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View Full Version : Why wasn't the CA Assault Weapon Ban Challenged in Court Earlier?


mikestesting
03-25-2013, 8:30 AM
I've been reading about NY's SAFE Act and how there are immediate challenges to the various main provisions on the law, including 1 suit that the NRA has jumped in on.

Why wasn't the CA law so vigorously challenged when it was passed? Why did we wait over 10 years for Richards v. Harris? And this suit only challenges the law due to vagueness. Seriously? I would think the longer a law sits on the books, the more it becomes accepted and the harder it becomes to overturn it.

Sometimes I wonder if the Fed Assault Weapons ban of '94 and other various CA laws such as Roberti-Roos would have had a harder time passing if they were introduced in the Internet age.

Rusty_Rebar
03-25-2013, 8:42 AM
Because there was no McDonald decision, so the 2nd Amendment did not apply to California until 2010.

mikestesting
03-25-2013, 8:44 AM
Because there was no McDonald decision, so the 2nd Amendment did not apply to California until 2010.

There was no McDonald when McDonald was first filed.

Untamed1972
03-25-2013, 8:52 AM
There was no McDonald when McDonald was first filed.

securing civil rights is a chess game and kinda like building a pyramid. each block building on the next. Going after AW bans as an opening salvo would have been too big a fish to try and fry all at once.

alfred1222
03-25-2013, 8:53 AM
There was no McDonald when McDonald was first filed.

True, but he had a strong case and a good court. Getting truly free 2A rights is like building a pyramid, you have to start with a strong foundation (Heller and McDonald), and than build on that, expanding and strengthening the structure as you go. You can't put the top on a pyramid without building all the layers first

OleCuss
03-25-2013, 8:54 AM
It takes strategy.

There was a reason why Heller was filed when and where.

There was a somewhat similar reason why McDonald was filed when and where.

And it would have been a huge mistake to challenge the PDW ban prior to McDonald.

Even after McDonald you have to wait for the right client and go strategic. The cases here are typically coordinated with cases filed elsewhere in order to maximize the probability of things like circuit splits and an eventual favorable SCOTUS ruling.

I don't know much of what is going on in the background, but there are connections and information passing back and forth which I think might surprise most of us.

Rusty_Rebar
03-25-2013, 8:54 AM
But there was a Heller (2008) which was when the right was proclaimed by the supreme court as an individual right not associated with militia services.

Once that case was decided, they brought McDonald to the supreme court to see if the case applied to all states via the 14th Amendment.

Before McDonald you could not use 2A as a reason to bring a case, as it did not apply to the states.

At this point, what we have is a right to keep a firearm in the home. There are other cases either awaiting SCOTUS to accept, or in various Circuit courts that are attempting to flesh out the boundaries and limits of the 2A.

soopafly
03-25-2013, 8:57 AM
There was no McDonald when McDonald was first filed.

This doesn't make any sense. Neither Heller nor McDonald was a challenge to ANY "assault weapon" ban.

Nick Justice
03-25-2013, 8:57 AM
Because there was no McDonald decision, so the 2nd Amendment did not apply to California until 2010.

Up until that time, the states could do whatever they wanted, and CA did (It still does).

No one seriously challenged the Federal ban because the NRA backed off its opposition after the sunset provision was added.

You are correct in that the longer a law is on the books, the more likely it is to be accepted. But, slavery was on the books for hundreds, if not thousands, of years. The Jim Crow laws, the other civil rights violations took awhile to overcome, and we are not done with them yet. It was 149 years after the founding before freedom of speech was applied to the states (Gitlow v. New York, 1925).

IVC
03-25-2013, 9:06 AM
This doesn't make any sense. Neither Heller nor McDonald was a challenge to ANY "assault weapon" ban.

What he is saying is that Heller/McDonald were precedent setting, so why not try with AWB in vacuum and have it be precedent setting.

Clearly doesn't work that way as others have pointed out.

M. D. Van Norman
03-25-2013, 9:06 AM
Silveira v. Lockyer (http://scholar.google.com/scholar_case?case=13948185712203065755). History.

mikestesting
03-25-2013, 9:10 AM
This doesn't make any sense. Neither Heller nor McDonald was a challenge to ANY "assault weapon" ban.

Then why was it brought it? If it wasn't relevant to an Assault Weapon ban, why did the poster mention it? Your logic is skewed.

The poster mentioned McDonald because it incorporated the 2A to the states through the 14A. I stated what I did because if it wasn't incorporated, why bother to bring McDonald to a suit (which was seeking incorporation of the 2A to Chicago)? Which follows my logic, which goes like this: just because there isn't precedence doesn't mean we can't set precedence. Which is EXACTLY why I said "There was no McDonald when McDonald was first filed."

You have no logic.

After explanation from the other forum members, I understand now. Thank you everyone else.

ptoguy2002
03-25-2013, 9:11 AM
It was....
FRESNO RIFLE AND PISTOL CLUB, INC. v. VAN DE KAMP
Silveira v. Lockyer

See here...http://wiki.calgunsfoundation.org/index.php/History_of_%27Assault_Weapon%27_laws#Legal_Challen ges

I would hope that Heller and McDonald has changed these though.
Patiently waiting.....patiently waiting......patiently waiting.....

zhyla
03-25-2013, 9:14 AM
What he is saying is that Heller/McDonald were precedent setting, so why not try with AWB in vacuum and have it be precedent setting.

More specifically, D.C. v. Heller was a far more compelling case than any AWB case could be. D.C. had banned ALL citizens from owning ANY handgun. That makes our swiss cheese CA laws look fairly liberal by comparison. If CA were to ban all rifles we would have gotten that struck down by now.

Librarian
03-25-2013, 10:04 AM
It was....
FRESNO RIFLE AND PISTOL CLUB, INC. v. VAN DE KAMP
Silveira v. Lockyer

See here...http://wiki.calgunsfoundation.org/index.php/History_of_%27Assault_Weapon%27_laws#Legal_Challen ges

I would hope that Heller and McDonald has changed these though.
Patiently waiting.....patiently waiting......patiently waiting.....

This was the problem exposed - 9th Circuit said that since the 2nd applies only to the Federal government and allowed states to create a militia, 'us folks' do not have the standing to bring suit.

Heller disconnected guns from militia. McDonald said 2nd applies to states and lower jurisdictions.

bruss01
03-25-2013, 10:29 AM
Right on Librarian.

So to the OP, does this answer your question?

An AWB suit could not be pushed forward based on a 2A claim, because courts had ruled that the 2A did not restrict states. HOWEVER, the Heller case gave us the first solid 2A ruling EVER, and McDonald applied those federal restrictions to the states. Why didn't this happen sooner? A combination of things... gun owners nationwide not feeling very threatened, a somewhat passive NRA, dodgy makeup of the Supreme court... it had to wait for a perfect storm to come together with the clouds seeded by Bob Levy of the Cato institute who got the Heller lawsuit under way. Bob Levy has very good legal knowledge and connections, influence, and above all - MONEY. It's kind of like playing roulette and betting on black every time. If you don't have deep pockets, a few losses can bust you down to zero pretty fast. If you DO have deep pockets, you just double your bet every turn of the wheel. No matter how many times you lose, you will eventually WIN and cancel out your previous losses. Unless you get UNLUCKY and hit 0 or 00. Then you're just SOL. This strategy of win-big/lose-big is likely what kept the NRA from wanting to bet the farm on taking a gamble of getting a solid 2A ruling from the Supreme Court. Why gamble it all, when most of the country has a pretty decent 2A right? You'd only help a few states where 2A is disregarded (if you win), and potentially (if you lose) hurt tens of millions of gun owners with a bad ruling. Bob Levy (and Alan Gura) had the money, smarts, and stones to think they could pull it off. It was a gamble. But they won and it has paid off big and opened the door to a whole slew of challenges.

Now, these follow-up challenges cannot be slapped together slopily and have a snowballs chance of making it through the court system, especially when there is so much hostility toward the 2A by judges and so much resistance to re-writing previous decisions based on new rulings. It causes a lot of havoc in the legal systems from the law offices, to the judges chambers and right down to the textbooks in law schools. Big changes are hard won, and what we are fighting for are BIG CHANGES. We have to be loaded for bear, and we have to know our stuff inside-out, upside down, and sideways to be able to push it all the way. You can't just wander into a courtroom, spit tabaccy juice on the floor and grunt "2A Y'all... s'wut I'm talkin' bout..." and expect it to mean anything in terms of you personally or setting solid legal precedent. You have to prove your point in terms that courts will acknowledge. Some times these cases hinge on a single statement of fact... a point made... maybe even a document filed or even grammar & punctuation. You flub up, you just wasted months of preparation and set the case back by years. It HAS TO BE RIGHT. And these cases have to come together in a logical sequence. You don't start nailing on shingles before the foundation is poured and has a chance to set. You build a building from the ground up... and that's the way we have to rebuild our 2A rights. Get in a rush... we risk losing the benefit of everything that we have built up so far.

Moonshine
03-25-2013, 10:33 AM
Sorry for the bad pun, but CA's AW ban has this far proved bullet proof. It has been challenged and even taken as far as the SCOTUS where the case was not taken up. Holes have been poked from time to time but because of its solid history it is the source from which evil flows; note how it is now spreading even as we speak.

soopafly
03-25-2013, 10:37 AM
What he is saying is that Heller/McDonald were precedent setting, so why not try with AWB in vacuum and have it be precedent setting.

Clearly doesn't work that way as others have pointed out.

ah, gotcha...that's what i get for skimming through too fast on a screen too small...:o

nicki
03-25-2013, 1:54 PM
I believe the state AW ban was challenged and it went all the way up to the California Supreme court, I believe it was the "Harrod case".

The core of the California State Supreme court ruling was that we had no constitutional right to keep and bear arms, this ruling was pre-Heller.

The Attorney, Don Kilmer did draft a "right to keep and bear arms" proposition, but it didn't go anywhere for lack of funds and boots on the ground.

The game has changed and the game changer for us is the "MacDonald case" since we now finally can use the "Federal courts".

Many judges in the lower courts are hostile to both "Heller and MacDonald", so it will take probably 5 to 10 years of favorable Supreme court rulings to fix things across the board.

On the bright side, Judges who are making anti gun rulings may be impeding their future careers if they think they were planning on moving further up the court system.

If Republicans were smart, they would drop using "Roe vs Wade" as a litmus test and use "gun rights instead" to shoot down judicial nominations.

Nicki

bridgeport
03-25-2013, 2:07 PM
http://law.justia.com/cases/california/cal4th/25/1138.html

Harrot V Kings Co.

Tincon
03-26-2013, 2:26 AM
It takes strategy.

There was a reason why Heller was filed when and where.


Really, and what would that be?

Virginian
03-26-2013, 7:50 AM
After MacDonald applied the 2nd to the States it doesn't really sound all that difficult to provide "evidence tending to show that possession or use of an AR15 (and more accurately an M4), and the military issue magazines it uses, at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia. In fact, that criteria covers a multitude of items.

Is there any reason at all that criteria from Miller isn't used?
More to the point, I would think the likelihood of that argument prevailing would give people like Yee a compelling reason to sit down and STFU.

donw
03-26-2013, 8:07 AM
I've been reading about NY's SAFE Act and how there are immediate challenges to the various main provisions on the law, including 1 suit that the NRA has jumped in on.

Why wasn't the CA law so vigorously challenged when it was passed? Why did we wait over 10 years for Richards v. Harris? And this suit only challenges the law due to vagueness. Seriously? I would think the longer a law sits on the books, the more it becomes accepted and the harder it becomes to overturn it.

Sometimes I wonder if the Fed Assault Weapons ban of '94 and other various CA laws such as Roberti-Roos would have had a harder time passing if they were introduced in the Internet age.

i would opine that today's MSR is much more 'popular' than the "assault weapon" of that day...it was the ending of the mausers, enfields, Springfield and M1 carbines era...the dawning of the "Pistol grip" and thumbhole stocked, semi-auto's...

as an example...in today's world, soldiers seldom ever see a bolt action rifle in action..mostly now, the AK and it relatives...the days of the original AWB was that world that was transitioning from the M14, M60, BAR, Thompson SMG, M1 Garand, M1 carbine to the M16/M4, SAW249 etc.

the same reaction that was seen during the transition from muzzle-loaders to BA and lever actions

RomanDad
03-26-2013, 8:15 AM
It was....
FRESNO RIFLE AND PISTOL CLUB, INC. v. VAN DE KAMP
Silveira v. Lockyer

See here...http://wiki.calgunsfoundation.org/index.php/History_of_%27Assault_Weapon%27_laws#Legal_Challen ges

I would hope that Heller and McDonald has changed these though.
Patiently waiting.....patiently waiting......patiently waiting.....

Ding Ding Ding... We have a winner....

The answer is "The law WAS challenged.... And that challenge FAILED because there was no HELLER AND MCDONALD decisions to contradict the reasoning of the court in Fresno R&P."

One of the rulings in Fresno was that INDIVIDUALS have no right to own guns, and the 2nd amendment ONLY binds the FEDERAL GOVERNMENT (and thus states can do whatever they want with regard to guns, including ban or confiscation).

Heller ruled that the 2nd Amendment is an INDIVIDUAL RIGHT, reserved for CITIZENS- Meaning the Federal Government (DC) couldn't infringe on the right of INDIVIDUALS to own handguns.

McDonald said that that right was INCORPORATED by the 14th amendment to apply to the STATE GOVERNMENTS as well as the Federal governments, KILLING an entire major reason that the Fresno R&P challenge was DENIED.

That opens the door to challenge the AW ban on 2nd amendment grounds, a door that was shut by Fresno R&P for over 20 years.

RomanDad
03-26-2013, 8:22 AM
Really, and what would that be?

Heller was filed in DC (the most stringent FEDERAL gun BAN) after the Ashcroft Justice Department switched its official position (after about 40 Years) that the 2nd amendment conferred an "Individual right" as opposed to a "collective right" which can only be exercised by the state governments.

If you can't knock down the DC ban, going after lesser bans is pointless, because they will certainly stand.

M. D. Van Norman
03-26-2013, 8:41 AM
Bingo!

Tincon
03-26-2013, 11:14 AM
Heller was filed in DC (the most stringent FEDERAL gun BAN) after the Ashcroft Justice Department switched its official position (after about 40 Years) that the 2nd amendment conferred an "Individual right" as opposed to a "collective right" which can only be exercised by the state governments.


Interesting and at least plausible, where did you hear that?

RomanDad
03-26-2013, 11:40 AM
Interesting and at least plausible, where did you hear that?

Just how I understand the history of it...

The case itself was instigated not by the plaintiffs themselves, but by a former law professor (Georgetown maybe?) who was associated with one of the conservative D.C think tanks basically as an educational exercise in the bounds of the 2nd amendment.

DC is (was) the low hanging fruit of gun control, but despite that was never challenged over its 40 year history... The timing was simply as good as it would get. But there was a LOT of resistance by pro gun groups who feared a bad ruling setting precedent for the rest of the country, most of whom enjoy few gun regulations. That's always the risk of constitutional litigation, and why the "lets not make things worse" mentality has a lot of support for it.

Tincon
03-26-2013, 1:21 PM
Just how I understand the history of it...

The case itself was instigated not by the plaintiffs themselves, but by a former law professor (Georgetown maybe?) who was associated with one of the conservative D.C think tanks basically as an educational exercise in the bounds of the 2nd amendment.

DC is (was) the low hanging fruit of gun control, but despite that was never challenged over its 40 year history... The timing was simply as good as it would get. But there was a LOT of resistance by pro gun groups who feared a bad ruling setting precedent for the rest of the country, most of whom enjoy few gun regulations. That's always the risk of constitutional litigation, and why the "lets not make things worse" mentality has a lot of support for it.

That is accurate, expect the timing WAS NOT "as good as it could get." The resistance by progun groups on filing was because the make-up of the Supreme Court at the time of filling was not favorable to a positive outcome for the 2A. Lucky for them, and us, the make-up changed before the case was heard. If it had not, we likely would have lost 2A forever.

I personally also have an issue with the low-rent counsel the group hired, especially now that the same counsel has become a "rock star" and is involved with so much 2A litigation.

M. D. Van Norman
03-26-2013, 3:07 PM
May need some popcorn here … :lurk5:

RomanDad
03-26-2013, 3:20 PM
That is accurate, expect the timing WAS NOT "as good as it could get." The resistance by progun groups on filing was because the make-up of the Supreme Court at the time of filling was not favorable to a positive outcome for the 2A. Lucky for them, and us, the make-up changed before the case was heard. If it had not, we likely would have lost 2A forever.



The rumors in 2001 were that THREE Justices had talked about resigning during Bush's first term. As it turned out of course, NONE did, and he only replaced two in his second term. The one who was the odds on favorite to step down, is still on the Court. Counting Justices six years down the road is a difficult proposition... As Gretzky said- you skate where the puck is going to be, not where it is. Outguessing the Court is always risky, but you pay your money and you take your chances... Or you risk nothing and gain nothing.



I personally also have an issue with the low-rent counsel the group hired, especially now that the same counsel has become a "rock star" and is involved with so much 2A litigation.

Its hard to argue with success.

Lan
03-26-2013, 5:22 PM
Thank you for the synopsis RomanDad!


Sent from my iPhone using Tapatalk

M. D. Van Norman
03-26-2013, 8:28 PM
It [is] hard to argue with success.

Perfect was certainly the enemy of good in this example. We’re still a long way from perfect … but pretty close to good enough. ;):popcorn:

Of course, “good enough” will be a big improvement in this state. :kest:

kcbrown
03-26-2013, 8:52 PM
On the bright side, Judges who are making anti gun rulings may be impeding their future careers if they think they were planning on moving further up the court system.


This is almost certainly incorrect. They will be doing no such thing.

Their future prospects are entirely in the hands of the elected politicians, and those politicians will continue to become more Democrat over time as the demographics of the country change and as the Republican party continues to self-destruct.

So if anything, judges making anti-gun rulings will be improving their future careers.

kcbrown
03-26-2013, 8:53 PM
I personally also have an issue with the low-rent counsel the group hired, especially now that the same counsel has become a "rock star" and is involved with so much 2A litigation.

And your superior alternative counsel is ... ?

Gunlawyer
03-26-2013, 11:01 PM
Silveira v. Lockyer (http://scholar.google.com/scholar_case?case=13948185712203065755). History.

This case was and is 100% inopposite to the findings in Heller which are now law. A challenge to the CA AWB will likely be made after a few more favorable 2a rulings thus deleting the CA AWB law from the books in due time. Id say about 5 years time and its gone forever.

Ninety
03-26-2013, 11:11 PM
This should get interesting..








:gura:

SWalt
03-26-2013, 11:39 PM
Right on Librarian.

So to the OP, does this answer your question?

An AWB suit could not be pushed forward based on a 2A claim, because courts had ruled that the 2A did not restrict states. HOWEVER, the Heller case gave us the first solid 2A ruling EVER, and McDonald applied those federal restrictions to the states. Why didn't this happen sooner? A combination of things... gun owners nationwide not feeling very threatened, a somewhat passive NRA, dodgy makeup of the Supreme court... it had to wait for a perfect storm to come together with the clouds seeded by Bob Levy of the Cato institute who got the Heller lawsuit under way. Bob Levy has very good legal knowledge and connections, influence, and above all - MONEY. It's kind of like playing roulette and betting on black every time. If you don't have deep pockets, a few losses can bust you down to zero pretty fast. If you DO have deep pockets, you just double your bet every turn of the wheel. No matter how many times you lose, you will eventually WIN and cancel out your previous losses. Unless you get UNLUCKY and hit 0 or 00. Then you're just SOL. This strategy of win-big/lose-big is likely what kept the NRA from wanting to bet the farm on taking a gamble of getting a solid 2A ruling from the Supreme Court. Why gamble it all, when most of the country has a pretty decent 2A right? You'd only help a few states where 2A is disregarded (if you win), and potentially (if you lose) hurt tens of millions of gun owners with a bad ruling. Bob Levy (and Alan Gura) had the money, smarts, and stones to think they could pull it off. It was a gamble. But they won and it has paid off big and opened the door to a whole slew of challenges.

Now, these follow-up challenges cannot be slapped together slopily and have a snowballs chance of making it through the court system, especially when there is so much hostility toward the 2A by judges and so much resistance to re-writing previous decisions based on new rulings. It causes a lot of havoc in the legal systems from the law offices, to the judges chambers and right down to the textbooks in law schools. Big changes are hard won, and what we are fighting for are BIG CHANGES. We have to be loaded for bear, and we have to know our stuff inside-out, upside down, and sideways to be able to push it all the way. You can't just wander into a courtroom, spit tabaccy juice on the floor and grunt "2A Y'all... s'wut I'm talkin' bout..." and expect it to mean anything in terms of you personally or setting solid legal precedent. You have to prove your point in terms that courts will acknowledge. Some times these cases hinge on a single statement of fact... a point made... maybe even a document filed or even grammar & punctuation. You flub up, you just wasted months of preparation and set the case back by years. It HAS TO BE RIGHT. And these cases have to come together in a logical sequence. You don't start nailing on shingles before the foundation is poured and has a chance to set. You build a building from the ground up... and that's the way we have to rebuild our 2A rights. Get in a rush... we risk losing the benefit of everything that we have built up so far.

This should be required reading to anyone new to 2A rights. Perfect synopsis.

MrTokarev
03-27-2013, 1:50 AM
So this explains what happened in the past. But when will the CA AWB be challenged in this post Heller & McDonald world?

KarLorian
03-27-2013, 4:05 AM
Two Weeks! :biggrinjester:


No but for serious, it's already happened. See: http://wiki.calgunsfoundation.org/Richards_v._Harris as mentioned in the OP

MrTokarev
03-27-2013, 6:42 AM
Two Weeks! :biggrinjester:


No but for serious, it's already happened. See: http://wiki.calgunsfoundation.org/Richards_v._Harris as mentioned in the OP

Cool. Thanks for the link.

Tincon
03-27-2013, 7:48 AM
The rumors in 2001 were that THREE Justices had talked about resigning during Bush's first term. As it turned out of course, NONE did, and he only replaced two in his second term. The one who was the odds on favorite to step down, is still on the Court. Counting Justices six years down the road is a difficult proposition... As Gretzky said- you skate where the puck is going to be, not where it is. Outguessing the Court is always risky, but you pay your money and you take your chances... Or you risk nothing and gain nothing.

So the plan was just file the case and hope the stars line up for you? I guess reasonable people could disagree on this, but I think there are times when the make-up of the court is more predictable (stable).

M. D. Van Norman
03-27-2013, 7:58 AM
Sometimes, there are battles to be lost or sacrifices to be made in order to win the war. Though we didn’t suffer a loss in Heller, one might not have been as terrible as you imply. See the dividends paid by our temporary loss during the federal ban on “assault weapons” as an example.

RomanDad
03-27-2013, 8:25 AM
So the plan was just file the case and hope the stars line up for you? I guess reasonable people could disagree on this, but I think there are times when the make-up of the court is more predictable (stable).

The Court is never STABLE.... Its nine people any of whom could drop dead at any given moment, and history has shown the POTUS doing the replacing doesn't get to shape the Court the way we assume he should... Their picks are as much tea leaves and voodoo as when to bring a case before them... And it always boils down to the political question of "who can we get 51 votes for in the Senate?" (or "can we get 5 votes in the Court?")


You seem to be making the argument that Heller shouldn't have been brought at all? Because at best there were no guarantees? Or maybe even that it was destined to lose... But it didn't lose!

I understand that hindsight is 20/20, that its easy to say "Of course it would WIN!"... But yours seems to be legally blind because you're still saying "Its still too risky!" It's like yelling at your wife for spending a dollar on the lottery AFTER the ticket wins the $100 million.


I know you have issues with the players and the egos... I get that. I've been saying the same things for a very long time now...

But arguing that the two cases that have done MORE for the second amendment than anything since it was ratified, were mistakes, or poorly handled, is so bizarre that it seems like it can only be caused by very personal motives... Like sour grapes.

Tincon
03-27-2013, 10:44 AM
But arguing that the two cases that have done MORE for the second amendment than anything since it was ratified, were mistakes, or poorly handled, is so bizarre that it seems like it can only be caused by very personal motives... Like sour grapes.

I'm glad they were filed when they were. I just think it was reckless, and arrogant. I would have waited until after the shift during a republican presidency, but more importantly I would not have made the decision for every person in America without a more collaborative discussion.

On Gura's skill, it seems like people have made up their minds, so I'm not going to beat my head against the wall. I have no reason to have "sour grapes". I do think there have been some critical mistakes in his legal arguments and subsequent interpretations of the opinions.

advocatusdiaboli
03-27-2013, 4:39 PM
Because there was no McDonald decision, so the 2nd Amendment did not apply to California until 2010.

Well there is now...so...why not now then?... <crickets>

advocatusdiaboli
03-27-2013, 4:41 PM
The Court is never STABLE.... Its nine people any of whom could drop dead at any given moment, and history has shown the POTUS doing the replacing doesn't get to shape the Court the way we assume he should... Their picks are as much tea leaves and voodoo as when to bring a case before them... And it always boils down to the political question of "who can we get 51 votes for in the Senate?" (or "can we get 5 votes in the Court?")


You seem to be making the argument that Heller shouldn't have been brought at all? Because at best there were no guarantees? Or maybe even that it was destined to lose... But it didn't lose!

I understand that hindsight is 20/20, that its easy to say "Of course it would WIN!"... But yours seems to be legally blind because you're still saying "Its still too risky!" It's like yelling at your wife for spending a dollar on the lottery AFTER the ticket wins the $100 million.


I know you have issues with the players and the egos... I get that. I've been saying the same things for a very long time now...

But arguing that the two cases that have done MORE for the second amendment than anything since it was ratified, were mistakes, or poorly handled, is so bizarre that it seems like it can only be caused by very personal motives... Like sour grapes.

I under stand your reluctance to engage your enemy. How fear bewitches you in a frozen state. But I'll let a great mind speak for me...

Take time to deliberate, but when the time for action comes, stop thinking and go in.
—NAPOLEON BONAPARTE

and since I now what you'll say to that,here it is:
1. Yes he was defeated but only after he conquered most of Europe and he was a brilliant tactician and strategist
2. he invaded Russia and Winter set in—invading Russia in Summer would be no better because long campaigns always cross winter.

So if it's fighting in Winter that has you cowed, you might as well give up, because we are in perpetual Winter in the PRK.

Librarian
03-27-2013, 5:01 PM
Well there is now...so...why not now then?... <crickets>

Because until we get 'in common use' straightened out
- which needs to come AFTER 'yes, we really mean the 2A applies to the states, including YOU, California',
-- which needs to come AFTER 'self-defense outside the home' -
such a case will lose in CA.

Ask some prominent critics of the current litigation path who it is who should run such a case.

Tincon
03-27-2013, 7:15 PM
Because until we get 'in common use' straightened out
- which needs to come AFTER 'yes, we really mean the 2A applies to the states, including YOU, California',
-- which needs to come AFTER 'self-defense outside the home' -
such a case will lose in CA.

Ask some prominent critics of the current litigation path who it is who should run such a case.

No one should run a common use test case because Heller does not give us an common use test. :oji:

Librarian
03-27-2013, 9:00 PM
No one should run a common use test case because Heller does not give us an common use test. :oji:

Maybe.

But unless we do get a 'common use' case (and the CA a/w case could serve, in theory) the argument will be the hysterical 'oh, those are more dangerous than the other guns'.

Tincon
03-27-2013, 9:11 PM
Maybe.

But unless we do get a 'common use' case (and the CA a/w case could serve, in theory) the argument will be the hysterical 'oh, those are more dangerous than the other guns'.

The argument should be lawful use/purpose, which is what Heller and McDonald actually give us.

advocatusdiaboli
03-27-2013, 9:49 PM
Because until we get 'in common use' straightened out
- which needs to come AFTER 'yes, we really mean the 2A applies to the states, including YOU, California',
-- which needs to come AFTER 'self-defense outside the home' -
such a case will lose in CA.

Ask some prominent critics of the current litigation path who it is who should run such a case.

So, in other words, long after we are dead and our children are dead because justice doesn't matter in our system, just the right case for lawyers to plead. Meanwhile, our country and it's people (and their children and grandchildren and grand children's children) live in a miserable rights-deprived state waiting for the bureaucratic courts to decide what their rights really might be based on just the right case that suits some lawyer. If that isn't 1984, then George Orwell's my uncle. What a joke this experiment in freedom and liberty has become. And people DARE question why some of us, frustrated by this nonsense, just leave the state because we see no path to a win ever here. EVER.

Tincon
03-27-2013, 9:52 PM
So, in other words, long after we are dead and our children are dead because justice doesn't matter in our system, just the right case for lawyers to plead. Meanwhile, our country and it's people (and their children and grandchildren and grand children's children) live in a miserable rights-deprived state waiting for the bureaucratic courts to decide what their rights really might be based on just the right case that suits some lawyer. If that isn't 1984, then George Orwell's my uncle. What a joke this experiment in freedom and liberty has become.

Personally, I think the next case SCOTUS hears will give us a test (or rather, flesh out the one already given).

advocatusdiaboli
03-27-2013, 10:03 PM
Personally, I think the next case SCOTUS hears will give us a test (or rather, flesh out the one already given).

Poppycock. They could have done that in Heller or McDonald but they didn't. And they won't this time either. they'll play the game of tiny increments until they all retire and new justices come in. It is a farce I have come to see and will never be the savior so many of you pin your hopes on on. It's not your your great-great-great-grandfather's USA. It's state capitalism. Run amock.

M. D. Van Norman
03-28-2013, 9:19 AM
The argument should be lawful use/purpose, which is what Heller and McDonald actually give us.

In common use by the people for lawful purposes, that is. :)

Tincon
03-28-2013, 10:25 AM
In common use by the people for lawful purposes, that is. :)

That would imply there is some tipping point of propagation after which a type or class of firearm has 2A protection and before which it does not. If the firearm type is new, or has previously been prohibited and thus has few owners, it could be banned and never receive 2A protection as it would never be "in common use".

Not only is this test illogical and bad for gun owners, it is also flat out wrong and not the test given in Heller or McDonald. It is based on a misreading of the Court's treatment of Miller. The opinion in McDonald, the other modern 2A case, does not mention "common use" a single time, yet it mentions "lawful purpose" repeatedly. A firearm need only have have lawful purpose to be protected, and the only firearms not protected are those "not typically possessed by law-abiding citizens for lawful purposes".

advocatusdiaboli
03-28-2013, 11:57 AM
That would imply there is some tipping point of propagation after which a type or class of firearm has 2A protection and before which it does not. If the firearm type is new, or has previously been prohibited and thus has few owners, it could be banned and never receive 2A protection as it would never be "in common use".

Not only is this test illogical and bad for gun owners, it is also flat out wrong and not the test given in Heller or McDonald. It is based on a misreading of the Court's treatment of Miller. The opinion in McDonald, the other modern 2A case, does not mention "common use" a single time, yet it mentions "lawful purpose" repeatedly. A firearm need only have have lawful purpose to be protected, and the only firearms not protected are those "not typically possessed by law-abiding citizens for lawful purposes".

Right on! McDonald and Heller give us lawful purpose and an AR-15 variant can be and is used for the lawful purpose of defense, sport, and hunting—the police use them all the time for defense and they are citizens. Non-Roster guns are the same—LEOs use them lawfully all the time and, to point it out again, they are civilians and the PRK has created a special, superior class of citizen in them regarding firearms rights. And it needs to be reversed.

I am really getting tired of this cr@p. I think we are dithering on a serious challenge to the PRK AWB because we are afraid we will lose and so we just pretend the elephant is not in the room as it grows bigger and more hungry every single CA legislative session. If we don't get some relief soon, the PRK will be past the point of no return to the RKBA rights of most other states.

IVC
03-28-2013, 12:28 PM
Not only is this test illogical and bad for gun owners, it is also flat out wrong and not the test given in Heller or McDonald. It is based on a misreading of the Court's treatment of Miller.

Most of us use "in common use" only as the minimum standard. AWB doesn't pass even that.

IVC
03-28-2013, 12:33 PM
I am really getting tired of this cr@p. I think we are dithering on a serious challenge to the PRK AWB because we are afraid we will lose and so we just pretend the elephant is not in the room as it grows bigger and more hungry every single CA legislative session. If we don't get some relief soon, the PRK will be past the point of no return to the RKBA rights of most other states.

We are about to get a ruling on "bear = carry" and if the Supreme Court grants the cert (likely) and we get a positive ruling (also likely given the level of infractions), then we've accomplished something that is hugely important and much more damaging to the gun control lobby in the long run since it includes normalization of both possessing and carrying of firearms.

While there is a frontal assault on us, we are outflanking the enemy and getting much harder problems solved while they waste their time on much less relevant issues that will be hard to defend in court when the time comes.

M. D. Van Norman
03-28-2013, 1:06 PM
It is based on a misreading …

There has been much misreading by our opponents. I expect that will continue until the matter has faded into irrelevance. :)

Librarian
03-28-2013, 2:03 PM
"...typically possessed by law-abiding citizens for lawful purposes".

Just a nit - are not guns above described 'in common use'?

Mapping the argument back onto the language actually used in Heller makes sense, but I don't think we're talking about different things here.

M. D. Van Norman
03-28-2013, 2:54 PM
Oh, and I forgot my popcorn. :popcorn:

Tincon
03-28-2013, 4:13 PM
Just a nit - are not guns above described 'in common use'?

Mapping the argument back onto the language actually used in Heller makes sense, but I don't think we're talking about different things here.

No. The guns described are used for a lawful purpose. There is a difference, and as I said, common use (besides simply not being the test given) has a number of problems:

That would imply there is some tipping point of propagation after which a type or class of firearm has 2A protection and before which it does not. If the firearm type is new, or has previously been prohibited and thus has few owners, it could be banned and never receive 2A protection as it would never be "in common use".

Sunday
03-28-2013, 7:24 PM
Because there was no McDonald decision, so the 2nd Amendment did not apply to California until 2010.
How bout the rest of the constitution?

five.five-six
03-28-2013, 7:28 PM
This was the problem exposed - 9th Circuit said that since the 2nd applies only to the Federal government and allowed states to create a militia, 'us folks' do not have the standing to bring suit.

Heller disconnected guns from militia. McDonald said 2nd applies to states and lower jurisdictions.

If there was no standing, then how did Harriot get heard?

Librarian
03-28-2013, 7:38 PM
If there was no standing, then how did Harriot get heard?

Dunno. State case rather than Federal - here it is: http://www.hoffmang.com/firearms/Harrot-v-County_of_Kings.pdf Wasn't a 2A challenge.

five.five-six
03-28-2013, 8:04 PM
Dunno. State case rather than Federal - here it is: http://www.hoffmang.com/firearms/Harrot-v-County_of_Kings.pdf Wasn't a 2A challenge.

I think we are all glad that it was heard :) Another instance of the exact right case.

Tincon
03-28-2013, 9:52 PM
If there was no standing, then how did Harriot get heard?

Mr. Harrott was in the unusual position having a weapon he legally owned confiscated by the police and labeled an assault weapon, yet not being criminally charged as he had never possessed the weapon. He had standing as he wanted his rifle and the police refused to give it to him. Also his challenge was that the police (and on appeal, the court) was not following the law itself. He did not challenge the law on 2A grounds.

kcbrown
03-28-2013, 10:11 PM
Just a nit - are not guns above described 'in common use'?


Tincon is interpreting "typically possessed" as meaning "usually possessed" instead of "commonly possessed".

However, that interpretation breaks from the wording of Miller, whilst the "commonly possessed" interpretation does not. Further, Tincon's interpretation would place machine guns squarely in the protected category, therefore making the machine gun ban facially Unconstitutional. That's nice, but the problem with that is that the reason the Supreme Court had to mention this possession test at all is to protect the machine gun ban, else Kennedy would have sided with the opposition.


So Tincon might be right, but the evidence appears to be against him on this.

kcbrown
03-28-2013, 10:22 PM
That would imply there is some tipping point of propagation after which a type or class of firearm has 2A protection and before which it does not. If the firearm type is new, or has previously been prohibited and thus has few owners, it could be banned and never receive 2A protection as it would never be "in common use".


Precisely.



Not only is this test illogical and bad for gun owners,


Your idealism cannot override reality. In the real world, the Supreme Court makes bad and illogical decisions. That this particular part of the ruling has alternative interpretations that work better for us does not, itself, mean that those interpretations are correct.



it is also flat out wrong and not the test given in Heller or McDonald. It is based on a misreading of the Court's treatment of Miller. The opinion in McDonald, the other modern 2A case, does not mention "common use" a single time, yet it mentions "lawful purpose" repeatedly. A firearm need only have have lawful purpose to be protected, and the only firearms not protected are those "not typically possessed by law-abiding citizens for lawful purposes".

Except that this would make the machine gun ban flat-out Unconstitutional, for such firearms are "typically possessed by law-abiding citizens for lawful purposes" if one reads that passage in the way you mean here.

But if that's the case, why word it this way at all? Why not, instead, say "usually possessed by law-abiding citizens for lawful purposes"? I am deeply skeptical that the Supreme Court was anything other than very careful when it chose the term "typically" for use here, when that term has multiple meanings. If it intended the meaning you claim the passage to have, it would have chosen a different and unambiguous term.


Oh, and for the record, I want you to be right about this. But in my experience, when I want something of this nature, the real world finds a way to deny it.

Tincon
03-28-2013, 10:30 PM
Tincon is interpreting "typically possessed" as meaning "usually possessed" instead of "commonly possessed".

However, that interpretation breaks from the wording of Miller, whilst the "commonly possessed" interpretation does not. Further, Tincon's interpretation would place machine guns squarely in the protected category, therefore making the NFA facially Unconstitutional. That's nice, but the problem with that is that the reason the Supreme Court had to mention this possession test at all is to protect the machine gun ban, else Kennedy would have sided with the opposition.


So Tincon might be right, but the evidence appears to be against him on this.

No, it isn't. Nor is the word "typical" an essential part of the test. It is part of some language that is important because it clarifies the Court's interpretation of Miller (dismissing the common-use test), however the actual test is given elsewhere in Heller and clearly talks about a lawful purpose. Logically if the lawful purpose is a stretch and the typical use is criminal, the weapon will probably not be protected, hence this language in one part of the opinion.

Take a look at McDonald, the only Supreme Court case to apply Heller. Why do they say the handgun is protected? Indeed, what does the court in McDonald say its "central holding" in Heller was? Hint: the words "common use" or even "typical use" appear nowhere in the majority opinion.

In any case you are making the best argument for the anti-gun side (in fact Stevens goes in this direction in his dissent in McDonald, in a footnote). I have no doubt the other side will argue it, but they will probably NOT rely it, because it is weak. That is, unless WE rely on it, then we are doing their work for them.

kcbrown
03-28-2013, 10:51 PM
No, it isn't. Nor is the word "typical" an essential part of the test. It is part of some language that is important because it clarifies the Court's interpretation of Miller (dismissing the common-use test)


On what basis do you say they are dismissing the common use test as opposed to the militia duty test?



, however the actual test is given elsewhere in Heller and clearly talks about a lawful purpose. Logically if the lawful purpose is a stretch and the typical use is criminal, the weapon will probably not be protected, hence this language in one part of the opinion.


I agree that "lawful purpose" is part of the test. However, your argument amounts to the statement that it is the only part of the test. That is not clear at all, thanks to the Supreme Court's choice of the ambiguous term "typically".



Take a look at McDonald, the only Supreme Court case to apply Heller. Why do they say the handgun is protected? Indeed, what does the court in McDonald say its "central holding" in Heller was? Hint: the words "common use" or even "typical use" appear nowhere in the majority opinion.


That's a good point. That gives me hope.

Giving me hope is a dangerous thing to do, for it is when I become hopeful that things tend to crash down around my feet. :D



In any case you are making the best argument for the anti-gun side (in fact Stevens goes in this direction in his dissent in McDonald, in a footnote). I have no doubt the other side will argue it, but they will probably NOT rely it, because it is weak. That is, unless WE rely on it, then we are doing their work for them.

I agree, we should not rely on it, nor should we suggest that the test is a "common use" test.

However, I will say this: if a firearm is commonly possessed by law-abiding citizens for lawful purposes, then it most surely passes the test as you interpret it. So raising a case involving a firearm that qualifies under the "common use" test should be a slamdunk per your interpretation.

But then, your interpretation makes the NFA's machine gun prohibition plainly and facially Unconstitutional. Do you really believe Kennedy will side with that?

Tincon
03-28-2013, 11:04 PM
On what basis do you say they are dismissing the common use test as opposed to the militia duty test?


They only mention common use in connection with Miller, then they say they interpret Miller only to mean something else. They dismissed everything else from Miller.

I agree that "lawful purpose" is part of the test. However, your argument amounts to the statement that it is the only part of the test. That is not clear at all, thanks to the Supreme Court's choice of the ambiguous term "typically".


They only use that word in one place, when abrogating Miller. Everywhere else, including McDonald, they talk only about lawful purpose.


However, I will say this: if a firearm is commonly possessed by law-abiding citizens for lawful purposes, then it most surely passes the test as you interpret it. So raising a case involving a firearm that qualifies under the "common use" test should be a slamdunk per your interpretation.


I think we have seen that, with the handgun.


But then, your interpretation makes the NFA's machine gun prohibition plainly and facially Unconstitutional. Do you really believe Kennedy will side with that?

Maybe someday the Court will, with or without him on it. In the mean time, there are other items that have been banned that might not fall under common-use, such as the .50 BMG rifle. I think we could get a vote from him there. The important thing is not to screw up the test now.

kcbrown
03-28-2013, 11:33 PM
Maybe someday the Court will, with or without him on it. In the mean time, there are other items that have been banned that might not fall under common-use, such as the .50 BMG rifle. I think we could get a vote from him there. The important thing is not to screw up the test now.

I think you misunderstand my meaning.

Kennedy's vote was necessary to secure Heller. If Kennedy would side against a challenge to the Constitutionality of the NFA's machine gun ban, then it follows that the test we speak of really is a "common use" test after all, because Miller was a challenge to the NFA and its language had to be preserved in some form in order to swing Kennedy towards support of the 2nd Amendment as a fundamental individual right.


Also, you appear to be ignoring that which Heller directly held:


Held:
...
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.


(emphasis mine)

Furthermore:


Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.


(again, emphasis mine)

Quite clearly, the Supreme Court considers machine guns to be unprotected by the 2nd Amendment. That cannot be accomplished through a "not usually possessed" rule, but can be accomplished through a "not commonly possessed" rule. Therefore, only the latter, and not the former, is consistent with the entirety of the ruling.



Absent the above, your argument would carry more weight. In light of the above, I don't see how we can conclude anything other than that the Supreme Court meant "commonly", and not "usually", when they said "typically".

Tincon
03-29-2013, 12:37 AM
kcbrown, your devil's advocacy is getting tiresome. Maybe you would be more comfortable posting in whatever forum Brady uses.

The syllabus is not part of the Court's opinion, and I have already explained why the treatment of Miller (common-use) is not relevant to the test. The Court has never ruled on machine guns, any speculation on how they might rule is just that. I am not at all sure Kennedy shares our view that machine guns have a lawful purpose (although perhaps he could be persuaded), so no your conclusion does not automatically follow. In any case I am not suggesting an NFA/machine gun challenge at this time, only that the proper test is argued.

kcbrown
03-29-2013, 1:53 AM
kcbrown, you devil's advocacy is getting tiresome. Maybe you would be more comfortable posting in whatever forum Brady uses.


I'm not doing this to give the other side ammunition, I'm doing this to ensure that our side reads the decision correctly, because if we don't then we will lose.



The syllabus is not part of the Court's opinion


You are correct about that (I hadn't read Detroit Timber & Lumber before now). My mistake. So that part of my message should be disregarded.



, and I have already explained why the treatment of Miller (common-use) is not relevant to the test. The Court has never ruled on machine guns, any speculation on how they might rule is just that.


No, it is not mere speculation. It would be if the Supreme Court itself hadn't said what it said about them in the passage I quoted. But it did.

That particular part of the discussion was part of the underpinnings of what the Supreme Court held, and that makes it more than mere dicta. Indeed, it is quite clear that it is precisely because such a conclusion could be reached that the Court held that one must read further in Miller, since immediately after the "startling reading" comment, they say:


We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179.



If the Supreme Court had intended to dispose of Miller altogether, it would have done so quite plainly. Instead, it went to significant lengths to illustrate how and why Miller does not foreclose their conclusions about the 2nd Amendment, and quite clearly cites the "common use" language in Miller in an approving fashion, not a dismissive one. The Supreme Court quite clearly intends to preserve at least some part of Miller as precedent.

But Miller can have no precedential value whatsoever if the test in question is read the way you read it, for the "lawful purposes" language is strictly a Heller construct, nowhere to be found in Miller, and neither is the equivalent of "usually possessed".



I am not at all not sure Kennedy shares our view that machine guns have a lawful purpose (although perhaps he could be persuaded),


My point is that I expect he does not share our view, and that he would not have signed onto Heller if the language therein didn't foreclose machine guns from 2nd Amendment protection.

Between that and the explicit mention of machine guns in the "startling reading" sentence (the Court could easily have mentioned more dangerous bearable weapons there, such as shoulder-mounted rocket launchers, but it instead intentionally chose to mention machine guns and the NFA's restrictions thereof), it should be quite clear that this Supreme Court intends to uphold the NFA's restrictions on machine guns.



so no your conclusion does not automatically follow. In any case I am not suggesting an NFA/machine gun challenge at this time, only that the proper test is argued.

I most certainly agree with you here, in the proper context. More specifically, I agree that we should at least attempt to argue, in a suitable case, that the test in question is what you state it is. However, that should be done in a case in which a loss would be of minimal consequence.

Until that time, while the stakes are higher, we should limit our cases to those involving weapons that are easily argued to be commonly possessed by law-abiding people, for while a weapon which is usually possessed by law-abiding people for lawful purposes might fail a "commonly possessed" test, a weapon which is commonly possessed by law-abiding people for lawful purposes will pass a "usually possessed" test.

grammaton76
03-29-2013, 2:25 AM
Pretty sure I recall around '08 or '09, that there was a case (not sure how high it went) which alleged that the AWB was unconstitutionally vague in part due to the very fuzzy and gray line which separates the design of a flash hider from that of a muzzle brake. That was in fact a challenge to (a part of) the AWB.

I'm pretty sure that they upheld the "we go by what it's sold as" argument for defining the difference between the two.

Tincon
03-29-2013, 4:04 AM
Pretty sure I recall around '08 or '09, that there was a case (not sure how high it went) which alleged that the AWB was unconstitutionally vague in part due to the very fuzzy and gray line which separates the design of a flash hider from that of a muzzle brake. That was in fact a challenge to (a part of) the AWB.

I'm pretty sure that they upheld the "we go by what it's sold as" argument for defining the difference between the two.

If it's the case I'm thinking of it ended in settlement with no appellate ruling.

ETA: The case was Hunt v Brown.

advocatusdiaboli
03-30-2013, 12:29 PM
We are about to get a ruling on "bear = carry" and if the Supreme Court grants the cert (likely) and we get a positive ruling (also likely given the level of infractions), then we've accomplished something that is hugely important and much more damaging to the gun control lobby in the long run since it includes normalization of both possessing and carrying of firearms.

Okay, I grant we seem to slowly, dare I say glacially, settle in on securing our right in small increments from the top down but the opposing forces work bottom up with bigger strokes making faster progress and that means the battle will take place over several decades at least. Sure, we'll get carry maybe—but carry what? (Not even going to talk about the rapidly diminishing where)

Certainly not semi-auto rifles in CA, no bullet buttons, no non-Roster handguns (and the Roster-approved number is shrinking and we are losing the SSE to The Roster). Not much will be left soon—and not just to carry—to even own, sell, buy, or will. Add to that ammunition restrictions and taxation and what you carry will be hard to fill with ammunition.

In short, if you look at it objectively, the glacial pace of the clarification of our right is out-matched by the destruction of it. If SCOTUS will not decide in a bold stroke to clarify the right broadly and deeply and command the states follow it, then show me, in CA at least, how my prognosis not correct and looks to be the sad state of firearms ownership in CA for years if not decades and maybe for this century.

The race doesn't always go to the strong or the swift—but that's the way to bet.
—Daymon Runyon

IVC
03-30-2013, 12:52 PM
In short, if you look at it objectively, the glacial pace of the clarification of our right is out-matched by the destruction of it. If SCOTUS will not decide in a bold stroke to clarify the right broadly and deeply and command the states follow it, then show me, in CA at least, how my prognosis not correct and looks to be the sad state of firearms ownership in CA for years if not decades and maybe for this century.

It's easy not to see the forrest from all the trees.

There is NO ATTACK on handguns ANYWHERE at this time, except through magazine capacity which is more a part of the AWB and we already have NY backpedaling on their limit of 7. Don't thing that they decided to go back to 10 out of goodness of their heart - they didn't; they are very afraid of a negative ruling. That's the practical effect of Heller.

All the current attacks are trying to use only those doors that have remained open, while not being able to do a single thing about the "carry" cases - it's out of legislators' hands. Further, a single ruling on "taxation of a civil right," "cosmetic features ban" and "magazine capacity" is all it takes to get rid of ALL of these ill-conceived bills in ALL the states. And, those are coming.

Should we rejoice? No. Should we despair? No. However, our current strategic position is much stronger than that of our opponents and we are approaching the end-game. Odds are heavily in our favor.

Richard B
03-30-2013, 4:53 PM
More specifically, D.C. v. Heller was a far more compelling case than any AWB case could be. D.C. had banned ALL citizens from owning ANY handgun. That makes our swiss cheese CA laws look fairly liberal by comparison. If CA were to ban all rifles we would have gotten that struck down by now.My son said he wants to join the NRA. Best thing I ever heard him say. I almost teared up. The thing is he's only 7 1/2 months old. LOL is there a age limit to join?



The recent 7th Cir case out of Illinois, Moore v Madigan, see http://saf.org/, was based upon the strict or close scrutiny rule which is applied to laws affecting individual constitutionally protected rights which is a higher bar for government to get across than the previously applied reasonable exercise of police powers test. Not all circuits are in accord on this, although some of the contrary cases were prior to Heller and McDonald. It remains to be seen whether Illinois Attorney General Madigan will attempt to have the case heard by the Supreme Court.

Application of the strict scrutiny standard increases the chances of overturning arbitrary statutes, but most of the cases so far have dealt with a ban of an entire class of weapons (handguns).

It will be interesting to see what statutes are challenged next. For example, the NFA restrictions on rifle & shotgun barrel lengths are entirely arbitrary and inconsistent. Why 18" for shotguns and 16" for rifles? The Sup Ct case dealing with "sawed off shotguns" was poorly argued as virtue anyone with a knowledge of military history or weapons would have known the historic use of "saws off shotguns" by the armed forces and society.

At the present time one has the impression that the objective is to pick so-called low hanging fruit.

Many of the handgun laws today are reenactments of post civil war era "Jim Crow" laws which should have been discarded a very long time ago. Knife laws, though frequently of a somewhat different history, are no better. Arkansas, among others, has dropped their knife laws. There are more than enough laws to deal with individuals who do something wrong with knives, guns and other arms and an assortment of "enhancement" provisos for offenses committed with deadly weapons, whether it be an automobile used in a DWI vehicular manslaughter case or a Bic pen stabbing.

advocatusdiaboli
03-30-2013, 5:42 PM
It's easy not to see the forrest from all the trees.

There is NO ATTACK on handguns ANYWHERE at this time, except through magazine capacity which is more a part of the AWB and we already have NY backpedaling on their limit of 7. Don't thing that they decided to go back to 10 out of goodness of their heart - they didn't; they are very afraid of a negative ruling. That's the practical effect of Heller.

I appreciate the response but I have two retorts:

1. It is a good example of the pathetic state of rights in CA when I hear you consider NY moving back to 10 a victory when most handguns can carry 18-19 yet we are still at 10 in CA. They moved you to a cell with a window and you think you got out of prison.

2. I consider the Roster a grievous infringement as it is and now they are after the SSE—I'd call that an attack on handguns—a significant one this term. And don't worry, they've been focusing on rifles, but they get back to handguns after this.

IVC
03-30-2013, 9:30 PM
1. It is a good example of the pathetic state of rights in CA when I hear you consider NY moving back to 10 a victory when most handguns can carry 18-19 yet we are still at 10 in CA. They moved you to a cell with a window and you think you got out of prison.

The victory is NY retracting, not in the limit itself. It shows that limits in general are ripe for stricking in the near future. Yes we have them, but they were prior to Heller and McDonald.

2. I consider the Roster a grievous infringement as it is and now they are after the SSE—I'd call that an attack on handguns—a significant one this term. And don't worry, they've been focusing on rifles, but they get back to handguns after this.

Roster is indeed a grievous infringement, but it too went into effect in 2001, while Heller was in 2008. We are in the process of challenging it.

The same language in Heller that prohibits bans on firearms in common use is applicable equally to Roster and to AWB. All these cases are pending and all we can do at this time is wait for the legal system to start moving.

Tincon
03-30-2013, 10:06 PM
Roster is indeed a grievous infringement, but it too went into effect in 2001, while Heller was in 2008. We are in the process of challenging it.

The same language in Heller that prohibits bans on firearms in common use is applicable equally to Roster and to AWB.

Really? Please explain how the (completely wrong) "common use" theory results in a challenge to the roster. Is every gun not on the roster in "common use"?

kcbrown
03-30-2013, 10:55 PM
Really? Please explain how the (completely wrong) "common use" theory results in a challenge to the roster. Is every gun not on the roster in "common use"?

No, but there exist firearms that would probably be considered to be commonly possessed by law abiding citizens for lawful uses and which cannot be sold by FFLs in California due to the roster. For instance, the generation 4 Glock series pistols.

Tincon
03-31-2013, 2:13 AM
No, but there exist firearms that would probably be considered to be commonly possessed by law abiding citizens for lawful uses and which cannot be sold by FFLs in California due to the roster. For instance, the generation 4 Glock series pistols.

So your plan is to challenge one gun at a time (and only popular guns)? And how do you plan on establishing standing?

IVC
03-31-2013, 8:04 AM
So your plan is to challenge one gun at a time (and only popular guns)? And how do you plan on establishing standing?

Ivan Pena is challenging only one gun and it happens to be a Gen 4 Glock which has ambidextrous controls unlike its Gen 3 counterpart. Pena is missing the right arm if I am not mistaken so he cannot operate controls on Gen 3. Other plaintiffs are challenging such aspects of Roster where a different finish of the same firearm is not on the Roster, which is very hard to justify as being safety related.

The fine details of "in common use" are not that important in this thread since we are talking about the high level strategy. If you prefer different nomenclature I'd be happy to oblige. The point is that Heller not only clarifies that self defense is a civil right, but it also provides guidance of what cannot be done. The amount of political resistance we are facing from the lower courts dwarfs any detailed analysis of Heller wording.

Tincon
03-31-2013, 8:23 AM
Ivan Pena is challenging only one gun and it happens to be a Gen 4 Glock which has ambidextrous controls unlike its Gen 3 counterpart. Pena is missing the right arm if I am not mistaken so he cannot operate controls on Gen 3. Other plaintiffs are challenging such aspects of Roster where a different finish of the same firearm is not on the Roster, which is very hard to justify as being safety related.

You are confusing plaintiffs Roy Vargas and Ivan Pena (the latter still has both arms, thankfully). Also the gun is the Glock 21SF, which may well not be in "common use", although I gather from the complaint that they are taking a slightly different angle there.

The fine details of "in common use" are not that important in this thread since we are talking about the high level strategy. If you prefer different nomenclature I'd be happy to oblige. The point is that Heller not only clarifies that self defense is a civil right, but it also provides guidance of what cannot be done. The amount of political resistance we are facing from the lower courts dwarfs any detailed analysis of Heller wording.


I would very much prefer it, the test is "lawful purpose". As in, "plaintiff Vargas has has sought to purchase a Glock 21SF for the lawful purpose of self-defense". Eventually this will get back to the Supreme Court, and "common use" arguments will do nothing but help the other side.

IVC
03-31-2013, 8:56 AM
I would very much prefer it, the test is "lawful purpose". As in, "plaintiff Vargas has has sought to purchase a Glock 21SF for the lawful purpose of self-defense". Eventually this will get back to the Supreme Court, and "common use" arguments will do nothing but help the other side.

"Lawful purpose" it is :).

kcbrown
03-31-2013, 12:53 PM
So your plan is to challenge one gun at a time (and only popular guns)? And how do you plan on establishing standing?

Standing means, if I'm not mistaken, that one is materially affected by the law in question. In this case, you'd have to find a plaintiff for whom the firearm in question is by far the best fit for his particular situation. Such a person will probably be disabled, for instance, and have significant limitations in terms of his ability to operate the firearm such that a non-roster firearm would be a necessity, or very nearly so.



I would very much prefer it, the test is "lawful purpose". As in, "plaintiff Vargas has has sought to purchase a Glock 21SF for the lawful purpose of self-defense". Eventually this will get back to the Supreme Court, and "common use" arguments will do nothing but help the other side.


I agree, but we should be careful to ensure, for now, that any arm we bring up is in "common use", because a "lawful use" test will be passed with such a weapon, whilst a "common use" test will not be passed with an uncommon weapon that is for "lawful use".

Did you not yourself argue that it is the duty of counsel to use as many arguments as are available to win the case? Is it not, therefore, his duty to use the "common use" argument as well as the "lawful use" argument?

The roster is not the proper law to challenge for the purpose of divining whether the Supreme Court meant "common use" or "lawful purpose", because the roster forbids weapons that meet both conditions.

Librarian
04-01-2013, 9:26 AM
http://www.buffalonews.com/apps/pbcs.dll/article?AID=/20130330/CITYANDREGION/130339919/1109

Provisions under challenge in the lawsuit include the bill's expansion of the list of weapons covered by the state's assault weapons ban, as well as a section restricting the size of ammunition clips to seven rounds – a provision that Cuomo has expressed willingness to move back to 10.

Halbrook said those provisions conflict with the high court's reading of the Second Amendment in the Heller case, which said that individuals have the right to own guns for self-defense so long as those weapons are “in common use” for such purposes.



I have Halbrook's email, in case someone would like to tell him how wrong he is about the 'common use' argument.

GoldenGateGunner
04-01-2013, 11:48 AM
I don't get it. Does it mean that CA Awb can be struck down by the courts or not? What are the odds?

Tincon
04-01-2013, 2:33 PM
http://www.buffalonews.com/apps/pbcs.dll/article?AID=/20130330/CITYANDREGION/130339919/1109

I have Halbrook's email, in case someone would like to tell him how wrong he is about the 'common use' argument.

I agree with the "common use" argument he is making, although I wish he would choose different wording (as SCOTUS did in McDonald, and as I have suggested). It is distinct from the argument used above. Allow me to clarify:

WRONG: COMMON USE (POSSESSION)
"Weapons are only protected if they are in common (widespread) use." This not only IS NOT the law, it also results in a number of problems for gun owners (see above).

CORRECT: COMMON USE (LAWFUL PURPOSE)
"Weapons are only protected if they are used (most commonly) for a lawful purpose." This not only IS the law, as given by SCOTUS (TWICE), it also eliminates a number of problems for gun owners (see above).

For example, see the McDonald Reply Brief (written by Halbrook).

Obviously, handguns—particularly, as in the case
of Chicago and Oak Park, illegally owned and carried
handguns—are used by some criminals to commit
some crimes. Equally obviously, however, the use of
firearms, including handguns, by law-abiding
citizens for lawful purposes—including not only
hunting and competition shooting but also self-
defense and the deterrence of crime—is far more
common.

This is the correct argument, and I believe it is the one Halbrook is making in the media article.

“What's happening here is the state criminalizing ordinary gun possession by law-abiding citizens,” said Halbrook, and he does not believe the federal courts will abide by that.

Halbrook said those provisions conflict with the high court's reading of the Second Amendment in the Heller case, which said that individuals have the right to own guns for self-defense so long as those weapons are “in common use” for such purposes.

This fits with lawful purpose (although again, I would use different language). Note also that the anti-gun guy they interview is trying to push things the other way (common possession).

I would also like to note that I have not spoken with Halbrook on this subject (so I am reluctant to judge his position), however I have spoken with Gura on it, and he does not understand (or to some extent even recall) the opinion in his own case. I'm sorry if that bursts the Crown Prince Gura bubble for some people, but it's a fact.

kcbrown
04-01-2013, 5:34 PM
I agree with the "common use" argument he is making, although I wish he would choose different wording (as SCOTUS did in McDonald, and as I have suggested). It is distinct from the argument used above. Allow me to clarify:

WRONG: COMMON USE (POSSESSION)
"Weapons are only protected if they are in common (widespread) use." This not only IS NOT the law, it also results in a number of problems for gun owners (see above).

CORRECT: COMMON USE (LAWFUL PURPOSE)
"Weapons are only protected if they are used (most commonly) for a lawful purpose." This not only IS the law, as given by SCOTUS (TWICE), it also eliminates a number of problems for gun owners (see above).


That's what I'd like it to be. But I have serious doubts that this is what SCOTUS actually intends.

How do you square the above with a prohibition against machine guns, particularly when said prohibition was implicitly argued in favor of by SCOTUS in Heller in extremely close proximity to the very statement upon which you base your argument here, such that it is essentially certain that the language you speak of flows directly from their abhorrence of the notion that their decision in Miller could be interpreted as implying that a ban on machine guns is Unconstitutional?