pdf)).

This fundamental right plaintiffs
locate in article 1, section 1 of the California Constitution, which provides: “All
people are by nature free and independent and have inalienable rights. Among
these are enjoying and defending life and liberty, acquiring, possessing, and
protecting property, and pursuing and obtaining safety, happiness, and privacy.”
If plaintiffs are implying that a right to bear arms is one of the rights recognized in
the California Constitution’s declaration of rights, they are simply wrong. No
mention is made in it of a right to bear arms. (See In re Rameriz (1924) 193 Cal.
633, 651 [“The constitution of this state contains no provision on the subject.”].)
Moreover, “[i]t is long since settled in this state that regulation of firearms is a
proper police function.” (Galvan v. Superior Court (1969) 70 Cal.2d 851, 866.)
We reject any suggestion that the regulations at issue here impermissibly infringe
upon the right to defend life or protect property guaranteed by the California
Constitution.

The US and CA supremacy clauses only compel the state courts to follow SCOTUS in interpreting and applying the US constitution to state laws. Neither instruct incorporation. When we have a SCOTUS-level decision applying 2A as against the states via 14A, then the 2A must be recognized as a constitutional right in all Federal and state courts.



Principles of preemption have been articulated by numerous courts. " 'The
supremacy clause of article VI of the United States Constitution grants Congress the
power to preempt state law. State law that conflicts with a federal statute is " 'without
effect.' " [Citations.] It is equally well established that "[c]onsideration of issues arising
under the Supremacy Clause 'start[s] with the assumption that the historic police powers
of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and
manifest purpose of Congress.' " [Citation.] Thus, " ' "[t]he purpose of Congress is the ultimate touchstone" '
" of pre-emption analysis." [Citation.]' " (Jevne v. Superior Court (2005) 35 Cal.4th 935, 949.)

The California Supreme court has identified "four species of federal preemption:
express, conflict, obstacle, and field. [Citation.] [] First, express preemption arises
when Congress 'define[s] explicitly the extent to which its enactments pre-empt state law.
[Citation.] Pre-emption fundamentally is a question of congressional intent, [citation],
and when Congress has made its intent known through explicit statutory language, the
courts' task is an easy one.' [Citations.] Second, conflict preemption will be found when
simultaneous compliance with both state and federal directives is impossible. [Citations.]
Third, obstacle preemption arises when ' "under the circumstances of [a] particular case,
[the challenged state law] stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress." ' [Citations.] Finally, field preemption,
i.e., 'Congress' intent to pre-empt all state law in a particular area,' applies 'where the
scheme of federal regulation is sufficiently comprehensive to make reasonable the
inference that Congress "left no room" for supplementary state regulation.' [Citations.]"
(Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007)
41 Cal.4th 929, 935-936, fn. omitted (Viva!).)

Paragun
03-23-2010, 8:19 AM
Cali has never been interested in the safety of its citizens. This section of the state constitution covers the rights of "victims".

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 28.

It's a long read!

Paragun
03-23-2010, 8:20 AM
http://www.leginfo.ca.gov/.const/.article_1

POLICESTATE
03-23-2010, 8:22 AM
We have a constitution in this state? Does anyone in our government know about this?

command_liner
03-23-2010, 9:09 AM
Lockyer was decided incorrectly. The court simply lied about the
history of the California Constitution.

The history of why there is no RKBA written in the Ca. Const. is
very clear. The debates on the adoption of the 1849 Const. are really,
really, really, unmistakably clear on this point. The record states the
RKBA clause was omitted because the men that drafter the Ca. Const.
considered the US Bill of Rights to be part of the Ca. Const. What
we call "incorporation" today was not even a question -- it was taken
as fact.

Note that this point is VERY important in the upcoming Nordyke
continuation. At the en banc hearing the chief justice of the 9th
specifically brought up this point.


On a broader point, the US Constitution requires that each state
have a democratic republic as its form of government. We are in our
4th declared fiscal emergency with an ineffectual governor, and a rogue
assembly and senate. Say the California courts refuse to implement a
solid win on the McDonald case, and we still have no budget.

Could California still be considered a US State? Probably yes, but not
by much. At some point the State-ness will expire. Since the laws,
and the political entities (cities, counties, school districts, etc.) derive
their power from the State-ness of California, the enforceability of laws
comes into question as the viability of the state declines.

N6ATF
03-23-2010, 9:12 AM
We have a constitution in this state? Does anyone in our government know about this?

Stateside toilet paper: U.S. Constitution print
International lobbyist-funded travel toilet paper: CA Constitution print

OleCuss
03-23-2010, 9:39 AM
Lockyer was decided incorrectly. The court simply lied about the
history of the California Constitution.

The history of why there is no RKBA written in the Ca. Const. is
very clear. The debates on the adoption of the 1849 Const. are really,
really, really, unmistakably clear on this point. The record states the
RKBA clause was omitted because the men that drafter the Ca. Const.
considered the US Bill of Rights to be part of the Ca. Const. What
we call "incorporation" today was not even a question -- it was taken
as fact.

Note that this point is VERY important in the upcoming Nordyke
continuation. At the en banc hearing the chief justice of the 9th
specifically brought up this point.


On a broader point, the US Constitution requires that each state
have a democratic republic as its form of government. We are in our
4th declared fiscal emergency with an ineffectual governor, and a rogue
assembly and senate. Say the California courts refuse to implement a
solid win on the McDonald case, and we still have no budget.

Could California still be considered a US State? Probably yes, but not
by much. At some point the State-ness will expire. Since the laws,
and the political entities (cities, counties, school districts, etc.) derive
their power from the State-ness of California, the enforceability of laws
comes into question as the viability of the state declines.

That was an interesting post. I hope to research some of that some day in order to confirm at least some of that.

POLICESTATE
03-23-2010, 9:40 AM
Stateside toilet paper: U.S. Constitution print
International lobbyist-funded travel toilet paper: CA Constitution print

Well at least they're using it... I guess. Bastards.

GrizzlyGuy
03-23-2010, 10:46 AM
Lockyer was decided incorrectly. The court simply lied about the
history of the California Constitution.

The history of why there is no RKBA written in the Ca. Const. is
very clear. The debates on the adoption of the 1849 Const. are really,
really, really, unmistakably clear on this point.

None of this is relevant as the 1849 CA constitution was superceded by a new one after a constitutional convention in 1879 (http://www.militarymuseum.org/Constitution.html):

The 1849 Constitution thus framed was ratified by the people of California at an election held on November 13, 1849. This Constitution served the state both before and after its admission into the union, serving as the basis of government for the State of California until 1879 when a new state constitution was adopted.

Or see equivalent info from here (http://www.absoluteastronomy.com/topics/California_Constitution):

The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which was ratified on May 7, 1879. The result of Progressive mistrust of elected officials, the 1879 constitution is the third longest in the world (behind those of Louisiana and India) ), and has been described as "the perfect example of what a constitution ought not to be".

Now the progressives want to rewrite it again (http://www.laprogressive.com/political-issues/california-political-issues/california-needs-a-new-constitution/). California is a lost cause, it is a progressive "paradise" and will continue to be one for the foreseeable future. The only realistic hope for liberty is in the free states. Anyone who has the means to move out of the state should seriously consider doing so. Some states are actively recruiting liberty-minded people to move there (http://freestateproject.org/), including refugees from California.

command_liner
03-23-2010, 12:47 PM
None of this is relevant as the 1849 CA constitution was superceded by a new one after a constitutional convention in 1879 (http://www.militarymuseum.org/Constitution.html):

Or see equivalent info from here (http://www.absoluteastronomy.com/topics/California_Constitution):

Now the progressives want to rewrite it again (http://www.laprogressive.com/political-issues/california-political-issues/california-needs-a-new-constitution/). California is a lost cause, it is a progressive "paradise" and will continue to be one for the foreseeable future. The only realistic hope for liberty is in the free states. Anyone who has the means to move out of the state should seriously consider doing so. Some states are actively recruiting liberty-minded people to move there (http://freestateproject.org/), including refugees from California.

Saying that none of it is relevant is a bit strong.
I was there at the Nordyke en banc and watched the panel of judges
specifically ask both sides about this specific point. "Why was there
no RKBA clause in the 1849 Const.". Neither side could respond, and
the question was left as open.

Due to the magic of Google Books, we can all now read the 1849 Ca.
Const. debates on-line. Start around page 45 and read to page 50.
Very plain wording -- the US BOR was incorporated into the Ca. Const.
in 1849. Search under 'John Ross Browne'

Since the 1879 Const. was based on the 1849 Const. the question
becomes "Was the RKBA issue specifically repudiated in the 1879
Const.?". Please find the specific text stating the drafters of the
1879 Const. specifically repudiated the previously-incorporated RKBA
position. (Ignore the modern day nonsense.)

wildhawker
03-23-2010, 1:06 PM
All of this is irrelevant. Until McDonald is decided and 2A is incorporated as against the states and local governments, no CA court can or will find any RKBA applicable in their jurisprudence.

GrizzlyGuy
03-23-2010, 5:28 PM
Saying that none of it is relevant is a bit strong.
I was there at the Nordyke en banc and watched the panel of judges
specifically ask both sides about this specific point. "Why was there
no RKBA clause in the 1849 Const.". Neither side could respond, and
the question was left as open.

Due to the magic of Google Books, we can all now read the 1849 Ca.
Const. debates on-line. Start around page 45 and read to page 50.
Very plain wording -- the US BOR was incorporated into the Ca. Const.
in 1849. Search under 'John Ross Browne'

Since the 1879 Const. was based on the 1849 Const. the question
becomes "Was the RKBA issue specifically repudiated in the 1879
Const.?". Please find the specific text stating the drafters of the
1879 Const. specifically repudiated the previously-incorporated RKBA
position. (Ignore the modern day nonsense.)

I'm sorry, but the 1879 constitution was not based on the 1849 constitution. The 1879 constitution superseded the one from 1849. Supersede means (http://dictionary.reference.com/browse/supersede):

1. to replace in power, authority, effectiveness, acceptance, use, etc., as by another person or thing.

2. to set aside or cause to be set aside as void, useless, or obsolete, usually in favor of something mentioned; make obsolete: They superseded the old statute with a new one.

The 1849 constitution is therefore nothing more than a historical relic. It is meaningless and irrelevant from the perspective of the law.

Apocalypsenerd
03-23-2010, 6:00 PM
Not sure how much this matters to the 1849 or 1879 discussion, but the qoutes I got from the CA Constitution came from the current Constitution. It's here:

http://www.leginfo.ca.gov/const-toc.html

wildhawker
03-23-2010, 6:50 PM
I repeat: it doesn't matter. Please see my earlier comments.

HokeySon
03-23-2010, 7:53 PM
I'm sure this has been asked before, but I've only been on the forum for a month or so.

According to the CA Constitution:

"The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land."

and

"All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy."

Don't these statements, by definition, incorporate the BoR into CA without McDonald?

The short answer to your question is "no." The long answer is long and complicated, but it boils down to federalism and the idea that all powers not expressly granted to the Fed Govt are reserved by the states -- which of course is a fiction now in light of the jurisprudence dealing with the commerce clause. Anyway, even though I see your thinking in looking at the raw text -- unfortunately the entire area is burdened by decades of jurisprudential baggage. Put differently, its a losing argument in light of all the subsequent "interpretations" of the two documents.

wildhawker
03-23-2010, 7:58 PM
CC has nothing to do with this matter of preemption. Are you claiming it does or are you simply venting about healthcare reform in an unrelated thread?

The short answer to your question is "no." The long answer is long and complicated, but it boils down to federalism and the idea that all powers not expressly granted to the Fed Govt are reserved by the states -- which of course is a fiction now in light of the jurisprudence dealing with the commerce clause. Anyway, even though I see your thinking in looking at the raw text -- unfortunately the entire area is burdened by decades of jurisprudential baggage. Put differently, its a losing argument in light of all the subsequent "interpretations" of the two documents.

HokeySon
03-23-2010, 8:02 PM
I was stating that true federalism is dead in light of CC jurisprudence. I understtand preemption and I don't think the OP's question was about preemption so much as about "textual incorporation" of the BOR into the Cal. Const.

POLICESTATE
03-23-2010, 8:04 PM
I was stating that true federalism is dead in light of CC jurisprudence. I understtand preemption and I don't think the OP's question was about preemption so much as about "textual incorporation" of the BOR into the Cal. Const.

When it comes down to it, the feds have the authority, the guns and ultimately the military to back them up. If you want to see how much CC jurisprudence matters just look into what happened the last time some states tried to assert their rights in 1861.

HokeySon
03-23-2010, 8:09 PM
When it comes down to it, the feds have the authority, the guns and ultimately the military to back them up. If you want to see how much CC jurisprudence matters just look into what happened the last time some states tried to assert their rights in 1861.

Ummmm....yes .... that is what I was saying ... the fed has far more authority that it ever sould have under a federalist view. Whether it took that authority as in the Civil War or Judicial decissions doessn't change the result.

POLICESTATE
03-23-2010, 8:11 PM
Ummmm....yes .... that is what I was saying ... the fed has far more authority that it ever sould have under a federalist view. Whether it took that authority as in the Civil War or Judicial decissions doessn't change the result.

I figured I would just put it in simpler and stronger terms :)

swhatb
03-23-2010, 9:24 PM
The CA Supreme Court has ruled that California's constitution does not include a Right to Keep and Bear Arms. (see Kasler v. Lockyer (http://www.hoffmang.com/firearms/Kasler-v-Lockyer.pdf)).



The US and CA supremacy clauses only compel the state courts to follow SCOTUS in interpreting and applying the US constitution to state laws. Neither instruct incorporation. When we have a SCOTUS-level decision applying 2A as against the states via 14A, then the 2A must be recognized as a constitutional right in all Federal and state courts.



good information... sad though.