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View Full Version : is the safe gun roster a violation


jeff762
07-02-2011, 3:42 PM
of the federal rico act? to me it appears to interfere with interstate commerce and appears to involve extortion, which is in violation of the hobbs act.

discuss

choprzrul
07-02-2011, 3:48 PM
Violating? Probably.

But who is going to take them to court for it?

.

taguin
07-02-2011, 4:03 PM
There was a lawsuit. Don't know what happened to it. I doubt anything will come of it. Too many liberals running this state!

hoffmang
07-02-2011, 4:17 PM
Almost any legal theory that begins with RICO is considered crackpot. Just a friendly warning.

-Gene

darkwater
07-02-2011, 4:18 PM
The lawsuit is Pena v. Cid: http://wiki.calgunsfoundation.org/index.php/Pena_v._Cid, which had been stayed pending McDonald and Nordyke, but now the stay has been lifted and it should be moving along shortly...

curtisfong
07-03-2011, 1:03 AM
Almost any legal theory that begins with RICO is considered crackpot. Just a friendly warning.

-Gene

Except if it is the Justice Dept that uses RICO to go after people? Then it's JUST PEACHY. Ridiculous that people put up with this sort of double standard. Especially in this context (namely, the commerce clause).

hoffmang
07-03-2011, 10:19 AM
Except if it is the Justice Dept that uses RICO to go after people? Then it's JUST PEACHY. Ridiculous that people put up with this sort of double standard. Especially in this context (namely, the commerce clause).

The real distinction is between criminal and civil. Criminal RICO was what the statute was designed for. Civil RICO was added on to make it "easier" for the US, but that leaves it in the hands of everyone. It's silly in both contexts civilly.

-Gene

chris
07-03-2011, 11:23 AM
guys don't worry CGF has plans for this state. and this state is not gonna like it at all.

r3dn3ck
07-03-2011, 12:17 PM
I can't see RICO as there's no real extortion or influence peddling. However I can see a clear Constitutional violation.

1. Only the Congress (specifically the HoR and Senate) has the power to regulate interstate commerce.
2. All power not granted to the federal government is reserved to the states. So any power given to the Federal Govt is not granted to the states as there is a potential for direct conflict (see current drug laws for an idea of how awesome that is when it happens).
3. Gibbons v. Ogden demonstrates that the states may not affect interstate commerce and that applies even when the question revolves around activities solely taking place within a given state (CA can't say that only CA gun companies can sell guns in CA). This seems to directly bear on this case.
4. Gibbons v. Ogden would also seem to suggest that if any legal firearm were to be manufactured in CA, even if not legal for sale there, must be allowed to be manufactured there if it has sales markets outside CA and within the boundaries of another state (this part of the Roster gun law is in DIRECT conflict with The Gibbons decision as I read it).

Without delving much further into case law, suffice it to say that multiple times SCOTUS has decided in favor of freedom to produce and market goods across state lines. By legislating that an item legal for sale in any of the states is not legal to manufacture in any particular state they're inhibiting the freedom to pursue happiness.

As an aside, I see a much clearer error in the roster law. It says "12125. (a) Commencing January 1, 2001, any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year. " well that's all well and good except for order of operations. If you manufacture any single firearm in this state, say a prototype and it's not on the roster already then you are in violation because only guns on the roster are considered not-unsafe according to the text of the law. As soon as you submit the first units off the line to roster testing and they fail, you've been made a criminal. The testing or required design specifications would have to be in place BEFORE the thing was even prototyped which is impossible unless you've gotten a different answer than me to the questions: Can you go back in time? Is there any reason one thing follows another? Is there any way of stopping it.

So, I'd guess that all we'd need to do is design a gun in CAD and then sue the state to either repeal or modify the law (which they couldn't do because the very principle which surrounds the law is illegal to any reading of the commerce clause) to be constitutional so that the item could be manufactured within the state and made available to any other state. Any type 07 FFL's wanna play?

Librarian
07-03-2011, 1:08 PM
I'll be contrarian here, and suggest that, aside from good sense, the Roster doesn't violate anything.

Federal laws already require interstate transfers to go through FFLs in the state of residence of the buyers.

California generally requires California residents to use CA-licensed FFLs to perform firearms transfers.

Where CA-licensed FFLs are not principals, but agents (PPT), the transfer is exempt from the Roster.

It is CA-licensed FFLs as principals who are regulated by the Roster. CA is entirely free to impose regulations on its licensees on conduct inside California.

That does not mean that the Roster makes sense, in any meaningful gun-safety way.

Cokebottle
07-03-2011, 1:10 PM
Violating? Probably.

But who is going to take them to court for it?

.
:gura:

microwaveguy
07-03-2011, 2:12 PM
The battle for eliminating the bizarre CA gun laws are the same as keeping an airplane flying ........... LOTS of money.

I just hope it happens in the next decade. Since we didn't reach this state of events overnight it will take time to undo the Gordian knot. :smash:

jeff762
07-03-2011, 7:40 PM
I'll be contrarian here, and suggest that, aside from good sense, the Roster doesn't violate anything.

Federal laws already require interstate transfers to go through FFLs in the state of residence of the buyers.

California generally requires California residents to use CA-licensed FFLs to perform firearms transfers.

Where CA-licensed FFLs are not principals, but agents (PPT), the transfer is exempt from the Roster.

It is CA-licensed FFLs as principals who are regulated by the Roster. CA is entirely free to impose regulations on its licensees on conduct inside California.

That does not mean that the Roster makes sense, in any meaningful gun-safety way.


librarian, i think you kinda missed the angle i was shooting for. it is how the handgun gets on the roster which is the manufacture pays the state money to test said handgun, if the manufacture even changes the color, they have to pay again to have it tested even though it functions exactally the same as a previously tested one of a different color. if i'm off target let me know.

wash
07-03-2011, 8:11 PM
It's a lot simpler than that, the roster of "not un-safe" handguns bans certain constitutionally protected firearms.

The Peņa case will eventually fix that.

Librarian
07-03-2011, 9:02 PM
librarian, i think you kinda missed the angle i was shooting for. it is how the handgun gets on the roster which is the manufacture pays the state money to test said handgun, if the manufacture even changes the color, they have to pay again to have it tested even though it functions exactally the same as a previously tested one of a different color. if i'm off target let me know.

Read Pena (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.1.0.pdf) yet?

Stipulated: the Roster has no benefit wrt safety; the Roster is intended to make handgun acquisition more difficult, in an effort to reduce the number of handgun owners.

Further stipulated: as Pena argues, the buyer exceptions probably create a 4th Amendment equal protection problem.

Getting on the Roster doesn't work exactly as you write - see the wiki article -- http://wiki.calgunsfoundation.org/index.php/The_Safe_Handgun_List

I am by no means suggesting the Roster adds any value or should continue to exist.

I am observing that it seems to me, the penalties for action fall on the CA-licensed FFLs, and CA can reasonably create regulations for its licensees. That may be over-simplified.

jamesob
07-03-2011, 10:31 PM
if gun rights was anything like gay marriage, then we would be alright.

hoffmang
07-03-2011, 10:36 PM
if gun rights was anything like gay marriage, then we would be alright.

Sadly no. Gay marriage is at like 6 or less states. Right to carry is at 41 and "prohibits carry" is in 2 states.

-Gene