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xxsleepyxx
08-03-2010, 9:05 AM
Or are people on this forum fantasizing? I hear 16-24 months is the time frame. That seems optimistic but far from realistic. What is going to change between now and then? Those court cases pertaining to firearms...say they are won in favor of retaining 2nd Amendment rights in CA. How will it affect citizens and agencies: sheriffs, local Police departments. Will they be legally obligated to become shall-issue or can they also defy law and set up their own rules.

What I'm saying here is that people on this forum believe a few court cases will change everything. I'm thinking the rest of the authorities who control our chances of CCW will continue to be adamant about allowing licenses. What do you guys think?

wellerjohn
08-03-2010, 9:11 AM
There's lots of reason the be optimistic, but you live in California so I would not hold my breath waiting!

guayuque
08-03-2010, 9:13 AM
Doubtful, for may reasons, sadly. Most of those cases will take years to be finalized, far longer than two years. Most cases will go at the problem incrementally rather than attack the issue directly. The courts will rule narrowly. CA will likely just adjust to tray and fit in CCW within any new court rulings and new cases will have to be filed to test the adjustment.

We could get lucky and the right case, right plaintiff, right court makeup, but two years? Again, doubtful. Even if everything went right and the California Supreme rather than US Supreme COurt found the disparity among counties violative of consitutional norms and found that any discretion violated 2d A as it now stands (which is a giant, giant leap given the narrow ruling), 3-5 years anyway.

Gray Peterson
08-03-2010, 9:13 AM
Or are people on this forum fantasizing? I hear 16-24 months is the time frame. That seems optimistic but far from realistic. What is going to change between now and then? Those court cases pertaining to firearms...say they are won in favor of retaining 2nd Amendment rights in CA. How will it affect citizens and agencies: sheriffs, local Police departments. Will they be legally obligated to become shall-issue or can they also defy law and set up their own rules.

What I'm saying here is that people on this forum believe a few court cases will change everything. I'm thinking the rest of the authorities who control our chances of CCW will continue to be adamant about allowing licenses. What do you guys think?

I posted this about Maryland, but it just as much applies to California.

Let me clue you in on something at least in regards the lawsuits against DC and Chicago versus a lawsuit filed against the MSP for the way they enforce "good and substantial reason".

In the case against the District of Columbia and the later case against Chicago, those were both against municipal codes and statutes. The problem with asking for strike downs of municipal codes and statutes is that the cities can just write new laws, like what happened in Chicago and DC.

In the Sykes and Peruta cases, those were lawsuits to make "good cause" to be "self defense" and "good moral character" to be "not prohibited by law", and that may really means shall in a legal context. They are essentially policy directives by the federal courts to the issuing authority to stop enforcing a mealy mouth statute that gives them discretion to deny and basically forces them to issue freely in order to comply with the U.S. constitution.

The Maryland State Police, when given a directive by a federal judge that "good and substantial reason" means "self defense", The MSP will not be able to put in Byzantine requirements like DC and Chicago did. Remember, it's a constitutional ruling against the way a POLICY is enforced, not the actual statute or statutory prohibition. The federal courts have had long experience in enforcing their decisions and decrees. If the Superintendent of the State Police refuses to comply with the court ruling, he will be held in contempt and then he will be picked up by the US Marshal's Court Security Services Division and taken to the local federal holding facility until he complies with the law, by signing the order inside of the jail cell. If they try to pass byzantine requirements, the federal judge will hold the superintendent in contempt, and a refusal to comply will mean a US Marshals escort to a federal holding facility.

Contrast this with the Palmer case (which is seeking to strike down the District of Columbia's total carry ban), and my case (which seeks to strike down the state residency requirement before acquiring a CHL in the city and county of Denver, CO). Though DC could rewrite the statute if Palmer wins, If I win my case against Denver, Denver cannot rewrite the statute themselves since it is a function of state law and the Legislature cannot just simply rewrite the law to revoke my license or cause problems, as there is no political will in Colorado to screw with CCW holders in general, and would likely be injuncted against by the same federal judge in the same case (especially if they try to screw with the validity of the license I paid for, and got a court order to get). Again, these are statutory strike downs. A suit against MSP does not require a statutory strike down.

The only reason you're not familiar with these concepts is that for the first time, the 2nd amendment has NOW been properly recognized as a fundamental right. Federal injunctions, motions to compel, writs of mandamus, special masters and contempt citations have never been done in 2A cases before because up until McDonald, the very concept of that is foreign and alien to those of us who fought so hard for the right to keep and bear arms. Years of fighting this battles can make one cynical.

ScottB
08-03-2010, 9:14 AM
Unless there is a good case well on its way through the courts, that seems pretty quick. I expect we will see a pattern of various counties and agencies settling with individual plaintiffs in order to head off any precedent-setting court rulings. That tactic could delay a judicial remedy indefinitely

wildhawker
08-03-2010, 9:24 AM
Unless there is a good case well on its way through the courts, that seems pretty quick. I expect we will see a pattern of various counties and agencies settling with individual plaintiffs in order to head off any precedent-setting court rulings. That tactic could delay a judicial remedy indefinitely

Scott, see Gray's post above.

wildhawker
08-03-2010, 9:26 AM
While we again find ourselves in disagreement on an issue of this nature, I'm also a bit perplexed as to your approach. Why would we litigate in California state courts?

What could you be doing to help?


Doubtful, for may reasons, sadly. Most of those cases will take years to be finalized, far longer than two years. Most cases will go at the problem incrementally rather than attack the issue directly. The courts will rule narrowly. CA will likely just adjust to tray and fit in CCW within any new court rulings and new cases will have to be filed to test the adjustment.

We could get lucky and the right case, right plaintiff, right court makeup, but two years? Again, doubtful. Even if everything went right and the California Supreme rather than US Supreme COurt found the disparity among counties violative of consitutional norms and found that any discretion violated 2d A as it now stands (which is a giant, giant leap given the narrow ruling), 3-5 years anyway.

dchang0
08-03-2010, 9:27 AM
This is sort of glib, but still true:

YES, as long as we keep up the fight and keep donating to our legal groups, calling our legislators, voting appropriately, and organizing at the grassroots level.

Nothing will be denied us as long as we stay committed to our goal.

Gray Peterson
08-03-2010, 9:27 AM
Doubtful, for may reasons, sadly. Most of those cases will take years to be finalized, far longer than two years. Most cases will go at the problem incrementally rather than attack the issue directly. The courts will rule narrowly. CA will likely just adjust to tray and fit in CCW within any new court rulings and new cases will have to be filed to test the adjustment.

We could get lucky and the right case, right plaintiff, right court makeup, but two years? Again, doubtful. Even if everything went right and the California Supreme rather than US Supreme COurt found the disparity among counties violative of consitutional norms and found that any discretion violated 2d A as it now stands (which is a giant, giant leap given the narrow ruling), 3-5 years anyway.

You realize this is a manner of the way "good cause and good moral character" is enforced against self defense, not a statutory strike-down like with Chicago and DC where they can just rewrite the code, right?

Gray Peterson
08-03-2010, 9:28 AM
Unless there is a good case well on its way through the courts, that seems pretty quick. I expect we will see a pattern of various counties and agencies settling with individual plaintiffs in order to head off any precedent-setting court rulings. That tactic could delay a judicial remedy indefinitely

There will always be one sheriff who will resist giving up their power to decide who lives and who dies at the hands of criminals. Besides, we have organizational plaintiffs now with both Peruta and Sykes. Which means that unless they change their entire policy for everyone in the sued counties to personal protection/self defense, they will not settle.

GuyW
08-03-2010, 10:18 AM
There will always be one sheriff who will resist giving up their power to decide who lives and who dies at the hands of criminals.

That is a very good SHORT statement of the CCW issue that un-committeds can grasp...
.

Gray Peterson
08-03-2010, 10:20 AM
That is a very good SHORT statement of the CCW issue that un-committeds can grasp...
.

Worst part is, it's not hyperbole.

professorhard
08-03-2010, 10:21 AM
Eventually? yes. Soon? no.

gunsmith
08-03-2010, 10:27 AM
What is going to change between now and then? Those court cases pertaining to firearms...say they are won in favor of retaining 2nd Amendment rights in CA.
We won incorporation this past June- it's a whole new ballgame.
Not only are we winning here but in much worse places like Chicago. NY/NJ/MD and Hawaii soon too.

Next I want to see homeless ppl ( they all claim to be vets )
be able to carry.

So, yup -in two years you can visit and carry in NYC on your CA ccw!

I read an article that said a grown man was crying about the Chicago case on TV.
It made me smile.
Weep liberals weep!!!

Gray Peterson
08-03-2010, 10:31 AM
Eventually? yes. Soon? no.

Sooner than you think.

professorhard
08-03-2010, 10:35 AM
Sooner than you think.

Thats what I like to hear:cheers2:

hill billy
08-03-2010, 10:45 AM
There will always be one sheriff who will resist giving up their power to decide who lives and who dies at the hands of criminals. Besides, we have organizational plaintiffs now with both Peruta and Sykes. Which means that unless they change their entire policy for everyone in the sued counties to personal protection/self defense, they will not settle.

I've read this already, but like the old man and the Marine, I still like to hear it. :D

trevilli
08-03-2010, 10:55 AM
No, I don't think it will ever be 'shall-issue' and here's why. As far as I know, all these other states became 'shall-issue' because the state legislature passed a law saying just that.

The Maryland State Police, when given a directive by a federal judge that "good and substantial reason" means "self defense", The MSP will not be able to put in Byzantine requirements like DC and Chicago did. Remember, it's a constitutional ruling against the way a POLICY is enforced, not the actual statute or statutory prohibition.

Exactly. If California is subject to a similar lawsuit like Gray quoted above, there is nothing stopping the legislature from passing a law prohibiting CCW except by members of the police.

I think it's just like Open Carry. Yes, it is legal now, but the legislature is in the process of changing that. I don't believe the MacDonald decision explicitly dealt with carry. Until or unless the Supreme Court explicitly rules on the carry question, states like CA will be free to prohibit it.

The people of California, as expressed through their election of a majority of anti-gun legislators are clearly saying "We do not want liberal gun laws in our state." California will not be 'shall-issue' until the composition of the state legislature changes radically.

wash
08-03-2010, 11:03 AM
This is funny. We aren't going to keep seeing losses and appeals in these cases any more.

The Sykes case is about a year old already. I'm not sure if it's still held up but it should move through court about as fast as any other case once it is allowed to continue.

I for one don't see how it's supposed to take 16 months to figure it out since they now know that the right to keep and bear arms is fundamental. I think we should see a result by the spring as long as the defense doesn't drag it's feet the whole way.

I could be wrong about the speed of the court, but still the case is a year old already, it should be ready to start moving faster. After that Sacramento will be shall issue and that will effectively make California shall issue because city attorneys will understand that fighting for discretionary issue is a looser case.

So, in 16 months I would say 99.5% chance that Ca is shall issue. The other 0.5% is if the judge wants to get overturned on apeal, that might be the 24 months option.

Gray Peterson
08-03-2010, 11:23 AM
Exactly. If California is subject to a similar lawsuit like Gray quoted above, there is nothing stopping the legislature from passing a law prohibiting CCW except by members of the police.


Wrong again. We can go in front of the same judge and get an injunction/TRO against the new law taking effect. Once right to carry has been declared a fundamental right to be accessible via a license (under Sykes or Peruta), the Legislature yanking the licenses away and banning carry will not fly.

There are also 40K CCW holders, and 25K of them are among the most politically powerful members of the California Political Class. They will not tolerate their licenses being yanked, either.

ned946
08-03-2010, 11:26 AM
I hear 16-24 months is the time frame.

Strange, I've heard the same thing in a casual conversation w/ someone who might have legitimate info..... :confused:

DVSmith
08-03-2010, 11:34 AM
I thought someone here posted something about two weeks... :D

Gray Peterson
08-03-2010, 11:36 AM
I thought someone here posted something about two weeks... :D

:ban:

Rivers
08-03-2010, 11:41 AM
This is begging for a pool. Pick a date to see who comes closest to when CA effectively becomes "shall issue" statewide.

Winner gets to donate $20 to the CalGuns Legal Foundation. All other entries get to donate $20 to the CalGuns Legal Foundation. Want to pick more dates, donate more. First person to pick a date gets that date, only one person per date. In the event of a winning date with nobody picking that date, the closest before or after wins. In the event of a tie, the first date AFTER wins.

Maybe there would be other prizes as well.

Hey, my 500th post! The champagne corks are popping!!!

Crom
08-03-2010, 11:45 AM
These two civil rights cases could change it all for us. That is the hope and expectation. I am going to venture to say that conceal carry may be fixed for us on or around March-June 2010. The Peruta case will probably go to trial in March 2011 and probably last a week.


Sykes v. McGinness (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness) Carry in Yolo and Sacramento Counties, May 2009
Peruta v. County of San Diego (http://wiki.calgunsfoundation.org/index.php/Peruta_v._County_of_San_Diego) Carry in San Diego County, October 2009

There is a third lawsuit that I know of but the consensus is that it may hurt us more than help us.

Gray Peterson
08-03-2010, 12:03 PM
This is begging for a pool. Pick a date to see who comes closest to when CA effectively becomes "shall issue" statewide.

Winner gets to donate $20 to the CalGuns Legal Foundation. All other entries get to donate $20 to the CalGuns Legal Foundation. Want to pick more dates, donate more. First person to pick a date gets that date, only one person per date. In the event of a winning date with nobody picking that date, the closest before or after wins. In the event of a tie, the first date AFTER wins.

Maybe there would be other prizes as well.

Hey, my 500th post! The champagne corks are popping!!!

I have a $200 bet rolling that my friend from Alameda County will be able to get his CCW within 10 years. He thinks it'll never happen and California would succeed. I told him that we burned the South last time a state or group of states tried to secede. Doesn't seem to get through to him that things are a changing.

When he pays up, I'm going to take up my netbook and tell him to donate to CGF.

FirstFlight
08-03-2010, 12:09 PM
Are we talking "shall issue" or a good cause of "Personal Protection?"

trevilli
08-03-2010, 12:13 PM
Wrong again. We can go in front of the same judge and get an injunction/TRO against the new law taking effect. Once right to carry has been declared a fundamental right to be accessible via a license (under Sykes or Peruta), the Legislature yanking the licenses away and banning carry will not fly.

I think you're getting ahead of yourself. Sykes, Peruta, even your own case appears far from a foregone conclusion to me. Personally, I think even if these cases are decided in our favor, the cities will appeal them. Sooner or later, the Supreme Court will have to weigh in on the carry question.

There are also 40K CCW holders, and 25K of them are among the most politically powerful members of the California Political Class. They will not tolerate their licenses being yanked, either.
Right. Should we enumerate the number of laws that either apply to the Political Class, or do not apply to them as they see fit?

Left Coast Conservative
08-03-2010, 12:17 PM
Exactly. If California is subject to a similar lawsuit like Gray quoted above, there is nothing stopping the legislature from passing a law prohibiting CCW except by members of the police.


However, once carry is recognized as a fundamental right by the court, such a law may be struck down as unconstitutional, right? Once again, Heller and McDonald alter what is permissible. If that is not the case, why have conservative legislatures in other states not outlawed abortion? Roe v. Wade identified a fundamental right to abortion.

McDonald is the Roe v. Wade for the right to keep and bear arms.

trevilli
08-03-2010, 12:35 PM
Yes, absolutely. Once Carry is seen as a fundamental right, the laws may be struck down. But are we there yet? AB 1934 is full steam ahead last time I checked.

GuyW
08-03-2010, 12:38 PM
Sooner than you think.

(paraphrase Han Solo)

I don't know - I can imagine "pretty soon"...

.

xxsleepyxx
08-03-2010, 12:39 PM
Can they deny your application because they don't like you? Or does shall issue mean anyone who can purchase a gun also carry one?

GuyW
08-03-2010, 12:41 PM
If California is subject to a similar lawsuit like Gray quoted above, there is nothing stopping the legislature from passing a law prohibiting CCW except by members of the police.


Really? Then the legislators, judges, (self)important people, the campaign contributors etc etc, don't have permits. How do you think that'll play?
.

wash
08-03-2010, 12:47 PM
I think you're getting ahead of yourself. Sykes, Peruta, even your own case appears far from a foregone conclusion to me. Personally, I think even if these cases are decided in our favor, the cities will appeal them. Sooner or later, the Supreme Court will have to weigh in on the carry question.


Right. Should we enumerate the number of laws that either apply to the Political Class, or do not apply to them as they see fit?
OK so you think a judge is going to write an opinion that states that while the keep part of keep and bear arms is a fundamental civil right, the bear part is not?

That makes no sense.

There may be one judge that is dumb enough to write that opinion but it will lose on apeal so fast that their head will spin while it's still in their ***.

By the same token there might be one defendant dumb enough to apeal a loss and the apeal court probably wouldn't even hear the case.

There has to be a line of really stupid judges leading to SCOTUS for this question to ever reach them. I just don't believe it exists and even if it did, the anti's aren't lucky enough to get one at every level.

There will be no surprises, there will be no en banc (I hope), CA will be shall issue (self defense=good cause).

gunsmith
08-03-2010, 12:55 PM
Racist back in the old days thought they could keep African Americans from voting & going to school where ever they felt like. I believe it was Brown V Board of Ed or something- incorporation fixed the racist then and it will fix them today.

Current gun law is based on Cruickshank a foul racist law it was taken apart bit by bit in the 60's but racist liberals kept the part that included gun law.

Racist liberals do not mind black police officers/Presidents/Army but they quake at the idea of Lil Wayne carrying a gun. Incorporation made racist accept African Americans as equals back in the 60's and will make racist liberals accept RKBA for blacks/latino's gay's and every other minority . Racist liberals have no problem with only rich folks having ccw but in a couple of years all that changes.
Thanks to Gura & Otis.

weep liberals weep!

FREE LIL WAYNE ( even though I hate his music )

wildhawker
08-03-2010, 12:55 PM
Trevilli,

We very much hope they appeal.

AB1934 is not a "carry" issue in a 2A sense.

Gray Peterson
08-03-2010, 12:58 PM
By the same token there might be one defendant dumb enough to apeal a loss and the apeal court probably wouldn't even hear the case.

3 judge appeals court panels must take the appeal. Beyond that, it's an optional.

OleCuss
08-03-2010, 1:01 PM
OK, IANAL, but I've been following for a while.

It might be worth remembering that Rothery/Gorski is out there and may be moving faster than Sykes, Peruta, etc. That may be good or bad - but it certainly doesn't make me rest easy.

But in any case, don't forget what Ajax22 is doing. His move may make nationwide CCW a reality within the next 7-8 months although the cost will be higher than should be Constitutionally necessary (not saying that Montana will be doing anything unconstitutional but that we shouldn't have to use their good services in order to exercise our rights).

You get Montana issuing what will effectively be nationwide CCW permits and other states may decide to join the party and you could have what will effectively be economic and political pressure/competition breaking down the barriers as well.

We appear to be living in eventful times so far as the furthering of the RKBA is concerned.

trevilli
08-03-2010, 1:02 PM
OK so you think a judge is going to write an opinion that states that while the keep part of keep and bear arms is a fundamental civil right, the bear part is not?

That makes no sense.
Everything about our legal system makes sense? Neither MacDonald nor Heller gives the local governments any guidance whatsoever in determining how much they can regulate guns. What the decisionsdid say is that you cannot indiscriminately ban guns (heller), the 2nd amendment is incorporated against the states (macdonald).


There may be one judge that is dumb enough to write that opinion but it will lose on apeal so fast that their head will spin while it's still in their ***.

By the same token there might be one defendant dumb enough to apeal a loss and the apeal court probably wouldn't even hear the case.

There has to be a line of really stupid judges leading to SCOTUS for this question to ever reach them. I just don't believe it exists and even if it did, the anti's aren't lucky enough to get one at every level.

There will be no surprises, there will be no en banc (I hope), CA will be shall issue (self defense=good cause).
Both Heller and MacDonald allow for "sensible" gun laws. But they didn't bother telling us what sensible is defined to be. They have decided to leave that to the lower courts to hash out. So you're telling me that all lower courts will agree with you, and interpret MacDonald the same way you do? I sure hope you are right. But if you aren't, they will work their way through the court system, the same way both MacDonald and Heller did.

trevilli
08-03-2010, 1:08 PM
Trevilli,

We very much hope they appeal.

AB1934 is not a "carry" issue in a 2A sense.
Sorry, who appeals what? :D

I have about 4 people arguing with me. My family lives in Ohio. Ohio became shall issue a few years ago, and it's a great thing. I desperately want CA to be shall-issue too, but I see our duly elected representatives in Sacramento fighting this every step of the way.

So AB1934 bans open carry. How is this not a "carry" issue in the 2A sense, please enlighten me.

trevilli
08-03-2010, 1:13 PM
http://www.kqed.org/epArchive/R201007190900

Interesting discussion here.

Relevant to our discussion I think. But it did occur back on Jul 19th so it's probably old news for many folks here.

guayuque
08-03-2010, 1:14 PM
While we again find ourselves in disagreement on an issue of this nature, I'm also a bit perplexed as to your approach. Why would we litigate in California state courts?

What could you be doing to help?

California has concurrent jursidiction to adjudicate federal consitutional matters. It is conceivable, though I am not dedicating any great deal of thought to the matter ot be sure, to file a state case to enforce a federal constitutional right. Happens all the time. I was just pointing out that even if that shorter time frame was employed shall issue is nowhere near only 18-24mos away.

Crom
08-03-2010, 1:14 PM
I don't know if it is even worth hoping for but there seems to be some federal legislation out there to make states honor each others CCW permits. (http://www.govtrack.us/congress/bill.xpd?bill=h111-197) But it seems to be stalled out in committees.

guayuque
08-03-2010, 1:16 PM
You realize this is a manner of the way "good cause and good moral character" is enforced against self defense, not a statutory strike-down like with Chicago and DC where they can just rewrite the code, right?

I don;t see how that would matter as to a timeline. MacDonald is probably just too narrow to allow decent attack on the shall issue front.

guayuque
08-03-2010, 1:17 PM
I don't know if it is even worth hoping for but there seems to be some federal legislation out there to make states honor each others CCW permits. (http://www.govtrack.us/congress/bill.xpd?bill=h111-197) But it seems to be stalled out in committees.

That would be the shortest solution but you will have a problem of state rights there, I think.

guayuque
08-03-2010, 1:23 PM
This is funny. We aren't going to keep seeing losses and appeals in these cases any more.

The Sykes case is about a year old already. I'm not sure if it's still held up but it should move through court about as fast as any other case once it is allowed to continue.

I for one don't see how it's supposed to take 16 months to figure it out since they now know that the right to keep and bear arms is fundamental. I think we should see a result by the spring as long as the defense doesn't drag it's feet the whole way.

I could be wrong about the speed of the court, but still the case is a year old already, it should be ready to start moving faster. After that Sacramento will be shall issue and that will effectively make California shall issue because city attorneys will understand that fighting for discretionary issue is a looser case.

So, in 16 months I would say 99.5% chance that Ca is shall issue. The other 0.5% is if the judge wants to get overturned on apeal, that might be the 24 months option.

No way. A trial or other submission at the trial level probably won't be scheduled after remand for another year. Then you have another year or two for the first level of appeal, possibly another year or two for an en bacn hearing, and then another year or two for final appellate review. After that, then CA will change the statute if its loses and you start the process over again.

guayuque
08-03-2010, 1:24 PM
Wrong again. We can go in front of the same judge and get an injunction/TRO against the new law taking effect. Once right to carry has been declared a fundamental right to be accessible via a license (under Sykes or Peruta), the Legislature yanking the licenses away and banning carry will not fly.

There are also 40K CCW holders, and 25K of them are among the most politically powerful members of the California Political Class. They will not tolerate their licenses being yanked, either.

You are assuming that there will be a ruling that CCW is a fundamental right. That is a pretty big assumption and one that would be astonshing to see given the narrow confines of MacDonald.

hoffmang
08-03-2010, 1:29 PM
So AB1934 bans unloaded open carry. How is this not a "carry" issue in the 2A sense, please enlighten me.

Fixed the above for you. Unloaded firearms aren't the ones that you have a fundamental enumerated right to keep and bear. States are going to get to regulate the time place and manner of carry, but not prohibit it to the otherwise eligible firearms owner. California could allow loaded open carry and have the current CCW laws/implementations found constitutional, but loaded open carry is illegal in all populated areas. Soon unloaded open carry will be illegal too barring an unforeseen change in the path on AB 1934.

I hear a lot of the silly defeatism of people who didn't read Heller or McDonald. If you don't have a right to bear/carry loaded arms then why are schools sensitive places? I mean, if you can't bear arms outside of your house then there is no reason to even discuss sensitive places because inside your house is never a sensitive place.

Logic does actually apply to some parts of law.

-Gene

Crom
08-03-2010, 1:30 PM
That would be the shortest solution but you will have a problem of state rights there, I think.

No. Federal law supersedes state law. If you took the time to read it you wold know that it forces the states to honor the permits of other states.

Here is the bill text: http://www.govtrack.us/congress/billtext.xpd?bill=h111-197

OleCuss
08-03-2010, 1:30 PM
You are assuming that there will be a ruling that CCW is a fundamental right. That is a pretty big assumption and one that would be astonshing to see given the narrow confines of MacDonald.

Please educate this non-lawyer? Why would that be astonishing? McDonald seems to clearly incorporate the RKBA against the states and provides the basis for strict scrutiny to be applied. That likely means that the courts will require at least one of LOC or CCW be allowed in each state. Since LOC is more illegal than CCW in this state the natural/default in the state is CCW. Makes sense to this non-lawyer that after Sykes/Peruta that the courts will mandate Shall-issue for Kalifornia.

taperxz
08-03-2010, 1:34 PM
So what you are saying, to a non legal type person, is that the combination of existing laws and incorporation of new litigation will help the situation?

Gray Peterson
08-03-2010, 1:36 PM
You are assuming that there will be a ruling that CCW is a fundamental right. That is a pretty big assumption and one that would be astonshing to see given the narrow confines of MacDonald.

I never said CCW was going to be determined to be a fundamental right. I said "carry" will be a fundamental right. Big difference.

taperxz
08-03-2010, 1:37 PM
The other thing that strikes me as being odd is that the UOC bill is really going to hurt the antis position. Does Saldana want us to be able to CCW statewide? Or is she so messed up that she doesnt even know our rights are being restored.

Gray Peterson
08-03-2010, 1:38 PM
The other thing that strikes me as being odd is that the UOC bill is really going to hurt the antis position. Does Saldana want us to be able to CCW statewide? Or is she so messed up that she doesnt even know our rights are being restored.

She's so anti-OC that she'll shoot herself in the foot figuratively.

taperxz
08-03-2010, 1:39 PM
She's so anti-OC that she'll shoot herself in the foot figuratively.

It almost seems like she is not paying attention to what is going on nationwide. I am surprised her own people are not telling her she is hitting herself on the head with her own hammer.

Rossi357
08-03-2010, 1:44 PM
Everyone may or may not be aware of how the gun cases are progressing. First, they changed the 2nd amendment from a collective right to an individual right. They used Heller as a vehicle. This case was humongus.
Then they used McDonald as a vehicle to get the 2nd amendment incorporated against the states. After Heller, this was a no brainer.
Now, the legal eagles are methodically taking the draconian state laws apart with cases that are easier to win. The more case law they stack up behind Heller and McDonald, the easier it gets.
I predict that in a few years, we will have the same freedoms as AZ and the Brady bunch will go the way of the Dodo bird.

Gray Peterson
08-03-2010, 1:46 PM
So what you are saying, to a non legal type person, is that the combination of existing laws and incorporation of new litigation will help the situation?

It's a combination of three particular factors:

A) Federal judicial intervention into the CCW process by mandating good cause be self defense and good moral character be "statutorily prohibited persons.

B) The current restrictions of state statute and state case law on CCW (such as PC12054 for the charging of fees, remember my post about tracking down counties which are illegally charging fees and violating state law? I'm still working on that, so quietly, stay tuned for another post on this soon). The only things that the sheriffs and chiefs of police have any discretion whatsoever over the issuance of licenses is "good cause" and "good moral character". They cannot, for example, require you to acquire liability insurance or require you to register your firearms (both cost money in fees beyond PC12054(d), and forced registration violates GC53071).

C) The willingness of the politically powerful CCW holders to protect their investment in their own CCW's. They will not tolerate the Legislature to screw with their licenses. The Legislature cannot set up a seperate licensing system for the politically powerful and then leave the rest of us twisting in the wind (a federal judge will injunct against that).

Gray Peterson
08-03-2010, 1:48 PM
It almost seems like she is not paying attention to what is going on nationwide. I am surprised her own people are not telling her she is hitting herself on the head with her own hammer.

Don't give her any ideas.

Rossi357
08-03-2010, 2:02 PM
It almost seems like she is not paying attention to what is going on nationwide. I am surprised her own people are not telling her she is hitting herself on the head with her own hammer.

Don't force it, just get a bigger hammer.

Maestro Pistolero
08-03-2010, 3:50 PM
Fixed the above for you. Unloaded firearms aren't the ones that you have a fundamental enumerated right to keep and bear. States are going to get to regulate the time place and manner of carry, but not prohibit it to the otherwise eligible firearms owner. California could allow loaded open carry and have the current CCW laws/implementations found constitutional, but loaded open carry is illegal in all populated areas. Soon unloaded open carry will be illegal too barring an unforeseen change in the path on AB 1934.

I hear a lot of the silly defeatism of people who didn't read Heller or McDonald. If you don't have a right to bear/carry loaded arms then why are schools sensitive places? I mean, if you can't bear arms outside of your house then there is no reason to even discuss sensitive places because inside your house is never a sensitive place.

Logic does actually apply to some parts of law.

-Gene
Gene why not go directly after the part of the law that say it must be unloaded? Since CA has open carry right now, albeit retarded, unloaded open carry, why not just sue for the law's obvious unconstitutionality according to Heller's functional firearm requirement? If we get LOC, then banning UOC would essentially be preempted.

yellowfin
08-03-2010, 4:13 PM
What makes you think he hasn't already?

Maestro Pistolero
08-03-2010, 4:17 PM
What makes you think he hasn't already?
I wouldn't be the least bit surprised, but it would not be any case I am familiar with, and I'm pretty sure I've read them all. Watching 'em ban UOC while getting LOC protected would be very rich irony, would it not? I think an LOC picnic in Saldana's honor would be a riot. We would truly be in her debt at that moment.

OleCuss
08-03-2010, 4:21 PM
Gene why not go directly after the part of the law that say it must be unloaded? Since CA has open carry right now, albeit retarded, unloaded open carry, why not just sue for the law's obvious unconstitutionality according to Heller's functional firearm requirement? If we get LOC, then banning UOC would essentially be preempted.

I'm not Gene, but he might not respond for a while.

Personally, I like your logic, but it will likely fail.

AB1934 is far further down the legislative highway than is any conceivable legislation which would convert UOC to LOC. Also, given the current political climate, any conversion to LOC is almost inconceivable in the short term.

Also, the current restrictions on movement placed on UOC would have to be removed and since LOC is not favored you can just begin to imagine just how well a bill would do in the legislature which made LOC legal and also let you LOC in the current school zones?

No, this is just a bridge too far at this time. I'll never really be satisfied until we have LOC and CCW throughout the land - but insistence on the politically impossible will only lead to defeat of what we can achieve.

So we get the CCW and then I am convinced cases are going to present themselves which will force the recognition of the right to LOC as well.

Maestro Pistolero
08-03-2010, 4:23 PM
AB1934 is far further down the legislative highway than is any conceivable legislation which would convert UOC to LOC.No, no, in federal court, not the legislature for God's sake. It may just take getting LOC established in a more . . . efficient venue first. If it were to happen first in, say, DC where the Supreme Court is faster to reach. . . then incorporation extrapolates it to the rest of the country.

ned946
08-03-2010, 4:32 PM
What is the take home message with code today?

Yes, you can purchase a gun.
Yes, you can walk around with it in your home, with your spouse and children or anybody else that happens to be in your residence. Places where there is very little concern of personal protection as compared to being out in public.

Yet, no, you cannot protect yourself out in public using that same instrument that you've legally purchased. Where your exposure is the highest. Where personal protection of most concern.

How in the world can a rational human being explain the logic?

If it's to "protect the public"....what is the family considered? Chopped liver?


If you are able to buy a gun, there is no logic that can follow on why one cannot keep this gun with him...at all times.

wash
08-03-2010, 4:34 PM
The problem is, if we get LOC, what argument do we use to get CCW?

Like I've been saying, I want it all and the way to get it is sue for shall issue CCW and then go after no permit LOC because a permit can't be required to exercise a fundamental civil right.

If we get no permit LOC, how do you sue for CCW?

CCW is the right path and it exempts you from GFSZ's.

No permit LOC with GFSZ restrictions would be a disaster so we need to get rid of that 1,000 foot zone as well. That means a sensitive places lawsuit which means more waiting.

CCW first!

thayne
08-03-2010, 4:47 PM
The problem is, if we get LOC, what argument do we use to get CCW?


The state will hand it over on a silver platter. They would much rather it be hidden away rather than out in the open.

Gray Peterson
08-03-2010, 4:52 PM
The state will hand it over on a silver platter. They would much rather it be hidden away rather than out in the open.

No, they won't.

morfeeis
08-03-2010, 7:09 PM
There's lots of reason the be optimistic, but you live in California so I would not hold my breath waiting!
i dont think it's a matter of hope anymore. i think it's a matter of us doing what we have to in courts and us doing what we can to help those in court...

IEShooter
08-03-2010, 7:37 PM
I hear a lot of the silly defeatism of people who didn't read Heller or McDonald. If you don't have a right to bear/carry loaded arms then why are schools sensitive places? I mean, if you can't bear arms outside of your house then there is no reason to even discuss sensitive places because inside your house is never a sensitive place.

-Gene

Sig worthy quote above. Succinct and easy to understand.

Regarding the right to bear, my concern is with Justice Kennedy. He voted with the block on Heller and McDonald.

Would he stand fast if the issue at hand was the right to Bear Arms, if the obvious outcome was Shall Issue?

While I hope that we'd prevail, I'm not entirely sure about his vote when it comes to this side of the equation.

Regards,

John

hoffmang
08-03-2010, 7:57 PM
Gene why not go directly after the part of the law that say it must be unloaded? Since CA has open carry right now, albeit retarded, unloaded open carry, why not just sue for the law's obvious unconstitutionality according to Heller's functional firearm requirement? If we get LOC, then banning UOC would essentially be preempted.
We are far more likely to get a 9th Circuit to force the issuance of license than to strike 12031. Go read Heller closely and notice that almost all of the regulation that it talks about is regarding carry. In fact, the "dangerous and unusual" quote is about carry, not keep. Plus, AB 1934 passing + Sykes + definition of "concealed" = wildly unintended outcomes for the antis. :43:

Regarding the right to bear, my concern is with Justice Kennedy. He voted with the block on Heller and McDonald.

Would he stand fast if the issue at hand was the right to Bear Arms, if the obvious outcome was Shall Issue?


Justice "Grizzly Bears" Kennedy? I suggest you need to read or listen to oral argument in both Heller and McDonald. I am not worried about Kennedy going along with the policy choices of over 40 states.

-Gene

Maestro Pistolero
08-03-2010, 10:13 PM
We are far more likely to get a 9th Circuit to force the issuance of license than to strike 12031. Go read Heller closely and notice that almost all of the regulation that it talks about is regarding carry. . . :43:
-Gene

Understood. In much the same way that the dicta about bans in sensitive places being
presumptively constitutional indicates that carry (bear) elsewhere is presumptively protected, doesn't the language that indicates concealed carry may be banned or regulated point to loaded open carry being presumptively lawful?

dantodd
08-03-2010, 10:28 PM
Understood. In much the same way that the dicta about bans in sensitive places being
presumptively constitutional indicates that carry (bear) elsewhere is presumptively protected, doesn't the language that indicates concealed carry may be banned or regulated point to loaded open carry being presumptively lawful?

NO, it indicates that CARRY is legal but the states get to regulate the manner. If the state chooses to permit concealed carry they can likely prohibit openly carried because such a prohibition wouldn't infringe on the core of 2A, assuming the process for concealed carry fits a fundamental right. But, if you look at Hale and other decisions that Gene posted there is a lot more ways to conceal a handgun than there are ways to keep it "openly carried."

Scott Connors
08-03-2010, 10:45 PM
Really? Then the legislators, judges, (self)important people, the campaign contributors etc etc, don't have permits. How do you think that'll play?
.

They'll introduce a new category of "reserve deputy." :(

Maestro Pistolero
08-03-2010, 11:02 PM
there is a lot more ways to conceal a handgun than there are ways to keep it "openly carried."Unless you are wearing a Speedo.

According to Heller there is historical support for both lawful open carry and banned concealed carry.

Gray Peterson
08-03-2010, 11:26 PM
They'll introduce a new category of "reserve deputy." :(

Nope. We'll hound them and expose them whenever possible, and can get that injuncted against as well. Can you imagine the ****storm that insue in the Legislature if they openly talk about such things? Our friends in the Legislature will confront them in every way possible to expose them as for what it is, and warn them that whatever passes will never take effect.

N6ATF
08-03-2010, 11:45 PM
What if it's victim disarming (unless bribed) sheriffs, and not the legislature?

Instead of making BS reserve deputies by statute, sheriffs simply say "here's your 'ID', Mr. Penn, show this to my deputies if they find you armed, and they'll suddenly develop specific blindness to your weapons, if they want to keep their jobs."

This type of policy could be filtered down by word of mouth down from the sheriff, to the undersheriffs/brass, to the deputies, and that everyone must never speak of it again. Be damn hard to PRAR or prosecute without multiple deputies willing to testify, since wires/bugging wouldn't turn up anything as long as everyone remembers to STFU. And good luck getting a recall or unseating an incumbent over permanent CCW get out of jail free cards for bribes.

OleCuss
08-04-2010, 6:55 AM
Unless you are wearing a Speedo.
.
.
.

See? This is goes to my point on going first for CCW.

If we get LOC without CCW it will severely suck for me. I live inside a GFSZ and I'd have to go through all kinds of idiocy just to get to work (which may be inside a GFSZ as well).

Also, what if it is chilly outside and I need to put on a coat? Suddenly I may be concealed unless I change my holstering - and I should not have to carry several different holsters. . . LOC without other changes in law won't be worth what it should be in Kalifornia.

But if we get shall-issue CCW or unlicensed CCW - you're going to have real gifts given to make it nearly certain you'll get LOC as well. This is where the classic Speedos and other tight-fitting clothing comes into play. . . Basically, those who want to go play in skimpy clothing are going to find that in the State of California they don't get the same rights as those of us who dress more modestly? I don't think the courts are going to accept the idea that mode of dress should determine your right to carry. At that time I think the courts are going to force LOC in all the locations in which it is legal to CCW.

And I don't think I know where Gene is going with AB1934 + Sykes + plus the definition of "concealed" - but when he is telling us that the antis are conspiring to give us what we want, I believe him.

Shall-issue CCW is the immediate goal and we'll get LOC almost as a result of that.

BillCA
08-04-2010, 7:54 AM
And I don't think I know where Gene is going with AB1934 + Sykes + plus the definition of "concealed" - but when he is telling us that the antis are conspiring to give us what we want, I believe him.
California has effectively eliminated LOC permits in smaller counties according to Gene. That means, in California, the only way to legally carry a gun is either to CCW with a permit or UOC. Now Saldana wants to close the UOC "loophole". So California has effectively said the only permissible manner of carry is concealed carry. Suits against the current descretionary system, showing how it violates the right to carry - which is inexorably linked to "keep" - will result in the courts forcing "shall-issue" changes on the state (e.g. that lawful self-defense is sufficient for good cause and that not being a prohibited person is good moral character). That leaves us the definition of concealed. If you've paid attention to Gene's posts in other threads, California's definition of concealed (i.e. "substantially concealed") will be much more liberal than other states. Though, I would expect the legislature to re-address that issue within a couple of years at the most.

If it came down the the legislature trying to decide whether LOC or CCW would be permissible without a permit, which do you think they'd choose? Regulate CCW and let the plebes carry openly? Or regulate LOC via permits and allow Vermont-style CCW? Given the number of hoplophobes in this state would would protest about their right to "feel safe" from the sight of those scary guns openly exposed, I think the answer is obvious.

OleCuss
08-04-2010, 8:06 AM
California has effectively eliminated LOC permits in smaller counties according to Gene. That means, in California, the only way to legally carry a gun is either to CCW with a permit or UOC. Now Saldana wants to close the UOC "loophole". So California has effectively said the only permissible manner of carry is concealed carry. Suits against the current descretionary system, showing how it violates the right to carry - which is inexorably linked to "keep" - will result in the courts forcing "shall-issue" changes on the state (e.g. that lawful self-defense is sufficient for good cause and that not being a prohibited person is good moral character). That leaves us the definition of concealed. If you've paid attention to Gene's posts in other threads, California's definition of concealed (i.e. "substantially concealed") will be much more liberal than other states. Though, I would expect the legislature to re-address that issue within a couple of years at the most.

If it came down the the legislature trying to decide whether LOC or CCW would be permissible without a permit, which do you think they'd choose? Regulate CCW and let the plebes carry openly? Or regulate LOC via permits and allow Vermont-style CCW? Given the number of hoplophobes in this state would would protest about their right to "feel safe" from the sight of those scary guns openly exposed, I think the answer is obvious.

Understood, thank you, but I've been suspecting Gene has even more in mind than that. Maybe I'm reading more into it than I should. . .

Anyway, I have a sneaking suspicion as to where things are going but I don't claim to really know exactly how badly the antis are screwing themselves over. I am actually beginning to suspect I should consider supporting AB1934. . .

hoffmang
08-04-2010, 8:09 AM
I am actually beginning to suspect I should consider supporting AB1934. . .

I still think we should try to defeat AB-1934. However, if it does pass - well... it'll be funny.

-Gene

OleCuss
08-04-2010, 8:34 AM
I still think we should try to defeat AB-1934. However, if it does pass - well... it'll be funny.

-Gene

I think I need to spend more time looking at AB1934. I have a little bit of an idea as to where you might be going but my level of sophistication on this is nowhere near yours.

In any case, I'm looking forward to hearing the punch line - and yes, I can wait for it. After all, most good jokes require good timing for them to work!

Window_Seat
08-04-2010, 9:17 AM
Fixed the above for you. Unloaded firearms aren't the ones that you have a fundamental enumerated right to keep and bear. States are going to get to regulate the time place and manner of carry, but not prohibit it to the otherwise eligible firearms owner. California could allow loaded open carry and have the current CCW laws/implementations found constitutional, but loaded open carry is illegal in all populated areas. Soon unloaded open carry will be illegal too barring an unforeseen change in the path on AB 1934.

I hear a lot of the silly defeatism of people who didn't read Heller or McDonald. If you don't have a right to bear/carry loaded arms then why are schools sensitive places? I mean, if you can't bear arms outside of your house then there is no reason to even discuss sensitive places because inside your house is never a sensitive place.

Logic does actually apply to some parts of law.

-Gene

^^^^^This one, especially in bold^^^^^

And is this where PP 39-40 in the McDonald opinion comes in? You might begin to regard me as the one whose favorite part of that opinion is this:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "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."

Because it doesn't say "school zones", just "such as schools", and it still doesn't seem to me that this would pass constitutional muster in a courtroom challenge?

Erik.

OleCuss
08-04-2010, 9:54 AM
OK, I think I'm pretty sure I understand the how/why of the punchline!

My thanks to Gene for making me look for the answer and to all the others who are making the machinery work to restore our rights.

wildhawker
08-04-2010, 10:09 AM
All, the gut/amend window has not closed. If you have ideas, please keep them to yourself until the end of August.

Loose lips sink ships and all that.

-Brandon

OleCuss
08-04-2010, 10:17 AM
All, the gut/amend window has not closed. If you have ideas, please keep them to yourself until the end of August.

Loose lips sink ships and all that.

-Brandon

No problem with that. That's why I didn't state what I think will happen with the interactions. And I agree that it is still the right thing to do to oppose AB1934 - it's bad law designed to gut our freedoms.

I think that even the end of August will be too soon.

Oh, and I also think that the passage of both AB 1934 and AB 1810 may be in more trouble than is reported. I think a little bit of reality is sinking in up in Sacramento and passage of nitwittery may be getting a bit more difficult. I think especially AB 1810 should be veto bait under the current conditions.

hill billy
08-31-2010, 10:27 PM
"real funny"? What so funny about taking away my right to defend myself. As a woman who has been violently attacked and who has chosen to UOC to defend myself against that happening again, I don't find that funny at all.

I also OC to make a statement concerning 2A rights in this state. AB 1934 prevents me from exercising my 1A right. Funny.

JMO, read a little more about what's going on and you'll understand. Passage of 1934 will force the state to loosen regulations on carrying a gun.