PDA

View Full Version : Are CA gun laws unconstitutional?


taperxz
03-29-2010, 9:26 PM
AND, If they are why hasn't a case like McDonald been introduced here to fight for our 2A rights? I am just asking because as large of a state as we have and the ability to change state laws, shouldn't we be at the forefront of this take back our rights movement? I mean, heck he just got the nod to vote on legal recreational Marijuana. Something that is federally prohibited.

Now instead of being the have not state we will be the envy of all others!! (JK)

dantodd
03-29-2010, 9:32 PM
The Second Amendment doesn't exist in California yet. You need to read the actual documents in McDonald. Do a search and read some of the threads or do a search on "incorporation" and read those threads. That should give you the background on what McDonald is doing and why there is no Second Amendment in California. You can also find lots of good info on the many active cases at the wiki on www.calgunsfoundation.org of particular interest are Pena and Sykes.

taperxz
03-29-2010, 9:42 PM
Thanks, i am aware of what you are saying. I just can't believe HOW backwards this state has become. Been here all my life and all this stuff just keeps creepin up on us. I will read Pena and Sykes though! thanks again

bambam8d1
03-29-2010, 9:43 PM
yes

Stubby
03-29-2010, 10:36 PM
Thanks, i am aware of what you are saying. I just can't believe HOW backwards this state has become. Been here all my life and all this stuff just keeps creepin up on us. I will read Pena and Sykes though! thanks again


Excellent, after you are finished reading Pena and Sykes. Don't forget to donate some money or time to the CGF. The CGF will right the ship but as is often mentioned freedom aint free.:)

taperxz
03-29-2010, 10:44 PM
I dropped a dime at the cow palace:cool2:

Kerplow
03-29-2010, 11:20 PM
did you really expect any other answer???:chris:

SickofSoCal
03-29-2010, 11:21 PM
yes

taperxz
03-29-2010, 11:25 PM
Has their really been an answer and if so why are the laws the way they are here? Besides my post was more tongue n cheek in regards to the state taking our 2A from us but allowing us to vote of the legalization of pot for recreational use at the same time

RideIcon
03-29-2010, 11:25 PM
yes

N6ATF
03-30-2010, 11:24 AM
Has their really been an answer and if so why are the laws the way they are here?

Because CA.gov (state and municipal) is dominated by traitors who spend every waking moment defecating all over the Constitutions (both state, which says
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.
and federal, ...shall not be infringed).

My feeling is that incorporation is BS, should never have been necessary. If a state didn't say "we accept the U.S. Constitution as the supreme law of the land... except the amendments x, y, and z can go to hell, we're going to bend over and rape the human rights out of every law-abiding person in our state and give criminals a safe working environment", then the state agreed to ALL OF IT and was forever bound.

CAL.BAR
03-30-2010, 11:29 AM
Has their really been an answer and if so why are the laws the way they are here? Besides my post was more tongue n cheek in regards to the state taking our 2A from us but allowing us to vote of the legalization of pot for recreational use at the same time

The sad thing is that even if a state-wide vote to legalize AW's etc. today - we'd be CRUSHED. "People" in CA DON"T WANT AW's. MG's etc. legalized. They are scared to death of them.

Roadrunner
03-30-2010, 11:37 AM
Quite frankly, not only are most of California's gun laws unconstitutional, but so are the knife laws and laws that prevent someone from carrying a big stick for self defense. As I understand it, if you carry a stick for self defense, they call it a club and make it illegal. What's up with that? I can't wait for McDonald and the party that follows.

Stealth
03-30-2010, 11:57 AM
Yes

vantec08
03-30-2010, 12:01 PM
The reason there is effectively no 2nd amendment in CA is because politicians, in an effort to avoid offending groups, has decided that demonizing inanimate objects is safer than demonizing criminals and groups because those very criminals, and the groups they associate with, are politicians constituents.

wash
03-30-2010, 2:38 PM
The reason why a Californian is not a plaintiff in McDonald vs. Chicago is that California does not have a handgun ban.

That's the simplest way to explain it.

Heller vs. D.C. got SCOTUS to declare that RKBA is an individual right. Chicago was chosen for the incorporation case because their ban mirrors the D.C. ban that Heller struck down.

The good news is that incorporation through a win in McDonald vs. Chicago applies to California as well.

A lot of California gun laws are unconstitutional and will be struck down. McDonald vs. Chicago is the best next step in our fight.

taperxz
03-31-2010, 7:57 AM
Actually, California DOES have a handgun ban!! They ban certain handguns that don't meet certain requirements. Based on ??? Their expertise? Who in this state is the deciding authority? name, rank and serial #

wash
03-31-2010, 10:10 AM
That's not the same as the ban in Chicago or the ban they had in D.C.

Ca gun laws suck but we have to choose our battles because some fights we just can't win yet.

Incorporation will allow us to fight a lot more bad gun laws and McDonald vs. Chicago is the fastest, best way to get there.

doorman
03-31-2010, 10:19 AM
California is a contradiction. This is in the California constitution but just look at what they are doing with the MLPA.

"CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS


Section 25. The people shall have the right to fish upon and from
the public lands of the State and in the waters thereof, excepting
upon lands set aside for fish hatcheries, and no land owned by the
State shall ever be sold or transferred without reserving in the
people the absolute right to fish thereupon; and no law shall ever be
passed making it a crime for the people to enter upon the public
lands within this State for the purpose of fishing in any water
containing fish that have been planted therein by the State;
provided, that the legislature may by statute, provide for the season
when and the conditions under which the different species of fish
may be taken.
"

bohoki
03-31-2010, 2:40 PM
my liberatarian gut wants to say yes but thinking about it further with judicial rulings as precident maybe not since they are the ones that interpret what our "rights" are

since there are guns that we can buy and possess and the state says which ones we cannot own how is that any different from the federal laws that are allowed to stand under the second amendment?

as to the process of obtaining a ccw i see californias rules contrary to the spirit of equal protection

a1c
03-31-2010, 2:56 PM
Actually, California DOES have a handgun ban!! They ban certain handguns that don't meet certain requirements. Based on ??? Their expertise? Who in this state is the deciding authority? name, rank and serial #

Maybe you're being rhetorical. Not sure.

So here it is: the deciding authority is the California DOJ. The criteria used are firing, safety, and drop tests. That doesn't mean that all guns are tested: some manufacturers don't even bother submitting some models to the DOJ, either because they know the handguns won't pass, or because the potential market doesn't justify the expense.

Legal regulation text about the lab tests is here:
http://ag.ca.gov/firearms/regs/chapter5.pdf
http://ag.ca.gov/firearms/regs/chapter6.pdf

Do I think it's annoying or excessive? Hell yeah. I wanted to get my hands on a P239 SAS Gen 2 two-tone, and it looks like it's not on the roster.

Is it a handgun prohibition? Nope. It's a regulation, and it's not one of those prohibitions that masquerades itself as a prohibition, making it impossible to get a handgun. Truth is, we can still get a handgun fairly easily in this state (try NYC, and enjoy the red tape).

Paragun
03-31-2010, 3:11 PM
So what are the thoughts about these parts of the California Constitution?

This does not apply to CCW issuance?
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 7.
(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.

Do these two contradict each other?
CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA

SEC. 1. 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.

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SEC. 24. Rights guaranteed by this Constitution are not dependent
on those guaranteed by the United States Constitution.

Flopper
03-31-2010, 3:18 PM
Is it a handgun prohibition? Nope. It's a regulation

First jury nullification, now this???

It sure as hell IS a prohibition. Just because you can jump through a bunch of hoops and eventually get what you want does NOT make it NOT a prohibition.

Certain handguns most certainly are PROHIBITED, and the only way to get them is through loopholes.

The fact that a specific handgun is legal, while the EXACT same handgun save a superficial difference (color) is PROHIBITED, is the last nail in the coffin.

Colt-45
03-31-2010, 3:24 PM
Actually, California DOES have a handgun ban!! They ban certain handguns that don't meet certain requirements. Based on ??? Their expertise? Who in this state is the deciding authority? name, rank and serial #

It isn't worded as a ban but in a sense it is. Not many of the big manufacturing companies will be making nice guns with the ridiculous magazine disconnect feature and if one is made with that crap I will not buy it. That magazine disconnect thing basically wipes out a big amount of older handguns that don't qualify as C&R yet but are no longer in production or the most recent ones that don't meet the requirements to be on the roster. We can only buy guns already on the roster before that stupid law came into effect, if you see it on consignment or if you're lucky enough to find someone that has it for sale. Cool new handguns that come out for the rest of the US are not available in Commiefornia.

There are several ways to get these off roster firearms into the state legally but lets face it not very many of us are LEO's, are willing to move in and out of the state just for some hand guns or have dad and grandpa living outside the state.

***IMO*** The handgun roster is the stupidest gun law in the state. I really hope it dies first.

wash
03-31-2010, 4:03 PM
I want to see the roster go away too, it's just not anywhere near as bad as Chicago's ban.

The fact that there are lots of handguns that you can buy and you can get an off roster gun if you really want to means that a straight challenge without incorporation is doomed to fail.

When we had incorporation we quickly filed the Peņa case. The Nordyke enbanc is the only thing holding it up and Nordyke was held up waiting for McDonald vs. Chicago because it is an incorporation case at SCOTUS instead of the circuit court level.

We are already fighting to get rid of the roster, it's just held up by the courts. I'm not going to say it's held up for good reasons, it's just the way the system works.

It might seem slow but the system is working. Incorporation seems to be the highly likely outcome for McDonald vs. Chicago and then the California cases will pick up where they left off after the Nordyke enbanc.

The sad thing is that in the long run the Nordyke enbanc could be a positive thing (if the Nordykes win their case) but the "UOC movement" caused bad legislation while we've been waiting.

Everyone needs to be patient, good things are happening.

jshoebot
03-31-2010, 6:40 PM
It seems to me that every mala prohibitum law against guns are unConstitutional. Remember the "...shall not be infringed." part?

a1c
03-31-2010, 6:49 PM
First jury nullification, now this???

It sure as hell IS a prohibition. Just because you can jump through a bunch of hoops and eventually get what you want does NOT make it NOT a prohibition.

Actually, you just defined why it's not really a prohibition (nor a ban). There is no handgun ban in California. Period. But if you want to call it a prohibition or a ban, go ahead.

N6ATF
04-01-2010, 12:36 AM
Actually, you just defined why it's not really a prohibition (nor a ban). There is no handgun ban in California. Period. But if you want to call it a prohibition or a ban, go ahead.

Actually, I think it was hoffmang or bweise who once said something like:
All new handguns are banned in CA by default, the roster lists the exceptions to the ban.

Seesm
04-01-2010, 1:09 AM
I am going to go with a BIG yeah...

juicemansam
04-01-2010, 3:03 AM
So what are the thoughts about these parts of the California Constitution?

This does not apply to CCW issuance?
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 7.
(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.

Would Law Enforcement qualify as a "class of citizens?" I think so. So how about them laws pertaining to the roster and round capacity? :shifty:

motorhead
04-01-2010, 9:27 AM
um, yeah. all gun laws are unconstitutional. i can't think of any that were constitutional amendments.
shall not be infringed, remember that line?

Flopper
04-01-2010, 9:55 AM
Actually, I think it was hoffmang or bweise who once said something like:
All new handguns are banned in CA by default, the roster lists the exceptions to the ban.

Exactly.

He also conveniently left out or ignored this part of my post:
"Certain handguns most certainly are PROHIBITED, and the only way to get them is through loopholes."

dilligaffrn
04-01-2010, 9:58 AM
YES

IMHO they are the definition of infringe...

Main Entry: in·fringe
Pronunciation: \in-ˈfrinj\
Function: verb
Inflected Form(s): in·fringed; in·fring·ing
Etymology: Medieval Latin infringere, from Latin, to break, crush, from in- + frangere to break — more at break
Date: 1513

transitive verb 1 : to encroach upon in a way that violates law or the rights of another <infringe a patent>
2 obsolete : defeat, frustrateintransitive verb : encroach —used with on or upon <infringe on our rights>
synonyms see trespass

— in·fring·er noun

eszepher
04-02-2010, 5:19 PM
Ok, I have a question. They say if California legalizes pot, the Feds will put a stop to it and enforce it. They say feds can overide the states laws. Then I heard The federal law trumps state laws. Wouldn't it work the same way with gun laws? The Feds say I can have an "assault" weapon, but the state says no. Who trumps who hear? Anyone?

a1c
04-02-2010, 5:24 PM
um, yeah. all gun laws are unconstitutional. i can't think of any that were constitutional amendments.
shall not be infringed, remember that line?

Even Scalia disagrees with you. Saying that any gun law is unconstitutional is like saying that calling for someone's murder or screaming "Fire!" in a theater is protected by the First Amendment.

MadMax
04-02-2010, 5:32 PM
Short answer, Yarp

I would also like to know who would win in the federal state debate.

virulosity
04-02-2010, 9:58 PM
Unconstitutional? Does that even matter? All of the laws in our country are meaningless as long as you have money or a position of power. If you don't have those things then you just have to abide by those that do. Laws and constitutions are irrelevant beyond giving average citizens the impression that they live in a "free" world.

Sorry to sound like the guy that told you Santa isn't real.

a1c
04-02-2010, 10:28 PM
Unconstitutional? Does that even matter? All of the laws in our country are meaningless as long as you have money or a position of power. If you don't have those things then you just have to abide by those that do. Laws and constitutions are irrelevant beyond giving average citizens the impression that they live in a "free" world.

Sorry to sound like the guy that told you Santa isn't real.

C'mon. You know, I lived in other countries and visited many others where I have friends or family. As imperfect and flawed as many things are in this country, citizens enjoy more freedom here than anywhere else in the world.

virulosity
04-03-2010, 8:20 PM
C'mon. You know, I lived in other countries and visited many others where I have friends or family. As imperfect and flawed as many things are in this country, citizens enjoy more freedom here than anywhere else in the world.

I would have to agree with you. It all depends on what you compare yourself to. I just wish our legislators would hold themselves to a higher standard. I don't hate America, I love it, and I think that is why I feel so strongly about certain things. I apologize if I gave anyone the wrong impression.