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fizux
08-26-2013, 1:59 PM
Jackson v. SF
Issue: 2A challenge to SF's ammo ban and locked-storage reqts.
Current Status:

Petition for Certiorari Dec 12, 2014 - http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf

As of 3/25/2014 - 9CA Panel (NELSON, SMITH, IKUTA) affirms denial of MPI. If appealed to SCOTUS, the petition for writ of certiorari will be due in 90 days.

3/25/2014 - Prof. Volokh's take (http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/25/ninth-circuit-upholds-requirement-that-guns-be-either-locked-or-carried-on-ones-person/) on the ruling (thanks, Librarian).
3/25/2014 - 9CA Panel Opinion (http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/25/12-17803.pdf) affirms denial of MPI (thanks, Window_Seat).
Note: the latest 28j letters have all been uploaded to RECAP, and will be linked upon update.
3/10/2014 - Appellants' citation of Supp. Auth. (Peruta).
2/19/2014 - Appellees' citation of Supp. Auth. (Ill. Assn. Firearms Retailers v. Chicago, Peruta).
1/17/2014 - Appellants' citation of Supp. Auth. (Ill. Assn. Firearms Retailers v. Chicago).
12/13/2013 - Appellants' citation of Supp. Auth.(re: US. v. Chovan (http://scholar.google.com/scholar_case?case=16080913467870506177)).
11/21/2013 - 28(j) letter (http://ia601704.us.archive.org/6/items/gov.uscourts.ca9.12-17803/gov.uscourts.ca9.12-17803.59.0.pdf) filed by Appellees (re: US. v. Chovan (http://scholar.google.com/scholar_case?case=16080913467870506177)).
10/17/2013 - 28(j) letter (http://michellawyers.com/wp-content/uploads/2013/04/Jackson-v.-San-Francisco_Conformed-Appellants-Citation-of-Supplemental-Authority-Pursuant-to-Rule-28j.pdf) filed by Appellants (re: Passage of related State Statutes).
10/7/2013 - Oral Arguments (Audio (http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334)).
7/30/2013 - Notice of Oral Argument for 10/7/2013, 9:00am, ctrm 3.
5/20/2013 - Reply Brief (http://michellawyers.com/wp-content/uploads/2013/04/Jackson_Conformed-Appellants-Reply-Brief1.pdf)
3/7/2013 - Appellees' Opening Brief (http://michellawyers.com/wp-content/uploads/2013/04/Jackson_Conformed-Appellants-Reply-Brief1.pdf)
2/7/2013 - Appellants' Opening Brief (http://michellawyers.com/wp-content/uploads/2013/04/Jackson_Appellants-Opening-Brief.pdf)
5/15/2009 - Complaint (http://michellawyers.com/wp-content/uploads/2010/12/5.15-Complaint.pdf)


Trial Court: N.D. Cal.
Case No.: 3:09-cv-02143
Docket: http://ia600404.us.archive.org/18/items/gov.uscourts.cand.215014/gov.uscourts.cand.215014.docket.html

Appellate Court: 9CA
Case No.: 12-17803
Docket: http://ia801704.us.archive.org/6/items/gov.uscourts.ca9.12-17803/gov.uscourts.ca9.12-17803.docket.html

Links:
CGF Wiki for this case: http://wiki.calgunsfoundation.org/Jackson_v._San_Francisco
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Litigation_Past_and_Present
Michel & Assoc. Case Tracker: http://michellawyers.com/guncasetracker/jacksonvsanfran/

fizux
11-24-2013, 1:45 PM
SF's 28j letter filed

CMonfort
03-10-2014, 5:57 PM
Earlier today, our office filed a 28(j) letter (http://michellawyers.com/wp-content/uploads/2013/04/Jackson-v.-City-County-of-San-Francisco_Conformed-Appellants-Citation-of-Supplemental-Autority-re-Peruta-v.-County-of-San-Diego.pdf) with the Ninth Circuit addressing the impact of Peruta on this case and responding to the City's arguments raised in its recent letter to the Court (http://michellawyers.com/wp-content/uploads/2013/04/Jackson-v.-County-of-San-Francisco_Appellees-Citation-of-Supplemental-Authorities-re-Illinois-Association-of-Firearm-Retailers-v.-City-of-Chicago.pdf).

fizux
03-25-2014, 11:35 AM
OP updated with 28j letters yesterday, and
9CA opinion this morning (thanks, Window_Seat).

Rossi357
03-25-2014, 11:43 AM
Another rational basis opinion.

Paladin
12-10-2014, 7:09 AM
IIRC, M&A have through Friday to ask SCOTUS for cert....

wolfwood
12-10-2014, 10:23 AM
They kicked this one up to Papa Bear i.e. Paul Clement to draft the writ.

CMonfort
12-10-2014, 11:59 AM
We are finishing up the cert petition and will be filing it on Friday. For strategic reasons that I won't go into on these forums, we have opted to seek review of only the locked storage requirement.

We will be seeking plenary (full) review by the Supreme Court or, in the alternative, summary reversal of the Ninth Circuit's decision.

I will post a link to the brief on Friday.

-Clint

putput
12-11-2014, 11:16 AM
It seems we're about to find out if this Supreme Court has abandoned the 2A after all...

Surely not upholding their own locked storage rulings would be a historical event...


We are finishing up the cert petition and will be filing it on Friday. For strategic reasons that I won't go into on these forums, we have opted to seek review of only the locked storage requirement.

We will be seeking plenary (full) review by the Supreme Court or, in the alternative, summary reversal of the Ninth Circuit's decision.

I will post a link to the brief on Friday.

-Clint

M. D. Van Norman
12-11-2014, 11:45 AM
Especially with a lower court in naked rebellion? :facepalm:

RobertMW
12-11-2014, 2:10 PM
Especially with a lower court in naked rebellion? :facepalm:

This does seem like a very pointed strategic move against rebellious lower courts. Maybe this could pin the ears back in some other circuits if SCOTUS gives a quick summary reversal simply saying "Read Heller you Dolts, it contains more than you admit."

Window_Seat
12-11-2014, 3:31 PM
If they take it, could it be consolidated with a carry outside the home case like Palmer? If so, I could just hear the opinion announcement:

"We are once again, asked to decide what we decided in District of Columbia v. Heller and McDonald v. City of Chicago. For the third and final time, . . . " :D

Especially with a lower court in naked rebellion? :facepalm:

Bad visual. On the other hand, the District Court in Nevada... Nevermind, I'll get into trouble. :eek: :rofl2:

Erik.

Paladin
12-11-2014, 4:54 PM
We are finishing up the cert petition and will be filing it on Friday. For strategic reasons that I won't go into on these forums, we have opted to seek review of only the locked storage requirement.

We will be seeking plenary (full) review by the Supreme Court or, in the alternative, summary reversal of the Ninth Circuit's decision.

I will post a link to the brief on Friday.

-Clint
Thx.

So, it gets filed on Friday, the 12th, the last conference day in Dec. Any rough idea (e.g., month) of when it will be considered in conference?

SCOTUS calendar at:
http://www.supremecourt.gov/default.aspx

RobertMW
12-11-2014, 8:43 PM
Thx.

So, it gets filed on Friday, the 12th, the last conference day in Dec. Any rough idea (e.g., month) of when it will be considered in conference?

SCOTUS calendar at:
http://www.supremecourt.gov/default.aspx

July? All cases go through an extensive vetting process before they go into conference. The court also has to decide to take some 100 ish cases out of like 2000? They have to get to it.

press1280
12-12-2014, 3:38 AM
Sooner than July. 3 months depending on how much SF tries to stall? if everything goes smoothly it may have a shot at being heard and decided by the summer.

CMonfort
12-12-2014, 12:54 PM
The Cert Petition was filed with the Supreme Court today:

http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf

-Clint

Window_Seat
12-12-2014, 1:08 PM
The Cert Petition was filed with the Supreme Court today:

http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf

-Clint

"The Court of Appeals’ conclusion that San Francisco may venture where this Court forbade the District of Columbia to go is so patently wrong that summary reversal would be appropriate. But the reasoning of the decision below is powerful evidence that plenary review is needed."

It doesn't get any more clear, but that's only to page 11. :o

Erik.

lorax3
12-12-2014, 1:13 PM
The Cert Petition was filed with the Supreme Court today:
-Clint

Good luck! Nothing is certain but I have high hopes this will be granted.

The question presented is:
Is San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes any more constitutional than the District of Columbia’s invalidated effort to do the same?

Funtimes
12-12-2014, 1:30 PM
If the court doesn't act on this, then I think I will finally agree with some of the naysayers lol.

Librarian
12-12-2014, 2:20 PM
At 21 But the decision below applied
a watered-down version of scrutiny even after
acknowledging that the San Francisco ordinance
burdens the very “core” of the Second Amendment
right. This case is thus a stark illustration of the
reality that, even after this Court’s admonishment
that the Second Amendment may not “be singled out
for special—and specially unfavorable—treatment,”
McDonald, 561 U.S. at 778-79, courts continue to do
just that. Whether through summary reversal or
plenary review, this Court should use this opportunity
to put an end to this disturbing trend.That would be nice.

press1280
12-12-2014, 3:20 PM
At 21 That would be nice.

And it would be bigger than overturning of this ordinance.

Bhart356
12-12-2014, 3:27 PM
The Cert Petition dedicates vociferously calls out the mischief taking place in the lower courts. The 9CA's upholding of the SF law is a frontal challenge to Heller. It is an almost ideal overreach. Clearly Michel and Associates see a larger strategic objective and possibly a far reaching outcome. A plenary review could result in SCOTUS establishing further direction (and far less discretion) on Second Amendment decisions in the lower courts.

Such an outcome would make this a strategically important case.

Gray Peterson
12-12-2014, 4:23 PM
Clint, Paul, Chuck, all of the rest:

Outstanding work.

thorium
12-12-2014, 4:39 PM
If the court doesn't act on this, then I think I will finally agree with some of the naysayers lol.

Agree.

Seems Michel & his Associates here have crafted a pretty narrow "Heller Litmus Test" in this case

Tactically (Jackson v SF), it seems to be a "softball" to warm up SCOTUS to enforcing Heller. Like the mediocre comic that warms you up before the headliner.

Strategically, it's one of a number of cases that are collectively trying to find the bounds of SCOTUS' collective will to enforce Heller.

If SCOTUS doesn't slap down 9CA over that which seems "exceedingly clear" in Heller - access to an operable handgun in the home - then we'll probably see no real movement on 2A issues until some number of Justices change.

Am I allowed to change my screen name to "ConstitutionallyRelevantCondition" ?

CG of MP
12-12-2014, 4:57 PM
If the Supreme Fish do not chomp at this bait in a frenzy then I think it is safe to assume they are not ever gonna bite and KC et al is right that they are DONE with the 2A for quite a good long time.

If they DO take it then hopefully things like Librarian pointed out will be done and we can get a very positive and tactically useful ruling whereby we can funnel other strategic cases into the system and or have arguments for a plethora of others already in the pipeline.

Of course they could take it and go against us (and their previous words) stare decisis be damned.

Great work Clint etc. It was a damn fun read.

FABIO GETS GOOSED!!!
12-12-2014, 8:35 PM
I can't understand why the petition even argues that "the Court has already answered the question that this case presents." The SC spent all of one paragraph on the trigger lock/disassembly requirement, and the problem with the requirement as decided by the SC was that it applied at all times:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self defense....But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions blah blah blah

The SC was approving this argument from the Heller respondents' brief:

The statutory language is unequivocal: without exception, individuals may never possess a functional firearm at home. If Petitioners had wished to create an exception for home self-defense, they knew how to do so. Section 7-2507.02 permits functional firearms “at [a] place of business, or while being used for lawful recreational purposes.” Petitioners cannot “turn a few passages in the legislative history that are partially contrary to the statutory language into a justification for this court to rewrite the statute,” Chem. Mfrs. Ass’n v. EPA, 673 F.2d 507, 514 (D.C. Cir. 1982), and thereby add a saving exemption for home self-defense.

That was the only argument the respondents made about the trigger lock/disassembly requirement: the requirement was unconstitutional because there was no self-defense exception. The SC didn't go any farther than that and never decided that a trigger lock requirement with a self-defense exception (like SF's) was unconstitutional. Why would you tell the SC it did something that it didn't do? The argument is not credible.

Anyway, if the SC doesn't grant cert, I wouldn't read it as the SC being done with 2A cases but instead that the SC doesn't have a problem with "safe storage" laws with self-defense exceptions.

capoward
12-12-2014, 8:38 PM
Very succient brief, "CA9 says SCOTUS pound sand."

If that doesn't get their attention then KC a Brown is correct, "SCOTUS is both sans intestinal fortitude and integrity." I'm paraphrasing of course - but that's pretty close.)

ddestruel
12-12-2014, 9:06 PM
I can't understand why the petition even argues that "the Court has already answered the question that this case presents." The SC spent all of one paragraph on the trigger lock/disassembly requirement, and the problem with the requirement as decided by the SC was that it applied at all times:



The SC was approving this argument from the Heller respondents' brief:



That was the only argument the respondents made about the trigger lock/disassembly requirement: the requirement was unconstitutional because there was no self-defense exception. The SC didn't go any farther than that and never decided that a trigger lock requirement with a self-defense exception (like SF's) was unconstitutional. Why would you tell the SC it did something that it didn't do? The argument is not credible.

Anyway, if the SC doesn't grant cert, I wouldn't read it as the SC being done with 2A cases but instead that the SC doesn't have a problem with "safe storage" laws with self-defense exceptions.


While at home heller provided for an operable firearm?
from the heller syllabus pg 3

"3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.”

“Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. “

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf





your reading of safe storage I’m a little confused by but it may be my bias or laymen’s reading of things?

in reading this ordinance it appears the city is requiring storage of the arm or locking of the arm while you are at home if you can not holster it at all times on yourself.

even if a self defense exemption exists, the expectation or requirement of the arm always being upon the person while at home vs within reach while and functional in the home is the debate? is it not or am i missing something?

it seems that the second statement from the heller ruling indicates that “the requirement that any lawful arm in the home.....” being required to be rendered useless defeats the purpose of accessibility within the home.? and thus they ruled unconstitutional

So wouldn’t that second quote above that i pulled indicate the court did decide on trigger locks, and requiring storage within the home while an individual is there? making the distance between SF’s narrow self defense exemption and required deactivation of the arm and the heller ruling much closer to each others as the petition is claiming?


Thank you
DD

disclaimer* I’m having computer talent issues and couldn’t seem to recall how to put the fancy blue box quote around my heller quotes maybe it’ll come to me later

FABIO GETS GOOSED!!!
12-12-2014, 9:47 PM
Compare what the petition claims the SC "concluded" with what the SC actually said:

[T]his Court concluded that the Second Amendment entitles law-abiding individuals to keep a handgun in the home in a constitutionally relevant condition, i.e., to keep a handgun that is “operable for the purpose of immediate self-defense.”

vs.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

"Keeping" isn't the same thing as "rendering." "Rendering" the handgun operable for the purpose of immediate self-defense means unlocking/assembling it. The SC doesn't conclude that the 2A allows you to always "keep" handguns in an unlocked/assembled condition, but instead that a trigger lock/disassembly law that prohibits you from ever unlocking/assembling the handgun for use in self-defense violates the 2A. That's as far as Heller goes. Implicit in the "second statement" you pulled from the syllabus is locking/disassembly "at all times", that is how the requirement prohibits you from rendering the firearm operable. The SF law doesn't do that.

LoneYote
12-12-2014, 11:33 PM
FGG, is the firearms still "being carried" by a person if they are unconscious?
Do you read that the SC would have no issue with unloaded carry of arms because you would be able to render it operable for defense?
How much time do you think the SC would say is allowable in the rendering process?

ddestruel
12-13-2014, 3:23 AM
FGG thank you.....


i think i get hung up on

Marriam-websters definition
: to cause (someone or something) to be in a specified condition

: to give (something) to someone

law : to officially report or declare (a legal judgment, such as a verdict)



so the law was against the owner loading it and rendering it operable
or the law says a trigger lock must be in place when firearm is not in your possession, therefore rendering it inoperable but if you need it you may render it operable?
your argument on render seems to hinge on what SF is arguing in their scheme. its intriguing, from hellers arguments regarding self defense and the core being a functional arm at home.... if trigger locked while at home even if not on you then it is hardly easy to render it functional.......

but again as a layman i connect dots differently .... but appreciate your response as your take makes more sense

BlackCatRacing#13
12-13-2014, 5:04 AM
Sooner than July. 3 months depending on how much SF tries to stall? if everything goes smoothly it may have a shot at being heard and decided by the summer.


Yikes that was One Long Read I did of the "CERT PETITION" that was Submitted Today

Took Me On & Off about 6 Hours to Read through it all so Every Last One of the Honorable Judges on the Ninth Circuit of the Supreme Court of America better take their Sweet Time and Read Every Single Typed Word in that Cert Petition like I did but at least 4x Times a Day every Day til its Time to make a Fully Competent Answer


.

wolfwood
12-13-2014, 5:06 AM
FGG, is the firearms still "being carried" by a person if they are unconscious?
Do you read that the SC would have no issue with unloaded carry of arms because you would be able to render it operable for defense?
How much time do you think the SC would say is allowable in the rendering process?

SF's counsel in fact argued that you could keep it holstered to yourself while sleeping...

Paladin
12-13-2014, 5:38 AM
SF's counsel in fact argued that you could keep it holstered to yourself while sleeping...:facepalm:

I don't even wear a watch while I sleep....

My gun does nightstand duty when I sleep.

FABIO GETS GOOSED!!!
12-13-2014, 6:22 AM
FGG, is the firearms still "being carried" by a person if they are unconscious?
Do you read that the SC would have no issue with unloaded carry of arms because you would be able to render it operable for defense?
How much time do you think the SC would say is allowable in the rendering process?

Just to be clear, I'm not predicting what the SC would do if it decided this or another trigger lock case, only trying to flesh out what has and has not actually been decided, but I'll try to answer your questions. No I don't think a firearm is "carried" by someone who's asleep; to the extent that the SF law allows carry, however, it's a more permissive "self-defense exception" than proposed by DC in Heller, which was pretty much "you can unlock it if there is a sudden intruder or if you need to defend yourself against a rapist" and not "go ahead and carry whenever you want whether or not you actually have to use the firearm in self-defense." As to the second question, unloaded carry is still on the table as far as I can see; there was some discussion on this here a few years back. Lastly I don't know exactly how much time but I think they would tolerate at least some delay. At oral argument in Heller the respondents said they didn't have a problem with a "safe storage in a safe" law:

However, better [sic] safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws, which is to require safe storage, for example, in a safe. And that is a reasonable 12 limitation. It's a strict scrutiny limitation. Whatever standard of view we may wish to apply, I think, would encompass a safe storage provision.

Having said all that I like this case because it is next step from Heller and has good burden arguments. But Heller did not decide the legal issue this case presents, and I'm scratching my head why the cert petition argues that. "Rendering any lawful firearm in the home operable for the purpose of immediate self-defense" means unlocking the firearm when an immediate need presents itself, it does not mean "I'm entitled to keep an unlocked handgun that is immediately accessible in case something might happen."

speedrrracer
12-13-2014, 6:38 AM
But Heller did not decide the legal issue this case presents, and I'm scratching my head why the cert petition argues that. "Rendering any lawful firearm in the home operable for the purpose of immediate self-defense" means unlocking the firearm when an immediate need presents itself, it does not mean "I'm entitled to keep an unlocked handgun that is immediately accessible in case something might happen."

That doesn't seem to make sense.

"Immediate" means: "occurring or done at once; instant." also "nearest in time" according to google. If I have to fiddle with a lock first, then a gun is, by dictionary definition, not available immediately, it is only available subsequent to other action.

What am I missing?

wolfwood
12-13-2014, 6:46 AM
Just to be clear, I'm not predicting what the SC would do if it decided this or another trigger lock case, only trying to flesh out what has and has not actually been decided, but I'll try to answer your questions. No I don't think a firearm is "carried" by someone who's asleep; to the extent that the SF law allows carry, however, it's a more permissive "self-defense exception" than proposed by DC in Heller, which was pretty much "you can unlock it if there is a sudden intruder or if you need to defend yourself against a rapist" and not "go ahead and carry whenever you want whether or not you actually have to use the firearm in self-defense." As to the second question, unloaded carry is still on the table as far as I can see; there was some discussion on this here a few years back. Lastly I don't know exactly how much time but I think they would tolerate at least some delay. At oral argument in Heller the respondents said they didn't have a problem with a "safe storage in a safe" law:



Having said all that I like this case because it is next step from Heller and has good burden arguments. But Heller did not decide the legal issue this case presents, and I'm scratching my head why the cert petition argues that. "Rendering any lawful firearm in the home operable for the purpose of immediate self-defense" means unlocking the firearm when an immediate need presents itself, it does not mean "I'm entitled to keep an unlocked handgun that is immediately accessible in case something might happen."

Does the fact this was a preliminary injunction appeal impact anything? The petitioners filed for preliminary injunction relatively late into proceedings. 3.5 years as I recall. The Ninth explicitly avoided the other three factors as this appeal was lost at the merits prong of the Winters test.

If the Supreme Court does decide in Jackson's favor does it then remand back to the Ninth to decide the other three factors or will it make a independent review of those prongs of the Winters test?

FABIO GETS GOOSED!!!
12-13-2014, 11:37 AM
What am I missing?

Who said "available immediately" and where? Here is some suggested reading: Heller opinion, Heller appellant and respondent briefs, Heller oral argument transcript. Whenever a " self-defense exception" to the trigger lock rule is mentioned, is it (1) if someone breaks into your house you can unlock your handgun and defend yourself against that specific threat, or (2) a 24/7 unlocked, just in case I may need to defend myself sometime, swallow-the-rule exception? If (2) where in the record do you find any support for that? Remember that Heller's attorney told the SC "store it in a safe, no problemo!"

IVC
12-13-2014, 12:02 PM
"Keeping" isn't the same thing as "rendering." "Rendering" the handgun operable for the purpose of immediate self-defense means unlocking/assembling it. The SC doesn't conclude that the 2A allows you to always "keep" handguns in an unlocked/assembled condition, but instead that a trigger lock/disassembly law that prohibits you from ever unlocking/assembling the handgun for IMMEDIATE use in self-defense violates the 2A.

Don't skip words when being very precise.

If we are to read it as narrowly as you suggest, we also have to attribute the correct meaning to "immediate." Courts typically use common dictionary definitions when interpreting such terms, and "immediate" is defined in Webster (http://www.merriam-webster.com/dictionary/immediate) as "occurring, acting, or accomplished without loss or interval of time." Note that it doesn't say "with minimal time," but "without loss of time."

ArchangelZeroSix
12-13-2014, 12:59 PM
Who said "available immediately" and where?

From the cert petition quoting Heller.

"...this Court has already established “the
manner” in which individuals are entitled to exercise
their Second Amendment rights in their homes, which
is by keeping a handgun that is “operable for the
purpose of immediate self-defense.” Heller, 554 U.S.
at 635." pp.15

I don't think "...I would have to turn
on the light, find my glasses, find the key to the
lockbox, insert the key in the lock and unlock the box
(under the stress of the emergency), and then get my
gun before being in position to defend myself..." [cert petition pp.5] would qualify as immediate.

or (2) a 24/7 unlocked, just in case I may need to defend myself sometime, swallow-the-rule exception? If (2) where in the record do you find any support for that?

It would seem to be (2) "There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency;" Heller, 554 at 629. A gun being in a lockbox doesn't satisfy 'readily'.

FABIO GETS GOOSED!!!
12-13-2014, 2:11 PM
From the cert petition quoting Heller.

"...this Court has already established “the
manner” in which individuals are entitled to exercise
their Second Amendment rights in their homes, which
is by keeping a handgun that is “operable for the
purpose of immediate self-defense.” Heller, 554 U.S.
at 635." pp.15

Have a look at my earlier "keep" vs "render" post where this particular sentence from the Heller is quoted in full. The Supreme court does not say what the petition claims it says.

It would seem to be (2) "There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency;" Heller, 554 at 629. A gun being in a lockbox doesn't satisfy 'readily'.

"Readily accessible location" is equivocal with respect to the condition of the handgun that happens to be stored in that location, it could be unlocked and assembled, it could be locked or disassembled. For sure this language is useful for arguing that even a trigger lock law with a self-defense exception is unconstitutional, but, contrary to the cert petition, the Supreme court has not yet decided that. The SC knocked down DC's law expressly because it lacked the self-defense exception i.e. it did not permit the unlocking and/or assembly of the handgun under any circumstances.

The funny comments in the transcript by two of the judges about putting on your reading glasses, etc., are useful as well, more for the arguments made in the 9th circuit briefs than the cert petition's new "the court already decided this" claim.

FABIO GETS GOOSED!!!
12-13-2014, 2:31 PM
Don't skip words when being very precise.

You're absolutely right, what Heller was talking about was "rendering any lawful firearm in the home operable for the purpose of immediate self-defense" and more particularly, rendering the firearm operable for the purpose of immediate self-defense from a locked or disassembled condition. That was the only self-defense exception to the trigger lock law under consideration, and the illustrations before the court of that self-defense exception were:

According to respondent, even if he lawfully possessed a handgun, the District would prohibit him from unlocking it to defend himself against a sudden intruder in his home. If respondent were correct, the District agrees that the law would be unreasonable.

and

Such an exception is fairly implied in the trigger lock requirement, just as it is in many of the District’s other laws....As Councilmember Wilson noted, “it would have to be a very irresponsible and unintelligent judge” who would punish a person for unlocking and using a gun to defend herself against a rapist.

"Immediate self-defense" isn't having an unlocked, assembled handgun sitting on the dresser while you're lying on your bed in your PJ's watching Netflix, or in a holster down around your ankles while you're taking a crap, or carrying it around the house just in case. "Immediate self-defense" is defending yourself against a specific threat that's happening right now. The DC law did not allow the unlocking or disassembly of the handgun in order to do that so "hence" it was unconstitutional.

FABIO GETS GOOSED!!!
12-13-2014, 2:33 PM
Does the fact this was a preliminary injunction appeal impact anything? The petitioners filed for preliminary injunction relatively late into proceedings. 3.5 years as I recall. The Ninth explicitly avoided the other three factors as this appeal was lost at the merits prong of the Winters test.

If the Supreme Court does decide in Jackson's favor does it then remand back to the Ninth to decide the other three factors or will it make a independent review of those prongs of the Winters test?

No idea! I haven't done any research on this.

speedrrracer
12-13-2014, 3:14 PM
Have a look at my earlier "keep" vs "render" post where this particular sentence from the Heller is quoted in full. The Supreme court does not say what the petition claims it says.


I did, and it struck me as wrong, so I (mistakenly, it seems) thought there must be more information I didn't have. I think it's clear SCOTUS and the petition are in complete agreement.

To subscribe to your interpretation of the intention of "render" in that phrase I would have to conclude Scalia is inept in the use of the English language (which he is not, imo).
To choose the term "immediate" when (according to you) his intention was to convey that the Constitution provides that the legislature may mandate delays in access to self-defense weapons in an emergency makes no sense whatsoever. There is, imo, no worse term he could possibly have chosen under your interpretation, and even omission would have been clearer.

Your interpretation strikes me as wildly pedantic and irresponsible, although many legal interpretations strike me that way, so you may well be right.

On a bit of a tangent, are there are similar delays that are Constitutionally supported? Someone is about to die, and the Constitution says it's OK for them to die if they can't jump through hoops in time?

For example, would a law be Constitutional which declared that an ER doctor can delay / deny access to care to a person who, in the judgement of the doctor, has only seconds to live unless he receives that care?

"No, do not give that patient oxygen until he fills out his forms in triplicate. And her, don't try to get her heart beating again, there's an error on one of her forms. I don't care if he has no hands of if she is unconscious, the law requires it!"

ArchangelZeroSix
12-13-2014, 9:51 PM
Have a look at my earlier "keep" vs "render" post where this particular sentence from the Heller is quoted in full.

I have, and I do not agree. Heller did say what the petition claims. Your 'keep' vs 'render' debate is semantics. It also ignores the entire historical analysis the Court undertook of the right to 'keep and bear arms'. Keep is mentioned in Heller 107 times, but I'll point to this particular quote:

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right...Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

My emphasis added. Couple that with having this gun that you are constitutionally allowed to keep, 'readily accessible'. Readily (without hesitation;without delay) does not qualify if one must take an additional step to access it—let alone use it.

"Readily accessible location" is equivocal with respect to the condition of the handgun that happens to be stored in that location, it could be unlocked and assembled, it could be locked or disassembled.

No it doesn't mean that at all. Readily accessible in no way addresses the condition of the firearm, and it doesn't need to. Heller already affirmed: 1) Self-defense is the core right. 2) The firearm must be operable. 3) The firearm must be immediately available and readily accessible for defending one's 'home and family'.

For sure this language is useful for arguing that even a trigger lock law with a self-defense exception is unconstitutional, but, contrary to the cert petition, the Supreme court has not yet decided that. The SC knocked down DC's law expressly because it lacked the self-defense exception i.e. it did not permit the unlocking and/or assembly of the handgun under any circumstances.

Any law with a 'self-defense exception' would 1) make no sense, and 2) violates the plain language in Heller. As I have pointed out from Heller, if the firearm isn't 'readily accessible' for the ' purpose of immediate self-defense' than the law is unconstitutional. This is consistent with the cert petition—let's hope SCOTUS agrees.

kcbrown
12-14-2014, 12:15 AM
I've been asked to comment (http://calguns.net/calgunforum/showpost.php?p=15441947&postcount=2354) here. As such, I will do so. :)

Firstly, the hypothesis I'm going under as regards SCOTUS says they will deny cert to this case, because they have been denying cert to all 2A cases. I will say that this case, because of the subject matter, looks to be a litmus test of that. If they deny cert here, then that'll be pretty much conclusive evidence, IMO, that they really are done with the 2nd Amendment. If they grant cert then, of course, I will (very happily) toss my SCOTUS hypothesis out the window.

SCOTUS rarely seems to say why they deny cert (indeed, have they ever? That's a serious question, by the way -- I'd really like to know), so I wouldn't expect them to make an exception for this case.

Secondly, I fully expect SCOTUS to overturn the 9th Circuit's decision on this if they do take it. Failure on their part to overturn after taking it will make a mockery of Heller, as the law does not, that I know of, make any exception for someone who is sleeping, and someone who is sleeping clearly cannot be carrying the firearm while they're sleeping (unless they're sleepwalking. Let's not go there, okay? :) ).

kcbrown
12-14-2014, 12:21 AM
You're absolutely right, what Heller was talking about was "rendering any lawful firearm in the home operable for the purpose of immediate self-defense" and more particularly, rendering the firearm operable for the purpose of immediate self-defense from a locked or disassembled condition. That was the only self-defense exception to the trigger lock law under consideration, and the illustrations before the court of that self-defense exception were:



and


"Immediate self-defense" isn't having an unlocked, assembled handgun sitting on the dresser while you're lying on your bed in your PJ's watching Netflix, or in a holster down around your ankles while you're taking a crap, or carrying it around the house just in case. "Immediate self-defense" is defending yourself against a specific threat that's happening right now. The DC law did not allow the unlocking or disassembly of the handgun in order to do that so "hence" it was unconstitutional.

"Immediate self-defense" may be that, but operable for the purpose of immediate self-defense (which is what you actually said) is not. Being operable for the purpose of immediate self-defense means meeting whatever prerequisites are necessary to make immediate self-defense possible with the handgun, which includes actually getting it in your hands (a handgun is not "operable" if you cannot operate it despite being capable of doing so, and you cannot operate it if it is not in your hands. Were this not the case, laws which forbid you from retrieving your weapon that is otherwise in an operable state would be "Constitutional" under Heller). And that means not having any artificially-imposed delays in retrieving the handgun and getting it configured so that it is ready for immediate self-defense.

Your argument amounts to the proposition that it is "Constitutional" (consistent with Heller) for a law to require that someone store their "operable" firearm in a safe that only the police have the combination to, and that they call the police to get the combination in order to retrieve the "operable" firearm. It is a vacuous argument, one which utterly ignores the very purpose of protecting the right to arms: preservation of life and limb in situations where either are gravely threatened.

FABIO GETS GOOSED!!!
12-14-2014, 6:10 AM
"Immediate self-defense" may be that, but operable for the purpose of immediate self-defense (which is what you actually said) is not.

Maybe you should have written the cert petition since you're leaving out the rendering part too lol. The SC is the one who said "rendering operable...immediate self-defense" first.

And that means not having any artificially-imposed delays in retrieving the handgun and getting it configured so that it is ready for immediate self-defense.

That is what is yet to be decided, isnt' it? Maybe someone will file an "any gun law that prevents me from carrying my handgun in my hands will I go grocery shopping is unconstitutional because it is an artificial delay to have to carry it in a holster then draw it under stress." If you were the judge that would be a winning lawsuit. Like the Heller plaintiffs said, a "reasonable limitation" like storing your gun in a safe and retrieving it when you need it is ok...whoops, need to stop myself from making pro and con arguements and stick to what was and was not decided in Heller!

FABIO GETS GOOSED!!!
12-14-2014, 6:27 AM
Heller already affirmed: 1) Self-defense is the core right. 2) any trigger lock law that prohibits you from rendering your handgun operable or the purpose of immediate self-defense i.e. does not have a self-defense exception is therefore unconstitutional.

You're jumping the gun a little so I fixed your post.

A trigger lock law with a self-defense exception makes no sense. Of course, that's why the Heller opinion cited the lack of a self-defense exception (handgun must be locked at all times and may not be rendered operable for the purpose of immediate self-defense) as the reason why DC's trigger lock law was unconstitutional. When you have such a careful writer/linguist like Scalia it's much more direct and precise to do it that way instead of just saying "no self-defense exception is going to help the trigger law because self-defense exceptions make no sense!" Going through the irrelevant exercise of deciding whether DC's trigger lock law did or did not have the self-defense exception that DC was arguing it did (e.g., you can unlock your handgun if there is a sudden intruder) is basically the same thing as saying "we think self-defense exceptions make no sense," right? I think you've convinced me!

Oger2
12-14-2014, 6:33 AM
I've been asked to comment (http://calguns.net/calgunforum/showpost.php?p=15441947&postcount=2354) here. As such, I will do so. :)

Firstly, the hypothesis I'm going under as regards SCOTUS says they will deny cert to this case, because they have been denying cert to all 2A cases. I will say that this case, because of the subject matter, looks to be a litmus test of that. If they deny cert here, then that'll be pretty much conclusive evidence, IMO, that they really are done with the 2nd Amendment. If they grant cert then, of course, I will (very happily) toss my SCOTUS hypothesis out the window.

SCOTUS rarely seems to say why they deny cert (indeed, have they ever? That's a serious question, by the way -- I'd really like to know), so I wouldn't expect them to make an exception for this case.

Secondly, I fully expect SCOTUS to overturn the 9th Circuit's decision on this if they do take it. Failure on their part to overturn after taking it will make a mockery of Heller, as the law does not, that I know of, make any exception for someone who is sleeping, and someone who is sleeping clearly cannot be carrying the firearm while they're sleeping (unless they're sleepwalking. Let's not go there, okay? :) ).



Is that poster the President of the KC Brown fan club too?

lowimpactuser
12-14-2014, 6:37 AM
"Immediate self-defense" may be that, but operable for the purpose of immediate self-defense (which is what you actually said) is not. Being operable for the purpose of immediate self-defense means meeting whatever prerequisites are necessary to make immediate self-defense possible with the handgun, which includes actually getting it in your hands (a handgun is not "operable" if you cannot operate it despite being capable of doing so, and you cannot operate it if it is not in your hands. Were this not the case, laws which forbid you from retrieving your weapon that is otherwise in an operable state would be "Constitutional" under Heller). And that means not having any artificially-imposed delays in retrieving the handgun and getting it configured so that it is ready for immediate self-defense.

Your argument amounts to the proposition that it is "Constitutional" (consistent with Heller) for a law to require that someone store their "operable" firearm in a safe that only the police have the combination to, and that they call the police to get the combination in order to retrieve the "operable" firearm. It is a vacuous argument, one which utterly ignores the very purpose of protecting the right to arms: preservation of life and limb in situations where either are gravely threatened.

Thanks for the comment! A LOT of people here will scream bloody murder that you're being selective on cases you comment on, that your hypothesis and such is cherry-picking, you're a no good dirty statist, you're destroying America, whatever. I think you've certainly got a good mind for playing this guessing game (and you do seem to have the time :D) so I thought rather than you waiting for people to write something interesting in the Peruta thread you should post on another thread. Now, no one can accuse you of denying any opportunity to test your hypothesis; and as in many things, I HOPE YOU'RE WRONG, just as I'm sure you do as well.

Now instead of waiting for the next seed group of corn, tilling the field, planting, watering and caring, and then harvesting, we can both pick up a bunch of popcorn now and wait for the SCOTUS decision on cert.

ArchangelZeroSix
12-14-2014, 7:30 AM
You're jumping the gun a little so I fixed your post.

If by 'fixed' you mean skipping half of my post, I'll grant you that.

Of course, that's why the Heller opinion cited the lack of a self-defense exception (handgun must be locked at all times and may not be rendered operable for the purpose of immediate self-defense) as the reason why DC's trigger lock law was unconstitutional.

Where in Heller does the Opinion state that a trigger-lock law with a self defense exception is constitutional?

Your entire argument is based on the false premise that 'because SCOTUS didn't explicitly say a gun storage requirement is unconstitutional, that means it isn't'. This is akin to the anti argument of 'the Second Amendment doesn't cover modern firearms because the founders only had muskets'.

Its an extremely narrow reading of the Opinion, much the same that the latter argument is a narrow interpretation of the Second Amendment. Your cherry picking of one phrase in Heller again ignores what the historical analysis set out to affirm, that the Second Amendment is an individual right and the core of that right is self-defense. When discussing the issue of law, the Court made it clear that D.C.'s law was unconstitutional because it prohibited a person from 'immediately' defending one's 'home and family' and ensuring an 'operable' firearm is 'readily accessible'.

lowimpactuser
12-14-2014, 8:01 AM
Now that we've got the KC weigh in, I want to stir the pot further.

Can anyone come up with a theory that's substantively DIFFERENT than KC's if SCOTUS denies cert?

Many, many people talk about what will happen, but few actually put up theories, and actually make predictions that can be proven right or wrong.

So, would any of the longer term people care to say if cert is DENIED, how KC is still wrong? I'm not saying he's right, but now that we have basically the perfect case to test his prediction SCOTUS is DONE with the 2nd, and abandoning Heller, and we'll get a relatively quick decision on the matter, I'd like any and all heavyweights to weigh in. Fabio, TinCon, Calguns staff, Crom, and a bunch I'm forgetting; but would LOVE to hear ALTERNATE ideas for WHY cert would be denied.

Otherwise, everyone WILL believe KCbrown is correct, at least on some level, before they spin the decision post-hoc into something that allows them to keep their Panglossian worldview. I'm tired of seeing post-hoc reasoning and such, except from people that must keep mum (i.e., Michel and Associates- thanks for being awesome, btw)

Drivedabizness
12-14-2014, 8:12 AM
I did, and it struck me as wrong, so I (mistakenly, it seems) thought there must be more information I didn't have. I think it's clear SCOTUS and the petition are in complete agreement.

To subscribe to your interpretation of the intention of "render" in that phrase I would have to conclude Scalia is inept in the use of the English language (which he is not, imo).
To choose the term "immediate" when (according to you) his intention was to convey that the Constitution provides that the legislature may mandate delays in access to self-defense weapons in an emergency makes no sense whatsoever. There is, imo, no worse term he could possibly have chosen under your interpretation, and even omission would have been clearer.

Your interpretation strikes me as wildly pedantic and irresponsible, although many legal interpretations strike me that way, so you may well be right.

On a bit of a tangent, are there are similar delays that are Constitutionally supported? Someone is about to die, and the Constitution says it's OK for them to die if they can't jump through hoops in time?

For example, would a law be Constitutional which declared that an ER doctor can delay / deny access to care to a person who, in the judgement of the doctor, has only seconds to live unless he receives that care?

"No, do not give that patient oxygen until he fills out his forms in triplicate. And her, don't try to get her heart beating again, there's an error on one of her forms. I don't care if he has no hands of if she is unconscious, the law requires it!"

Unfortunately, Scalia IS inept in his use of language.

If not, we would not still be going through all of the lawsuits against the most egregious existing and new laws that continue to be passed.

Scalia went to great lengths to include the (I'm paraphrasing) presumably lawful, longstanding restrictions & regulations language. The anti's continue to point to that language as the justification for every measure they promote. He ignored the fact that at both the Federal and State & local level, there are a plethora of blatantly unconstitutional provisions on the books - and more coming.

A little more precise language might have gone a long way and would not have been inappropriate given the 2A finally being identified as an enumerated individual right in the modern era.

FABIO GETS GOOSED!!!
12-14-2014, 8:52 AM
Where in Heller does the Opinion state that a trigger-lock law with a self defense exception is constitutional?

It doesn't, duh! (although it kind of implies it when it expressly says that DC's law was unconstitutional because it didn't have one lol). It doesn't say that trigger-lock laws with self-defense exceptions are unconstitutional, either. You know why? This legal issue hasn't been decided yet!

Your entire argument...

Which argument are you talking about? The argument that the SC hasn't yet decided whether trigger lock laws with no self-defense exception are unconstitutional?

Your cherry picking of one phrase in Heller again ignores what the historical analysis set out to affirm, that the Second Amendment is an individual right and the core of that right is self-defense.

Sorry for "cherry picking" the specific phrase in the opinion where the SC explains why it was ruling the trigger lock law unconstitutional lol.

When discussing the issue of law, the Court made it clear that D.C.'s law was unconstitutional because it prohibited a person from "immediately' defending one's 'home and family' and ensuring an 'operable' firearm is 'readily accessible'.

I'm not sure I can even call that "cherry picking," it looks more like the cert petition which leaves important stuff out, like, the complete phrase that explains specifically why the court ruled against the trigger-lock law. Just for fun, let's have another look at "It is easier to store in a location that is readily accessible in an emergency." "Store" means "to put (something that is not being used) in a place where it is available, where it can be kept safely, etc." That's from Merriam Webster. "Kept safely," hmmm. Let's ignore whatever arguments there might be that a handgun sitting out in the open on your dresser arm's length away isn't really "kept safely." Go ahead and assume that "kept safely" doesn't mean "locked up" somewhere, you know, like "safe storage, for example, in a safe." (I know, more cherry picking, this time it's stuff that was actually argued by Heller's attorney in open court.) Just don't even think about "safe keeping" at all. So, moving along, where exactly is this "location that is readily accessible in an emergency" where the handgun will be "stored"? Does "in a location that is readily accessible" mean "in the house"? "in the bedroom"? Somewhere else?

ArchangelZeroSix
12-14-2014, 8:53 AM
Unfortunately, Scalia IS inept in his use of language.

If not, we would not still be going through all of the lawsuits against the most egregious existing and new laws that continue to be passed.

Scalia went to great lengths to include the (I'm paraphrasing) presumably lawful, longstanding restrictions & regulations language. The anti's continue to point to that language as the justification for every measure they promote. He ignored the fact that at both the Federal and State & local level, there are a plethora of blatantly unconstitutional provisions on the books - and more coming.

A little more precise language might have gone a long way and would not have been inappropriate given the 2A finally being identified as an enumerated individual right in the modern era.

The anti's argument though is lacking. They conveniently skip what was written right before the 'long standing prohibitions' portion of the Opinion.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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

My emphasis added. The Court examined what was before them. Does the Second Amendment protect an individual's right to 'keep and bear' a firearm? Is this right unconnected with service in the militia? What is the core right? And does D.C.'s law violate this right?

It is always my argument that if Heller were to have broadly struck down things not within the scope of the case, it would have smacked of judicial activism (even though I'm constantly told by the anti's that Scalia 'rewrote' the Constitution).

Heller should IMO, be viewed as a foundation on which to strike down further infringements.

FABIO GETS GOOSED!!!
12-14-2014, 9:08 AM
(I probably shouldn't point out that the Heller plaintiffs argued "the right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary" at the same time that they were arguing "However, better [sic] safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws, which is to require safe storage, for example, in a safe. And that is a reasonable limitation. It's a strict scrutiny limitation. Whatever standard of view we may wish to apply, I think, would encompass a safe storage provision." That would be unfair cherry picking if I did that and besides, maybe the Heller plaintiffs didn't realize that "readily accessible" is inconsistent with "safe storage, for example, in a safe" lol.)

ArchangelZeroSix
12-14-2014, 9:28 AM
It doesn't, duh! (although it kind of implies it when it expressly says that DC's law was unconstitutional because it didn't have one lol). It doesn't say that trigger-lock laws with self-defense exceptions are unconstitutional, either. You know why? This legal issue hasn't been decided yet!

The legal issue has been decided. It's in Heller and has been pointed out to you. Read KC's far more eloquent break down of the important words again.

Which argument are you talking about? The argument that the SC hasn't yet decided whether trigger lock laws with no self-defense exception are unconstitutional?

The one you are making.

Sorry for "cherry picking" the specific phrase in the opinion where the SC explains why it was ruling the trigger lock law unconstitutional lol.

Opinion not based in reality—it again ignores the holding of what the 2A right is and why D.C.'s laws violated it. Might as well just pick out the 'not unlimited' part and make that the focal point if we're cherry picking.

"It is easier to store in a location that is readily accessible in an emergency." "Store" means "to put (something that is not being used) in a place where it is available, where it can be kept safely, etc." That's from Merriam Webster. "Kept safely," hmmm. Let's ignore whatever arguments there might be that a handgun sitting out in the open on your dresser arm's length away isn't really "kept safely.

You are again ignoring 'readily accessible'. How do you know a firearm—in whichever location and in whichever manner I so choose—isn't being 'kept safely' just because it isn't locked?

Go ahead and assume that "kept safely" doesn't mean "locked up" somewhere, you know, like "safe storage, for example, in a safe." (I know, more cherry picking, this time it's stuff that was actually argued by Heller's attorney in open court.)

An argument which shows up nowhere in the holding of Heller. Irrelevant.

Just don't even think about storage and "safe keeping" at all. So, moving along, where exactly is this "location that is readily accessible in an emergency"? Does "in a location that is readily accessible" mean "in the house"? "in the bedroom"? Somewhere else?

In a location that allows me without delay (readily) to access my firearm, to 'immediately' defend my 'home and family'. It's pretty simple.

kcbrown
12-14-2014, 9:54 AM
Maybe you should have written the cert petition since you're leaving out the rendering part too lol. The SC is the one who said "rendering operable...immediate self-defense" first.


The Court said that in the holding ("In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."). It did not say only that in the reasoning behind the holding. And as the reasoning is jurisprudential as well as the holding, it follows that one can use that reasoning to derive new positions and be consistent with Heller.

Part of that reasoning is:


There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.


(emphasis mine)

But yes, the Court also dealt with the disassembly/trigger lock requirement more directly, noting that it did not have a self-defense exception despite what DC tried to argue.


It may be possible to read Heller as narrowly as you are, but if so, that would render void the purpose of the 2nd Amendment's protection that was stated in Heller: immediate self-defense. It would make Heller a completely empty victory, for a handgun that is ready for use is of no use at all if it is inaccessible, and you are arguing that Heller allows for that, that it stands only for the proposition that the gun not be required to be configured to be inoperable.



That is what is yet to be decided, isnt' it?
Yes, and maybe even by this case, at that.

Drivedabizness
12-14-2014, 9:54 AM
I completely stand by my earlier statement.

Yes, the Court can only decide the matter(s) before it. But having clearly established the fundamental, enumerated, individual right, to turn around and insert needless language about issues NOT before the Court (no one is arguing 2A rights for un-rehabilitated felons, or for those adjudicated mentally ill) Scalia's language went far beyond.

Hence the ongoing mischief on the definition of sensitive places, common use and the justification of some of the most onerous regulations just because they've been in place for a while.

The ongoing refusal to grant cert merely sows confusion and encourages those that would abridge our rights. That's not the purpose of the Court.

FABIO GETS GOOSED!!!
12-14-2014, 9:57 AM
Oh god another tit for tatter lol. I'll do the tit for tat one time for fun.

The legal issue has been decided. It's in Heller and has been pointed out to you. Read KC's far more eloquent break down of the important words again.

Rrright. The SC decided that trigger lock laws are always unconstitutional and the only self-defense exception that it permissible is one that swallows the rule.

The one you are making.

Cute!

Opinion not based in reality—it again ignores the holding of what the 2A right is and why D.C.'s laws violated it. Might as well just pick out the 'not unlimited' part and make that the focal point if we're cherry picking.

The holding was that DCs trigger law did not allow armed self defense in the home ever. The SF trigger lock law does. There might be just a tiny difference there, won't you give me that? lol.

You are again ignoring 'readily accessible'. How do you know a firearm—in whichever location and in whichever manner I so choose—isn't being 'kept safely' just because it isn't locked?

Well, I don't think I was ignoring it since I talked about "readily accessible" a couple times, including pointing out that the Heller plaintiffs didn't seem to think that "readily accessible" and "safe storage in a safe" were mutually exclusive like you seem to do.

An argument which shows up nowhere in the holding of Heller. Irrelevant.

That's what I said, just ignore any "safe keeping" connotation! Because the SC would never consider that definition of "store" and they don't really listen to oral arguments anyway.

In a location that allows me without delay (readily) to access my firearm, to 'immediately' defend my 'home and family'. It's pretty simple.

Don't be chicken, just identify a readily accessible location where a handgun is easier to store than other firearms. The SC must have had some location in mind, right? Why else would they say that? Or maybe they're just making stuff up? lol.

kcbrown
12-14-2014, 10:04 AM
(I probably shouldn't point out that the Heller plaintiffs argued "the right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary" at the same time that they were arguing "However, better [sic] safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws, which is to require safe storage, for example, in a safe. And that is a reasonable limitation. It's a strict scrutiny limitation. Whatever standard of view we may wish to apply, I think, would encompass a safe storage provision." That would be unfair cherry picking if I did that and besides, maybe the Heller plaintiffs didn't realize that "readily accessible" is inconsistent with "safe storage, for example, in a safe" lol.)

Or maybe they were referring to storage as, you know, storage, wherein you place the gun inside the safe when you're not going to be around or when you anticipate not needing ready access to it.

I store things when I'm not going to be around or when the thing I'm storing isn't something I'm going to need ready access to. I don't store something even when I need ready access to it. In that case, I make it immediately available.


Firearms are somewhat different from your garden variety tools. Their lack of immediate availability may mean the difference between living and dying. If I leave my wrench set in my locked tool chest while working on my car, it is an inconvenience for me to go fetch them. But if I leave my gun in my locked safe and someone busts into my home while I'm asleep, it is no mere inconvenience for me to go fetch my gun from the safe -- it is a time-critical action, one which can make the difference between living and dying. The imposition of a requirement that I keep my gun in the safe while I'm sleeping or doing something that prevents me from carrying it is an imposition that can get me killed. If Heller does not stand for the proposition that impositions on the right, most especially those which can get the people being imposed upon killed, are impermissible, then it is in fact worthless.

I note that you did not address the argument that what you are saying amounts to the proposition that a law that requires you to at all times keep your so-called "operable" firearm in a safe that only the police have the combination for, and that requires you call the police to get the safe's combination, is "Constitutional" under Heller. If some artificially imposed delay is permissible under Heller, then what amount of artificially-imposed delay is not?

FABIO GETS GOOSED!!!
12-14-2014, 10:05 AM
Yes, and maybe even by this case, at that.

I don't think we're in disagreement here. You can use language from Heller to make arguments that the SF trigger lock law is unconstitutional, like Jackson did to the 9th circuit. But telling the SC in a cert petition that it already decided that is something different entirely.

kcbrown
12-14-2014, 10:20 AM
I don't think we're in disagreement here. You can use language from Heller to make arguments that the SF trigger lock law is unconstitutional, like Jackson did to the 9th circuit. But telling the SC in a cert petition that it already decided that is something different entirely.

Sounds like you're referring to this in the cert petition:


Even if this Court prefers to allow issues not directly decided in Heller and McDonald to percolate, there is no reason to let stand a decision that approves precisely what Heller invalidated and denies the central right to possess a handgun that is “operable for the purpose of immediate self-defense.” Heller, 554 U.S. at 635 (emphasis added).
The above could be read either to mean that Heller directly decided the issue in question (which I agree is technically incorrect unless one includes the reasoning for the decision as part of the decision), or that it did not but that this issue is invalidated by Heller nonetheless. You seem to be interpreting it only in the former manner, whilst others (myself included) are interpreting it in the latter manner (or in the former manner such that the reasoning behind the decision is included in the decision). Either interpretation is valid, I suppose.

Let's suppose your reading of it is correct. Should that be sufficient to dispose of the case?



Either way, the petition was written by the best litigator on the planet, so it couldn't possibly be wrong ... right? :D (sorry, guys, I couldn't resist this one. I have tons of respect for both Michel and Clement, so this really is said in jest, sort of a jab at Tincon).

ArchangelZeroSix
12-14-2014, 10:35 AM
The SF trigger lock law does. There might be just a tiny difference there, won't you give me that? lol.

No it doesn't. No, I won't :) As I have stated, that does not address 'immediate' nor 'readily accessible'.

Well, I don't think I was ignoring it since I talked about "readily accessible" a couple times, including pointing out that the Heller plaintiffs didn't seem to think that "readily accessible" and "safe storage in a safe" were mutually exclusive like you seem to do.

The text I quoted you in focused on 'store' and 'keep[ing] safely'. Again, what Heller's lawyers argued is irrelevant in regards to this particular instance. KC did another great job breaking that down.

That's what I said, just ignore any "safe keeping" connotation! Because the SC would never consider that definition of "store" and they don't really listen to oral arguments anyway.

Maybe you don't want to bring up what Heller's counsel argued for the third (?) time then.

Don't be chicken, just identify a readily accessible location where a handgun is easier to store than other firearms. The SC must have had some location in mind, right? Why else would they say that? Or maybe they're just making stuff up? lol.

I didn't think it necessary since I thought my post explained it quite well, but I'll humor you. A nightstand table drawer (no lock). That's one of many.

Why must they have had a 'specific location' in mind? If they did, you'd think they'd mention it explicitly. Or maybe they thought they were pretty clear when they said 'readily accessible' and that the core right shouldn't need any additional barriers in a life and death situation.

M. D. Van Norman
12-14-2014, 10:36 AM
Maybe someone will file an “any gun law that prevents me from carrying my handgun in my hands will I go grocery shopping is unconstitutional.…”

I’ve often wondered about this. If open carry is more honest and upright than concealed carry, then wouldn’t carrying the weapon in your hand be even more honest and even more upright? Every second that you weren’t blasting your fellow shoppers would be proof of your peaceful, law-abiding intentions. :p

ArchangelZeroSix
12-14-2014, 10:50 AM
I completely stand by my earlier statement.

Yes, the Court can only decide the matter(s) before it. But having clearly established the fundamental, enumerated, individual right, to turn around and insert needless language about issues NOT before the Court (no one is arguing 2A rights for un-rehabilitated felons, or for those adjudicated mentally ill) Scalia's language went far beyond.

Hence the ongoing mischief on the definition of sensitive places, common use and the justification of some of the most onerous regulations just because they've been in place for a while.

The ongoing refusal to grant cert merely sows confusion and encourages those that would abridge our rights. That's not the purpose of the Court.

I agree with your view as well, I was only pointing out that the Court was somewhat constrained with Heller. Sure, it would be nice to see SCOTUS go all out (to a point), but I fear the backlash would put further litigation in jeopardy. Better they decide a variety of good cases and issue well crafted opinions that build solid 2A jurisprudence, than to issue a hasty and maybe not so well crafted all-encompassing decision that will be tore down—brick by brick—over time.

Oger2
12-14-2014, 10:56 AM
The holding was that DCs trigger law did not allow armed self defense in the home ever. The SF trigger lock law does. There might be just a tiny difference there, won't you give me that? lol.










No it doesn't. No, I won't :) As I have stated, that does not address 'immediate' nor 'readily accessible'.





SF law only requires locked storage when owner of the gun is not present within the home.

M. D. Van Norman
12-14-2014, 10:57 AM
The Court said that in the holding (“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”).

Because the Second Amendment right doesn’t extend to rendering a self-defense weapon operable outside the home. :p

That’s what the lower courts have been telling us for the most part anyway. :facepalm:

ArchangelZeroSix
12-14-2014, 11:03 AM
SF law only requires locked storage when owner of the gun is not present within the home.

Yes, but in that instance, the gun must be on your person, right?

kcbrown
12-14-2014, 11:10 AM
SF law only requires locked storage when owner of the gun is not present within the home.

Wrong. Badly wrong. Where in the world are you getting this stuff from??

Here's the ordinance:


SEC. 4512. HANDGUNS LOCATED IN A RESIDENCE TO BE KEPT IN A LOCKED CONTAINER OR DISABLED WITH A TRIGGER LOCK.(a) Prohibition. No person shall keep a handgun within a residence owned or controlled by that person unless the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice.
(b) Definitions.
(1) "Residence." As used in this Section, "residence" is any structure intended or used for human habitation including but not limited to houses, condominiums, rooms, in law units, motels, hotels, SRO's, time-shares, recreational and other vehicles where human habitation occurs.
(2) "Locked container." As used in this Section, "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock or similar locking device.
(3) "Handgun." As used in this Section, "handgun" means any pistol, revolver, or other firearm that is capable of being concealed upon the person, designed to be used as a weapon, capable of expelling a projectile by the force of any explosion or other form of combustion, and has a barrel less than 16 inches in length.
(4) "Trigger lock." As used in this Section, a "trigger lock" means a trigger lock that is listed in the California Department of Justice's list of approved firearms safety devices and that is identified as appropriate for that handgun by reference to either the manufacturer and model of the handgun or to the physical characteristics of the handgun that match those listed on the roster for use with the device under Penal Code Section 12088(d).
(c) Exceptions. This Section shall not apply in the following circumstances:
(1) The handgun is carried on the person of an individual over the age of 18.
(2) The handgun is under the control of a person who is a peace officer under Penal Code Section 830.



So the only exceptions are when someone over 18 is carrying the firearm, or when a police officers has the firearm "under their control" (whatever that means). In any other case, regardless of whether or not you're inside your home, you must store your firearm in a locked container or have a trigger lock on it.

M. D. Van Norman
12-14-2014, 11:17 AM
But the prohibition doesn’t apply to long guns? Another step around Heller …

Oger2
12-14-2014, 11:21 AM
Yes, but in that instance, the gun must be on your person, right?

No, but the minute you step out, you are in violation.

ArchangelZeroSix
12-14-2014, 11:27 AM
No, but the minute you step out, you are in violation.

I don't think that's correct. I looked up the ordinance (KC posted it also) and it has only the exceptions of 'being carried on the person' and for LEO's.

Nothing as far as that it can be simply unlocked while the owner or resident is home.

FABIO GETS GOOSED!!!
12-14-2014, 11:35 AM
KC did another great job breaking that down.

No doubt. Especially the part where he says you don't store something that needs to be accessed readily. Think about that one for a second lol. Is that also your position?

Maybe you don't want to bring up what Heller's counsel argued for the third (?) time then.

Help me, you lost me here.

I didn't think it necessary since I thought my post explained it quite well, but I'll humor you. A nightstand table drawer (no lock). That's one of many.

A handgun in a drawer is more readily accessible than a long gun not in a drawer, I'll give you that. lol. That's why handguns are preferred, so you can stick them in a drawer for ready accessibility. Can't do that with a long gun, you have to leave those outside the readily accessible drawer.

ArchangelZeroSix
12-14-2014, 12:03 PM
No doubt. Especially the part where he says you don't store something that needs to be accessed readily. Think about that one for a second lol. Is that also your position?

My comment re KC and his breakdown was in regards to his hypothetical on what Heller's counsel could have meant. i.e., its irrelevant to what we are discussing. We aren't talking about a situation where you won't be around. We're talking about what happens when you're sleeping at 2AM, and someone breaks into your residence. Carefully read KC's point there.

Help me, you lost me here.

You've staked part of your argument 2-3 times on the fact that Heller's counsel mentioned in orals, that 'safe storage, for example, in a safe' was ok. And you seem to conflate that with SF's ordinance being constitutional. You then retorted 'That's what I said, just ignore any "safe keeping" connotation! Because the SC would never consider that definition of "store" and they don't really listen to oral arguments anyway.' Which to me also says 'its irrelevant'. So if it is, then there's no need to bring it up anymore.

kcbrown
12-14-2014, 12:03 PM
No doubt. Especially the part where he says you don't store something that needs to be accessed readily.


I didn't say you don't store something that needs to be accessed readily, I said you don't store it when it needs to be accessed readily.

You do see the difference between those two things, yes?

SimpleCountryActuary
12-14-2014, 2:38 PM
"Immediate self-defense" isn't having an unlocked, assembled handgun ... in a holster down around your ankles while you're taking a crap.

But that's when I really need it! And if it was good enough for Elvis, it's good enough for me.

Best!

FABIO GETS GOOSED!!!
12-14-2014, 2:38 PM
I didn't say you don't store something that needs to be accessed readily, I said you don't store it when it needs to be accessed readily.

You do see the difference between those two things, yes?

What I see in your "great job breaking that down" post is the removal of the handgun from a condition of storage and the placement of the firearm in a condition of non-storage so that if you need it at 2 am, it can be "accessed readily." I am seeing the same thing here:

We aren't talking about a situation where you won't be around. We're talking about what happens when you're sleeping at 2AM, and someone breaks into your residence. Carefully read KC's point there.

Like you, he isn't talking about getting the gun out of the safe at 2 am, it's already out of the safe ready to go. Or maybe I'm missing something again, tell me if I am lol.

IVC
12-14-2014, 2:47 PM
Especially the part where he says you don't store something that needs to be accessed readily. Think about that one for a second lol. Is that also your position?

Some storage allows for "immediate self defense" and some doesn't. Some renders a firearm "readily available" and some doesn't. Allowing a "self defense exemption" doesn't change the properties of the storage with respect to "immediate self defense" and "readily available."

Heller addresses this functional requirement of the storage and S.F. ordinance violates it.

kcbrown
12-14-2014, 3:13 PM
What I see in your "great job breaking that down" post is the removal of the handgun from a condition of storage and the placement of the firearm in a condition of non-storage so that if you need it at 2 am, it can be "accessed readily." I am seeing the same thing here:


Yes. The point is that storage of the firearm in the safe or locked container, or placing a trigger lock on it, removes or reduces its readiness for self-defense, but it's precisely the readiness of the firearm that's required for it to be useful for immediate self-defense. A firearm that is not ready in terms of both configuration and location for immediate self-defense is a firearm that cannot be used when the need for self-defense is sufficiently immediate, period. What, do you think the firearm will just magically appear in your hand if you just wish for it hard enough?

The ordinance demands that you store your firearm in a locked container (or place a trigger lock on it), and therefore remove its ready accessibility for immediate self-defense, regardless of your circumstances. The only exceptions are when you are actually carrying the firearm (something which in California is not always lawful to do even when you're on your own property), or if you are a police officer and the firearm is under your "control".

It is the very fact that the ordinance forcibly reduces your chance of surviving a self-defense encounter, by forcing you to make your firearm less accessible in situations where you otherwise would choose not to, that makes it contrary to the core purpose of the 2nd Amendment, and that is what makes it Unconstitutional.


Again, the logic you employ here would make Constitutional a law which demands that you always keep the firearm in a safe with a combination known only to the police, and which requires you to call the police to get the code for the safe at the point in time you need it for self-defense. It is a nonsensical argument in the context of the reasoning behind Heller.

You appear to be limiting Heller to its holding. For what other rights is Supreme Court jurisprudence read in that way?

FABIO GETS GOOSED!!!
12-14-2014, 3:25 PM
My comment re KC and his breakdown was in regards to his hypothetical on what Heller's counsel could have meant. i.e., its irrelevant to what we are discussing.

Heller's counsel's comments re: safe storage and their immediate segue to comments re: the enumerated exceptions to DC's trigger-lock law (i.e., recreational shooting, place of business), could not be any more relevant. Whatever counsel could have meant the supreme court was very clear about how it understood the legal challenge being presented to it.

kcbrown
12-14-2014, 3:27 PM
Heller's counsel's comments re: safe storage and their immediate segue to comments re: the enumerated exceptions to DC's trigger-lock law (i.e., recreational shooting, place of business), could not be any more relevant. Whatever counsel could have meant the supreme court was very clear about how it understood the legal challenge being presented to it.

Yep, no question about that. Counsel may well have gotten that wrong, depending on which interpretation of counsel's comments you are going with.

Again, assuming your interpretation is the correct one, do you believe that to be dispositive of the case?

Oger2
12-14-2014, 3:27 PM
I don't think that's correct. I looked up the ordinance (KC posted it also) and it has only the exceptions of 'being carried on the person' and for LEO's.

Nothing as far as that it can be simply unlocked while the owner or resident is home.

Since when is something in your house especially while you're there NOT in your possession?

kcbrown
12-14-2014, 3:32 PM
Since when is something in your house especially while you're there NOT in your possession?

Please read the ordinance. The exception for "ordinary" people is explicitly and only for when one is carrying the firearm on one's person.

ArchangelZeroSix
12-14-2014, 3:34 PM
Heller's counsel's comments re: safe storage and their immediate segue to comments re: the enumerated exceptions to DC's trigger-lock law (i.e., recreational shooting, place of business), could not be any more relevant. Whatever counsel could have meant the supreme court was very clear about how it understood the legal challenge being presented to it.

But that isn't what we're discussing here are we? You're grasping at straws. I didn't say that Heller's counsel arguing D.C.'s policy was 'irrelevant'. I only narrowed it the 'safe storage, for example, in a safe' part.

ArchangelZeroSix
12-14-2014, 3:39 PM
Since when is something in your house especially while you're there NOT in your possession?

Read the ordinance (S.F. Police Code §4512) for some context:

(c) Exceptions. This Section shall not apply in the following circumstances:

(1) The handgun is carried on the person of an individual over the age of 18.
(2) The handgun is under the control of a person who is a peace officer under Penal Code Section 830.

If the gun is laying in an unlocked drawer, even while you are at home, it would still be a violation of the ordinance. The only 'possession' allowed is 'on the person'.

Oger2
12-14-2014, 3:53 PM
Read the ordinance (S.F. Police Code §4512) for some context:

(c) Exceptions. This Section shall not apply in the following circumstances:

(1) The handgun is carried on the person of an individual over the age of 18.
(2) The handgun is under the control of a person who is a peace officer under Penal Code Section 830.

If the gun is laying in an unlocked drawer, even while you are at home, it would still be a violation of the ordinance. The only 'possession' allowed is 'on the person'.

So the rules of evidence are now narrowed for the definition of "in possession". Cool!

speedrrracer
12-14-2014, 3:54 PM
Can anyone come up with a theory that's substantively DIFFERENT than KC's if SCOTUS denies cert?

Yes of course, but perhaps it's not as good a theory as kc's.


So, would any of the longer term people care to say if cert is DENIED, how KC is still wrong?

Since you're so persistent...sure. The "pro-2A Justices saving the 2A from the majority anti-2A Justices" theory would still hold, and also predicts the denial of cert here, and in all other cases, until such time as the composition of the Court changes in favor of the 2A (which may not happen in our lifetimes).

In case you're not familiar, it the theory which states that the reason SCOTUS is not granting cert to any 2A cases is because many of the Justices who voted for Heller have found out that the 5th Heller vote (or perhaps the 4th and 5th, or...etc) has swung the other way...perhaps Sandy Hook or some other twist has changed that Justice's opinion about the 2A. Perhaps one or more of the Heller 5 expressed regret to the others in the Heller 5 about their pro-Heller vote, etc, etc.

So somehow, the remaining pro-Heller Justices know that if a 2A issue comes to SCOTUS, it will lose, and America will be stuck with that unfortunate result perhaps forever. In order to prevent this, they are trying to ensure that no 2A issue is granted cert, by voting to deny cert to any 2A issue.

ArchangelZeroSix
12-14-2014, 3:59 PM
So the rules of evidence are now narrowed for the definition of "in possession". Cool!

Go take it up with SF, not me.

kcbrown
12-14-2014, 4:05 PM
So the rules of evidence are now narrowed for the definition of "in possession". Cool!

What has the ordinance to do with the rules of evidence? The plain fact of the matter is that if someone has an unsecured firearm at his residence in SF while he is there, and the police discover that, they can charge him with, and convict him of, a violation of this ordinance.

Why do you seem to be obsessed with the term "possession" here when "possession" is not the term used in the ordinance?

kcbrown
12-14-2014, 4:13 PM
Yes of course, but perhaps it's not as good a theory as kc's.




Since you're so persistent...sure. The "pro-2A Justices saving the 2A from the majority anti-2A Justices" theory would still hold, and also predicts the denial of cert here, and in all other cases, until such time as the composition of the Court changes in favor of the 2A (which may not happen in our lifetimes).


That's not very different from mine, actually. The reasoning behind my hypothesis is that Sandy Hook changed the mind of at least one of the justices (my guess on that is Kennedy) as regards support of the right. Which is to say, whereas before we had a majority in support of the right, that is no longer the case. The fact that the Court has not taken a case for the purpose of squashing the right suggests that the justice in question may have become unpredictable as a result, and thus neither side is willing to take a 2A case.

Either way, it would mean that we are effectively done as regards securing 2nd Amendment protection of RKBA through litigation, as the Supreme Court is the only entity capable of correcting the lower courts. The only way that could change would be for the composition of the Court to change in our favor, something I believe we will never see.



So somehow, the remaining pro-Heller Justices know that if a 2A issue comes to SCOTUS, it will lose, and America will be stuck with that unfortunate result perhaps forever. In order to prevent this, they are trying to ensure that no 2A issue is granted cert, by voting to deny cert to any 2A issue.But somehow, the anti-RKBA justices would have to be in the dark about this, else, they would have taken a case for the purpose of squashing the right.

Your hypothesis here is a very definite possibility, but hinges on the anti-RKBA faction not knowing about the turncoat. And really, if the turncoat really had done an about-face, why wouldn't he inform the anti-RKBA justices about it so that he could cement his (new) views?

The only two explanations I can come up with that do not have that kind of flaw are:



The justice in question is now uncertain about the right, and both sides know it, and neither side is willing to take a chance on being sided against.
The antis on the court are afraid of explicitly squashing the right due to political backlash in the form of an Article V convention or something equally severe.

I know of no way to distinguish between those two explanations via evidence.

OleCuss
12-14-2014, 4:25 PM
.
.
.

The justice in question is now uncertain about the right, and both sides know it, and neither side is willing to take a chance on being sided against.
The antis on the court are afraid of explicitly squashing the right due to political backlash in the form of an Article V convention or something equally severe.

I know of no way to distinguish between those two explanations via evidence.

I still think there is a third possibility worth considering:

Heller and McDonald would not be reversed, but the ruling is considered likely to be too weak to satisfy those who are somewhat conservative and too strong to satisfy those who are fascist.

So neither side goes for cert until their hand is strengthened or a particular case arises which will serve to either significantly strengthen or to significantly weaken the RKBA.

The panel ruling of Peruta just may be sufficiently strong to satisfy the conservatives - and may be too outrageous for the fascists to tolerate and just might get cert if the panel ruling is overturned. I do not know the odds of the panel ruling on Peruta being overturned by an en banc panel.


But let's face it, it could be the cert is not granted for a totally different than anything we've thought of.

FABIO GETS GOOSED!!!
12-14-2014, 4:29 PM
Yes. The point is that storage of the firearm in the safe or locked container, or placing a trigger lock on it, removes or reduces its readiness for self-defense, but it's precisely the readiness of the firearm that's required for it to be useful for immediate self-defense.

Once the firearm is removed from a condition of storage and placed in a condition of non-storage so it is "readily accessible" if needed at 2 am, the phrase "t is easier to store in a location that is readily accessible in an emergency" has no application whatsoever. The handgun isn't being stored in a location that is readily accessible in an emergency -- it isn't being "stored" at all. So that particular phrase isn't very helpful if you want to argue that "Heller says I can have a readily accessible firearm" and at the same time that "readily accessible" does not and cannot mean "locked in a safe" or "trigger-locked." The supreme court is saying "readily accessible" [i]and stored, you are saying something else.

FABIO GETS GOOSED!!!
12-14-2014, 4:49 PM
Yep, no question about that. Counsel may well have gotten that wrong, depending on which interpretation of counsel's comments you are going with.

Again, assuming your interpretation is the correct one, do you believe that to be dispositive of the case?

Of course not. I've said I like this case, it's an incremental step away from Heller (from is a trigger lock rule with no self-defense exception (DC) constitutional, to is a trigger lock rule with a self-defense exception (SF) constitutional), with good burden arguments. If cert is notgranted, I would read that as trigger lock rules with self-defense exceptions (that don't swallow the rule lol) are ok.

capoward
12-14-2014, 4:49 PM
S.F. Police Code §4512:
(c) Exceptions. This Section shall not apply in the following circumstances:
(1) The handgun is carried on the person of an individual over the age of 18.
(2) The handgun is under the control of a person who is a peace officer under Penal Code Section 830.If the gun is laying in an unlocked drawer, while you are at home, it would not be a violation of the ordinance.

I particularly like how the LEO is treated vs the law abiding citizen.

FABIO GETS GOOSED!!!
12-14-2014, 5:45 PM
But that isn't what we're discussing here are we?

We're not discussing safe storage laws and self-defense exceptions? Could have fooled me.

kcbrown
12-14-2014, 5:52 PM
Once the firearm is removed from a condition of storage and placed in a condition of non-storage so it is "readily accessible" if needed at 2 am, the phrase "[i]t is easier to store in a location that is readily accessible in an emergency" has no application whatsoever. The handgun isn't being stored in a location that is readily accessible in an emergency -- it isn't being "stored" at all. So that particular phrase isn't very helpful if you want to argue that "Heller says I can have a readily accessible firearm" and at the same time that "readily accessible" does not and cannot mean "locked in a safe" or "trigger-locked." The supreme court is saying "readily accessible" and stored, you are saying something else.

Well, of course, that presumes that by "store", the Supreme Court didn't simply mean "place". But as we're supposed to use the common dictionary meanings of the terms, you may have a point. However, the top-most definition (http://www.merriam-webster.com/dictionary/store) of "store" is "to put (something that is not being used) in a place where it is available, where it can be kept safely, etc.", so simply placing the item in a location where it is available easily qualifies. Why do we believe the Court must have explicitly meant placement in a container of some kind? Additionally, can one not "store" the firearm in some place like, say, the top of the dresser one is sleeping next to?


The real question as I see it is this: is the Supreme Court saying "readily accessible" and "stored in such a way that the storage does not necessarily increase the time required to retrieve the firearm", or it is saying "readily accessible" and "stored in some manner such that the time for retrieval may be artificially increased"? The former reading is the only one that appears to be consistent with both the words and the underlying justification in Heller. The latter reading means the "call the police to get your safe's combination" law would be Constitutional under Heller. And given all the emphasis on self-defense in Heller, it seems a bit of a stretch to insist that the latter meaning is the correct one.


Oddly enough, this conversation dovetails nicely into one about California's anti-carry law. Why? Because that law has a "self-defense" exception which says you can possess a firearm during a self-defense encounter, at least until the police arrive. If the logic holds that the disassembly/trigger lock requirement in DC is Unconstitutional only because it did not have a self-defense exception, then it follows that California's prohibition on carry must be Constitutional because it does have such an exception. Of course, such "exceptions" are worthless, because they amount to "the gun magically appears in your hand".

speedrrracer
12-14-2014, 6:16 PM
But somehow, the anti-RKBA justices would have to be in the dark about this, else, they would have taken a case for the purpose of squashing the right.

No, there are many possible twists. The various anti Justices might be anti enough to vote against anything put in their laps, but not necessarily sufficiently antipathetic towards the 2A enough to actively go out and pull something into their laps. You mentioned backlash, or who knows what.

Your hypothesis here is a very definite possibility, but hinges on the anti-RKBA faction not knowing about the turncoat. And really, if the turncoat really had done an about-face, why wouldn't he inform the anti-RKBA justices about it so that he could cement his (new) views?

Again, too many possibilities to list. Lack of sufficient antipathy towards the 2A as I already mentioned, you mentioned the possibility he's turned but has only mentioned it to the pro-2A side, or perhaps there is some political goings-on, vote bargaining, as in 'you don't do X and I won't do Y", etc, etc. Remember, these guys get to determine everything, so while we worry about 2A factions, there are 4A cases and 1A cases and abortion and homosexuality and everything else under the sun, because the only thing that seems clear is that everyone in power seems to believe there is nothing outside the scope of their power, so there's plenty of room for negotiation that we'll never know about.

Ultimately, you're right, there's simply no way to distinguish any of this at this time, it's just a (2nd class, imo) theory. Perhaps fitting, deuces are wild, a 2nd class theory to go with the 2A, which is being treated as a 2nd class right :shrug:

FABIO GETS GOOSED!!!
12-14-2014, 6:22 PM
Well, of course, that presumes that by "store", the Supreme Court didn't simply mean "place".

It's ok to backpedal from your earlier notion that "storage" is inimical to "readily accessible" lol.

Additionally, can one not "store" the firearm in some place like, say, the top of the dresser one is sleeping next to?

I don't see why not, if "store" means "place somewhere." Much easier to "store" a handgun on top of the dresser than it is to "store" a long gun on top of the dresser, right? You could lean a long gun against the dresser, or put it on the floor right next to the bed, but if you want to have a firearm in a really readily accessible place like on top of the dresser (or even better, inside a dresser drawer), a handgun is the way to go!

kcbrown
12-14-2014, 7:26 PM
It's ok to backpedal from your earlier notion that "storage" is inimical to "readily accessible" lol.


Yes, well, consider the earlier notion an "in the alternative" argument. :D



I don't see why not, if "store" means "place somewhere." Much easier to "store" a handgun on top of the dresser than it is to "store" a long gun on top of the dresser, right? You could lean a long gun against the dresser, or put it on the floor right next to the bed, but if you want to have a firearm in a really readily accessible place like on top of the dresser (or even better, inside a dresser drawer), a handgun is the way to go!Well, supposedly the Supreme Court had some reason for calling out handguns as easier to store in a readily accessible location than long guns. And they weren't talking about the ease of acquiring a safe or other locking container, but rather the act of storage itself. So what, then, did the Court really mean by it? The thought that immediately came to my mind when they said that was placement in a dresser drawer, or under the pillow, or in the couch, or something of that sort. But all of those things are enjoined by the SF ordinance when a trigger lock isn't used, and the trigger lock has the same problem of increasing the threshold of immediacy, below which the firearm is of no use in a self-defense situation, that the disassembly requirement would have had the DC law included a self-defense exception, and which locking containers also have.

Either way, Heller was discussing in that section how and why handguns are preferred by the citizenry, and it seems logical that one would have to look at what the citizenry does with them to see what sort of justification the Court had in mind. Do we know what data the Court was looking at when it was talking about this topic?


There is a reason the Supreme Court said "immediate self-defense", and not merely "self-defense". What do you suppose that reason is, if not to make it clear that laws which force the firearm to be unavailable longer than it would otherwise be in the absence of those laws are Unconstitutional because they violate the right to self-defense in at least those circumstances where one doesn't have the additional time imposed? Why do you suppose the Supreme Court concerned itself with ready accessibility, if not for that reason? Why do you suppose the Court defined "bear" as including the purpose of being "armed and ready" for confrontation? There is a consistent theme which runs through Heller, and that theme is violated by the SF ordinance.

I'm glad you think this to be a good case. I agree that it is, and really hope cert is granted to it. I will be reading a lot more into its denial than you will, however (I do find it interesting that you'll be reading anything at all into its denial. I guess you're not one of those people who thinks that cert denials carry no meaning whatsoever -- another thing I agree with you on. Whatever is this world coming to? :D ).

FABIO GETS GOOSED!!!
12-14-2014, 9:32 PM
Either way, Heller was discussing in that section how and why handguns are preferred by the citizenry, and it seems logical that one would have to look at what the citizenry does with them to see what sort of justification the Court had in mind. Do we know what data the Court was looking at when it was talking about this topic?

I don't know if it was looking at any data at all. It occurred to me there might something buried somewhere in the couple dozen amicus briefs but I don't have the motivation to scour through all of them lol. What I do know is that when it was explaining why handguns are preferred by the citizenry, it was not announcing a legal standard by which safe storage laws are evaluated, nor was it explaining why it was going to knock down the trigger lock law later in the opinion. When it does knock the trigger lock law down, it says exactly why. So, it might not be the best idea to elevate "readily accessible" into something it may not be. I don't think the court in that phrase is using "store" in the sense of "place somewhere" but instead "keep safely." If the criteria for preferring a handgun over a long gun is "ready accessibility" you can place a long gun in locations that are no more or less readily accessible than handguns, a handgun on a dresser has no advantage in terms of ready accessibility or the ease with which the firearm is placed there compared to a long gun on the floor next to the bed. If the court is thinking about safekeeping in portable handgun lockboxes (which obviously I can't say with certainty it is), the phrase becomes rather problematic for obvious reasons.

There is a reason the Supreme Court said "immediate self-defense", and not merely "self-defense".

I don't have anything to add to what I've already said.

I'm glad you think this to be a good case. I agree that it is, and really hope cert is granted to it.

If cert is granted I think it will be a win. I'm leaning towards cert not being granted though.

speedrrracer
12-15-2014, 7:33 AM
I'm leaning towards cert not being granted though.

If you don't mind, what are your reasons for leaning that way?

kcbrown
12-15-2014, 7:46 AM
I don't have anything to add to what I've already said.


Well, the words of the holding versus the basis for overturning the disassembly/trigger lock requirement pose something of a problem for you.

Look, I completely agree with you that the basis on which that law was overturned was that it lacked a self-defense exception. How could I not? The words to that effect are there plain as day. The problem for you is that if one insists that such basis is the only basis that matters, then it renders the term "immediate" in the holding effectless. There is absolutely no difference between the Court saying "purpose of self-defense" versus "purpose of immediate self-defense" in the holding as regards the basis on which the DC law was struck, because that basis was that any self-defense with a handgun, "immediate" or not, was enjoined by the law.

Why, then, did the court specifically say "immediate" in the holding? Your construction gives that term no meaning over and above its absence, strips it of effect.

Again, there is a consistent theme running through Heller, and it is the recognition that self-defense has an urgency, a time-critical nature that cannot be imposed upon if it is to succeed. The words of the holding go beyond the reason the Court overturned the law. They do not go beyond the theme that runs through the decision. They are derived in part from that theme.

That is what the petition recognizes. Is that part of the petition poorly worded? Perhaps. But given the holding itself, as well as the theme of Heller, it is hopefully enough. And if it is not, there will be opportunity for clarification, yes?



If cert is granted I think it will be a win. I'm leaning towards cert not being granted though.I agree with this as well (truly, the world is about to explode. :D ), though for different reasons.

thorium
12-15-2014, 7:50 AM
If you don't mind, what are your reasons for leaning that way?

If Cert is not granted then Michel and other 2A attorneys around the country will have to change their litigation strategy dramatically.

Everyone is trying to figure out how to get these post-Heller cases to be granted Cert. This case seems to be the narrowest attempt yet (that I'm aware of) -- "operable" handgun -- to get SCOTUS to enforce Heller.

Where would 2A counsel even go next? What the hell would SCOTUS take?

Drivedabizness
12-15-2014, 7:57 AM
J. H. Chr*st - another thread gone completely off the rails...

M. D. Van Norman
12-15-2014, 10:57 AM
On the contrary, this discussion has been quite illuminating. The key differences between the San Francisco ordinance and the Heller decision have been shown, which leaves us with an interesting Constitutional question—which we know won’t be answered, but nevertheless …

Imagine the hurdles placed by the ordinance. You want a handgun for self-defense? Great! Carry it on your person at all times (but only at home). Going to sleep? Wear the gun to bed or put it in the safe. Taking a shower or attending to other personal hygiene matters? Slap a trigger lock on. Having some romantic time with your same-sex spouse? Lock it in the closet … or something. :p

FABIO GETS GOOSED!!!
12-15-2014, 1:41 PM
If you don't mind, what are your reasons for leaning that way?

Sure. The more I look at it the more it appears the SC is ok with safe storage laws that have a self-defense exception, which I will define loosely "you can unlock your gun if there is an intruder at 2 am" and in contradistinction to the rule-swallowing "you can keep your gun unlocked 24/7 in a state of general readiness just in case something happens." The former is what the SC is talking about in both the "basis" (not my word lol) and the holding, which are in complete synch. I think the phrases "It is easier to store in a location that is readily accessible in an emergency" and "rendering any lawful firearm in the home operable for the purpose of immediate self-defense" cut the other way from what has been advocated by others in this thread. The SC in the first phrase doesn't see any conflict between "store" and "readily accessible"; I think they are referring, not in the least bit disapprovingly, to portable handgun lockboxes, which provide safe storage (preventing access by unauthorized persons) while allowing the firearm to be "readily accessible in an emergency." The phrase assumes unlocking is required -- in a state of emergency and not before (a la removing the firearm from storage and placing it in a condition of non-storage before you go to sleep for the night) -- and therefore cannot be interpreted as mandating "immediate" access without delay no matter how slight to an unlocked and assembled firearm sitting within reach on your dresser.* The supposed "time-critical nature that cannot be imposed upon if it is to succeed" theme is exceedingly difficult to locate in the opinion, seeing as the only imposition under consideration was a total prohibition lol. In the second sentence "immediate self-defense" is "only when necessary" self-defense, the same thing that was discussed a few pages earlier when the court explained why the trigger-lock law was unconstitutional; no descriptor was necessary as the cites to DC's brief (specifically the "sudden intruder" and "rapist" illustrations of the self-defense exception) make clear exactly why the court was talking about. Obviously I disagree that the SC would explain why the DC trigger lock was unconstitutional, then signal a more expansive holding -- one which mandates a rule-swallowing 24/7 exception -- with zero discussion. If that's what they were doing they would have just said it and not wasted any time deciding, does the DC trigger lock have a self-defense exception or not? This suggests to me the SC will tolerate safe storage laws with self-defense exceptions, i.e., ok to unlock your gun at 2am to defend your self against an intruder. The SF law does this.

* As a side note, you can find multiple published opinions interpreting "readily accessible" in a variety of contexts, where contraband was ruled to be "readily accessible" notwithstanding that it was in a locked container, locked room, locked dwelling, etc. "Readily accessible" is not synonymous with "instantly available with no delays or unlocking required."

IVC
12-15-2014, 2:34 PM
I think they are referring, not in the least bit disapprovingly, to portable handgun lockboxes, which provide safe storage (preventing access by unauthorized persons) while allowing the firearm to be "readily accessible in an emergency." The phrase assumes unlocking is required -- in a state of emergency and not before (a la removing the firearm from storage and placing it in a condition of non-storage before you go to sleep for the night) -- and therefore cannot be interpreted as mandating "immediate" access without delay no matter how slight to an unlocked and assembled firearm sitting within reach on your dresser.*

The question still remains: "What does immediate self defense entail?"

We can compare "safe storage" requirement to "holstered handgun" and discuss that both serve the same purpose, both require some action before using a firearm and the latter is the norm, rather than exception, i.e., one cannot carry a firearm in public in one's hand and ready to shoot. However, *some* court will have to determine at what point the "immediate" aspect becomes violated.

Without such a definition, the legislature can keep pushing the limit on how complicated a retaining mechanism can be and how long it can take to disengage it. Not unlike the Brady's interpretation that "Heller affirmed gun control."

There are two problems with the lock-boxes: (1) if they are mechanical, they take too long to open (combination lock; ) alternatively, it's not clear whether an eager DA would try to prosecute someone for leaving a key in the lock, and (2) if they are electrical, there is a potential for failure at the critical moment.

This suggests to me the SC will tolerate safe storage laws with self-defense exceptions, i.e., ok to unlock your gun at 2am to defend your self against an intruder. The SF law does this.

It not at all clear why you keep implying that a "self defense exception" has anything to do with the limitations of the retaining mechanism. It's only a necessary condition, but not sufficient condition for "immediate self defense at home."

FABIO GETS GOOSED!!!
12-15-2014, 2:56 PM
However, *some* court will have to determine at what point the "immediate" aspect becomes violated.

You're interpreting "immediate" as having something to do with how long it takes to unlock a safe, disengage a retaining mechanism, etc. I'm not.

IVC
12-15-2014, 3:08 PM
You're interpreting "immediate" as having something to do with how long it takes to unlock a safe, disengage a retaining mechanism, etc. I'm not.

Common definition deals with the amount of time. For an alternate definition to apply, the court would have to suggest that they were using an alternate definition of "immediate" in their ruling.

Sure there can be a court interpretation of a word, e.g., the "voluntary" when applied to taxes, it's just that I haven't seen anything of the kind when talking about "immediate" in Heller.

FABIO GETS GOOSED!!!
12-15-2014, 3:20 PM
Common definition deals with the amount of time.

Read the entire sentence I wrote.

IVC
12-15-2014, 3:33 PM
"How long" == "amount of time."

Am I missing something?

wolfwood
12-15-2014, 3:34 PM
So both of these cases have upheld safe storage requirements. Anyone know whether a writ was file in these cases?


In
Tessler v. City of New York
, 952 N.Y.S.2d 703 (2012), the
petitioner sought a declarator
y judgment that section 10-312 was
unconstitutional under
McDonald
.
Id
. at 715. The court, however,
noted the distinctions between section 10-312 and the laws addressed in
Heller
and
McDonald
. In particular, the court found that unlike the
ordinances at issue in those cases,
the New York City safe storage
requirement “do[es] not dictate ... that
handguns in the home be ‘kept
inoperable at all times’ so ‘as to re
nder them wholly useless,’ and make
‘it impossible for citizens to use them
for the core lawful purpose of self-
defense in the home.’”
Id
. at 715–16,
quoting
Heller
. 554 U.S. at 629,
630. Rather, because the law did
not require safe storage when a
firearm was within an owner’s possessi
on, it did not endanger the user’s
right to self-defense.
See Tessler,
952 N.Y.S. 2d at 716 (holding that
“petitioner failed to show how a safe
ty locking device had prevented his
handguns from being readily ... op
erable for his immediate use”).


Following
McDonald
, the court again addressed the
constitutionality of the safe storage statute in
Commonwealth v.
McGowan
, --- N.E.2d ----, 464 Mass. 232,
(2013). It concluded that
because safe storage laws, under
Heller
, “fall[ ] outside the scope of the
Second Amendment,” Section 131L
was “presumptively lawful” and
thus “subject only to rational basis
analysis, which it easily survives.”
Id
. at 244. The court also noted, on
ce again, that the safe storage law
was “consistent with the
right of self-defense in the home because it
does not interfere with the ability of a licensed gun owner to carry or
keep a loaded firearm under his imme
diate control for self-defense.”
Id.
at 243. And the court once again re
jected the argument that “the brief
period of delay needed to unlock a
secure storage container or trigger
lock” rendered the statute unconstitutional.
Id
. at 243–44. Rather, the
court reasoned that “[a]ny law regula
ting the storage of firearms will
delay by some degree the ability of a
firearm owner to retrieve and fire
the firearm in self defense,” and that
“[i]f such a brief period of delay
were sufficient to render the law
unconstitutional, the Supreme Court
in
Heller
would not have declared that
its analysis did not suggest the
invalidity of firearm storage laws.”
Id
.
1

lowimpactuser
12-15-2014, 3:40 PM
J. H. Chr*st - another thread gone completely off the rails...

What the he1l is that supposed to mean? This is what the litigation forum is FOR- discussion of litigation, theories, probable outcomes, etc.

If you want a clean thread that only has updates on the case, librarian has those threads locked and updates them.

What is your platonic ideal of a thread here?

moleculo
12-15-2014, 3:45 PM
"How long" == "amount of time."

Am I missing something?

Yeah, the other uses / definitions for the word "immediate", which I believe is the point that FGG is making.

kcbrown
12-15-2014, 3:52 PM
You're interpreting "immediate" as having something to do with how long it takes to unlock a safe, disengage a retaining mechanism, etc. I'm not.

No, he's interpreting "immediate" as the amount of time between the need for self-defense and the time that such defense can be mounted. And such is certainly the most logical use of the term seeing how all but the most insular will recognize that self-defense is a time-critical action.

It just happens to be that the amount of time it takes to unlock a safe, disengage a retaining mechanism, etc., all have an effect on the time interval between when the need for self-defense arises and the time it can be mounted with the firearm in question. But "immediate self-defense" has a very specific common meaning, namely that you need to defend yourself right now, not some arbitrary amount of time in the future.


You've failed to answer my primary criticism of your position, which is that it renders the term "immediate" wholly unnecessary and effectless, because the DC law made handgun use in the home impossible for self-defense purposes no matter how long it might take to get the firearm into a usable state. It is contrary to Supreme Court jurisprudence to read the Constitution in such a way as to render any part of it without effect. Is it permissible to read Supreme Court decisions in that way?


ETA: Are you saying that the Supreme Court is incapable of saying what it means? If it wanted to specify self-defense at some point in the near-future, it could have said "imminent self-defense". But it didn't. It specifically chose the word "immediate" among all the alternative terms available. Why are you insisting here that the Court meant something better suited to a different term?

IVC
12-15-2014, 3:57 PM
Yeah, the other uses / definitions for the word "immediate", which I believe is the point that FGG is making.

Which brings us back to whether Heller stated or implied such an alternate use/definition. If not, the common definition is a natural way to interpret it.

However, on the point of whether SCOTUS will be inclined to take this case, my view is that it will depend on whether the court sees opening a safe as "immediate enough." If so, they'll most likely pass.

Bhart356
12-15-2014, 5:21 PM
Well, we have reviewed a variety of interpretations of the word "immediate". The only interpretation that matters is that of the Supreme Court (though, in the most positive sense, KC and FGG are an entertaining act.)

Michel and Associates have baited the hook. Do the Supremes agree that the 9CA is running roughshod over Heller? The litmus test is whether or not the case is granted Cert. If so, the definition of "immediate" will be apparent.

Californio
12-15-2014, 5:42 PM
I bet they use "The Reasonable Man" in determining "Immediate" and not "Depends on what Is Is" B.S. that the lower Courts like to use when mentally masterbating.

kcbrown
12-15-2014, 5:53 PM
Which brings us back to whether Heller stated or implied such an alternate use/definition. If not, the common definition is a natural way to interpret it.

However, on the point of whether SCOTUS will be inclined to take this case, my view is that it will depend on whether the court sees opening a safe as "immediate enough." If so, they'll most likely pass.

Really?

I thought your operating thesis as regards SCOTUS taking these cases is that it wants the issues to be decided in multiple circuits first.

Which other circuits have decided this particular issue? If none, why is your view of whether or not this case is taken dependent upon the Court's actual views on the matter, as opposed to the amount of developed jurisprudence in the lower courts?

More to the point, why are you willing to conclude something about the court's views on the basis of whether or not they grant cert to this case, but you are adamant about refusing to conclude anything about the court's views on carry on the basis of the fact that they've denied cert to every single carry case that has come before them, particularly when all such cases were essentially the same in terms of the lower court's treatment of the right?


Sorry, I just can't let an inconsistency of this magnitude slip by.

speedrrracer
12-15-2014, 6:01 PM
I think I understand FGG's position better, but I still disagree. So here we see from the holding that trigger locks are completely unconstitutional, no debate, no discussion ;) :

Similarly, the requirement that any lawful firearm in the
home be ... bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional.

However, locked storage is not a trigger lock. Most of us agree they amount to the same thing, a burden on the need for immediate self defense. However, FGG is (I think) saying that SCOTUS didn't make the broader "immediate" as plain as absolutely must be required to prevent this kind of legislation, and so maybe there's room to support the theory that they are constitutional, and he's provided some (imo) thin evidence to support that.

I would say it's sort of like their version of the bullet button....they're twisting the words as hard as they can, they're looking for any sliver of semantics which might provide them shelter, and FGG thinks they might have found it.

As for the storage thing, it's only mentioned in the opinion once:

Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.

So at least some forms of storage laws are OK, but the mention of accidents suggests to me that the laws would only be of the form requiring locked storage when the owner is not home, or not willing to guarantee the security of the gun in other ways (for example, by wearing it on his person about his home). I note that it is not phrased as many others, in the form of "the invalidity of laws regulating the storage of firearms for such purposes as...", which further suggests to me that this valid storage regulation does not have any siblings :)

In the end, I think FGG is right...if cert is granted we're going to win.

lowimpactuser
12-15-2014, 6:04 PM
Well, we have reviewed a variety of interpretations of the word "immediate". The only interpretation that matters is that of the Supreme Court (though, in the most positive sense, KC and FGG are an entertaining act.)

Michel and Associates have baited the hook. Do the Supremes agree that the 9CA is running roughshod over Heller? The litmus test is whether or not the case is granted Cert. If so, the definition of "immediate" will be apparent.

But what if it isn't?

What disturbs me is nearly everyone here is planning for the best, not the worst. KCBrown may not be perfect, but at least he has a plan for the worst, whereas everyone else is like an internet forum of kindergarten teachers ("that's a GREAT coloring job") or proud parents "he'll be first in in class of harvard, win a nobel prize for being a doctor, and then be president"

Everyone here ONLY mentions what something means if it's GOOD. Kcbrown, meanwhile, is the Eeyore of Calguns. But look at how often he's right. Look at how often others are WRONG, then twist things AFTERWARD to try to explain it, but they never even FORESAW defeat.

I'm asking Calguns: what do we do if cert is denied? I mean, do you really want to get caught with your pants down when the worst eventuality is realized?

We really need contingency plans of what our efforts should be if SCOTUS will not rescue us- because they haven't in the recent past, and having only one plan of escape that's proven unreliable is...

For what it's worth, and to be somewhat on topic, I'm not quite so despondent as to believe that SCOTUS will deny cert. I think SCOTUS will allow Cert., and find for the plaintiff and strike down the law, while perhaps clarifying a little more. I still think SCOTUS supports the right, but there's procedural tomfoolery that means that they wanted the right case to make the strongest law; and one that didn't seem like politics. I don't have KCBrown's theory, but I WILL state that if cert. is denied, then yes, all IS lost, KCbrown is right, and we need a new strategy and quick. Which is why everyone's happy smile, Jonestown is just peachy attitudes are unnerving to me.

El Toro
12-15-2014, 6:17 PM
No, he's interpreting "immediate" as the amount of time between the need for self-defense and the time that such defense can be mounted. And such is certainly the most logical use of the term seeing how all but the most insular will recognize that self-defense is a time-critical action.

It just happens to be that the amount of time it takes to unlock a safe, disengage a retaining mechanism, etc., all have an effect on the time interval between when the need for self-defense arises and the time it can be mounted with the firearm in question. But "immediate self-defense" has a very specific common meaning, namely that you need to defend yourself right now, not some arbitrary amount of time in the future.


You've failed to answer my primary criticism of your position, which is that it renders the term "immediate" wholly unnecessary and effectless, because the DC law made handgun use in the home impossible for self-defense purposes no matter how long it might take to get the firearm into a usable state. It is contrary to Supreme Court jurisprudence to read the Constitution in such a way as to render any part of it without effect. Is it permissible to read Supreme Court decisions in that way?


ETA: Are you saying that the Supreme Court is incapable of saying what it means? If it wanted to specify self-defense at some point in the near-future, it could have said "imminent self-defense". But it didn't. It specifically chose the word "immediate" among all the alternative terms available. Why are you insisting here that the Court meant something better suited to a different term?

Apparently both Roberts and Scalia said aloud during orals for Heller that they felt that trigger locks and I assume other not-readily available storage was unreasonable and from that I extrapolate an infringement.

http://www.newsadvance.com/news/state/supreme-court-justices-seem-favorable-to-nd-amendment-gun-right/article_5928e9d1-778e-53c2-823a-e7521eeb4370.html

...In addition to the handgun ban, Washington also has a trigger lock requirement for other guns that raised some concerns Tuesday.

"When you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it and then fire?" Justice Antonin Scalia said.

Roberts, who has two young children, suggested at one point that trigger locks might be reasonable.

"There is always a risk that the children will get up and grab the firearm and use it for some purpose other than what the Second Amendment was designed to protect," he said.

On the other hand, he, too, wondered about the practical effect of removing a lock in an emergency. "So then you turn on the lamp, you pick up your reading glasses," Roberts said to laughter...

FABIO GETS GOOSED!!!
12-15-2014, 6:23 PM
I'm not arguing that immediate means anything other than the dictionary definition lol.

Maestro Pistolero
12-15-2014, 6:27 PM
It means without delay. Therefore how do you account for the delay inherent in unlocking anything?

Oger2
12-15-2014, 6:38 PM
Wrong. Badly wrong. Where in the world are you getting this stuff from??

Here's the ordinance:




So the only exceptions are when someone over 18 is carrying the firearm, or when a police officers has the firearm "under their control" (whatever that means). In any other case, regardless of whether or not you're inside your home, you must store your firearm in a locked container or have a trigger lock on it.

If you can make up any hypothesis you want then so can I. My scientific analysis and calculations brings me to the question i asked. If you can't conceive it then i can't help you. My question and answer was more in depth than your usual calculation. See?

kcbrown
12-15-2014, 6:55 PM
If you can make up any hypothesis you want then so can I. My scientific analysis and calculations brings me to the question i asked.


Analysis on the basis of what facts/evidence? You didn't present any, so there's nothing there for me to verify. I can't reach the conclusions you did because I don't have the set of facts you started with. As such, I had to assume that you were going by what the ordinance actually says, and what you concluded does not follow from the words of the ordinance.

Further, even if you had provided such, it wouldn't be sufficient. You'd have to also show how/why what you were going by somehow supersedes the ordinance, seeing how it is the ordinance that is law in SF.

Oger2
12-15-2014, 7:10 PM
Analysis on the basis of what facts/evidence? You didn't present any, so there's nothing there for me to verify. I can't reach the conclusions you did because I don't have the set of facts you started with. As such, I had to assume that you were going by what the ordinance actually says, and what you concluded does not follow from the words of the ordinance.

Further, even if you had provided such, it wouldn't be sufficient. You'd have to also show how/why what you were going by somehow supersedes the ordinance, seeing how it is the ordinance that is law in SF.

Same goes for your analysis which is NOT based on fact, experience or any real life case experience. In other words, you make up your own analysis as a basis for debate. It's all in your own mind. In fact its kin to believing ones own lies and passing them off as fact.

kcbrown
12-15-2014, 7:43 PM
Same goes for your analysis which is NOT based on fact, experience or any real life case experience. In other words, you make up your own analysis as a basis for debate. It's all in your own mind. In fact its kin to believing ones own lies and passing them off as fact.

Well, I've already provided the facts I'm going by. I'll happily do so again if you need me to. I've shown the methods I'm using, and will do that again as well if needed. Despite that, you claim there's nothing there at all. That somehow, the opposition to the right on the part of (that I've seen so far. If I'm missing some cases in my analysis, I want to know about it so I can correct my view), every single Democrat nominee at the appellate level and above who has issued a decision in a 2A case is not significant. But you have not come up with any non-tautological reason for declaring it so.

If you believe that to not be significant, then I don't know what you would believe to be significant.

Regardless, I have given you the data I'm going by. You have given me squat. And yet, here you are, telling me that your conclusions are just as valid as mine, when you have not even shown the faults in mine, much less provided the fact base upon which you derive your conclusions.


In light of all that, why in the world should I take you seriously? You clearly don't take me seriously. I'm surprised, actually, that you haven't already put me on your ignore list. The only reason I haven't put you on mine is that I prefer to counter bad speech with good speech, to show how and why something is incorrect, rather than to simply ignore bad speech and let incorrect conclusions stand unprotested.

Oger2
12-15-2014, 7:54 PM
Well, I've already provided the facts I'm going by. I'll happily do so again if you need me to. I've shown the methods I'm using, and will do that again as well if needed. Despite that, you claim there's nothing there at all. That somehow, the opposition to the right on the part of (that I've seen so far. If I'm missing some cases in my analysis, I want to know about it so I can correct my view), every single Democrat nominee at the appellate level and above who has issued a decision in a 2A case is not significant. But you have not come up with any non-tautological reason for declaring it so.

If you believe that to not be significant, then I don't know what you would believe to be significant.

Regardless, I have given you the data I'm going by. You have given me squat. And yet, here you are, telling me that your conclusions are just as valid as mine, when you have not even shown the faults in mine, much less provided the fact base upon which you derive your conclusions.


In light of all that, why in the world should I take you seriously? You clearly don't take me seriously. I'm surprised, actually, that you haven't already put me on your ignore list. The only reason I haven't put you on mine is that I prefer to counter bad speech with good speech, to show how and why something is incorrect, rather than to simply ignore bad speech and let incorrect conclusions stand unprotested.

If you only knew.

kcbrown
12-15-2014, 8:15 PM
If you only knew.

Feel free to do better than me. Come up with a predictive hypothesis of your own. Show the data, show how you're arriving at the predictive mechanism. Use the mechanism to make predictions, and see if those predictions prove accurate.

I've done all those things as best as I can. The data is scant of necessity, but it's at least there, whereas before the mechanism I was using was derived through situational logic alone.

Do better than me. Please. I want someone to come up with something better, something more accurate. If you think you can, then please do so.

I'm skeptical that you can. Prove me wrong. I dare you.

FABIO GETS GOOSED!!!
12-15-2014, 8:19 PM
It means without delay. Therefore how do you account for the delay inherent in unlocking anything?

Yes, "without delay." The opinion is consistent in its use of "render" and its variants: rendering inoperable is locking or disassembling, rendering operable is unlocking or assembling. As you point out delay is inherent in the rendering operable of a firearm and as such no rendering operable can ever be "immediate." So what the supreme court is saying, apparently, is "DC's trigger lock law violates the 2A because it prohibits you from completely ignoring the law by never locking your gun," i.e., the 24/7 self-defense exception that swallows the rule. And in the process of arriving there, the supreme court engages in the entirely beside the point determination whether the DC law does or does not allow you to unlock your handgun if there is an intruder at 2am. Either way -- total prohibition or delay --the law is unconstitutional, but what the hell? Let's make that determination for sh*ts and giggles and then tell everybody that that it's the reason why the law is unconstitutional. Then, with no further discussion, let's announce a holding more expansive than our previously stated reason; of course we would never come right out and say, "no trigger lock is constitutional unless it can be completely ignored", that would be too direct. I don't think this is nonsensical at all, noooo! lol.

Oger2
12-15-2014, 8:26 PM
Feel free to do better than me. Come up with a predictive hypothesis of your own. Show the data, show how you're arriving at the predictive mechanism. Use the mechanism to make predictions, and see if those predictions prove accurate.

I've done all those things as best as I can. The data is scant of necessity, but it's at least there, whereas before the mechanism I was using was derived through situational logic alone.

Do better than me. Please. I want someone to come up with something better, something more accurate. If you think you can, then please do so.

I'm skeptical that you can. Prove me wrong. I dare you.

Best you can? Try passing the BAR.

No, its not there! The 2A is technically a new right. (all bets out the window)

I don't need to prove you wrong. You were wrong on Peruta. Which skews your entire hypothesis.

Oger2
12-15-2014, 8:31 PM
KC, you are so set on your doomsday hypothesis that i think i will have to quiz you here.

One person commits homicide with a firearm (38 special, revolver handgun)

One other person commits homicide with a firearm (38 special, revolver handgun)

Both parties defense is "self defense" One defendant lives in Florida and the other in California, Who goes to jail?

Try to base your answer on your prejudice judicial beliefs.

kcbrown
12-15-2014, 8:41 PM
Best you can? Try passing the BAR.


And that has exactly what to do with formulating accurate predictions?



No, its not there! The 2A is technically a new right. (all bets out the window)
You don't say? Well, gee, I never knew (http://www.calguns.net/calgunforum/showpost.php?p=5559689&postcount=45)* that! :facepalm:

That's why data was nonexistent when I started, and it's now scant. But 2A cases have since been decided, so the data is no longer nonexistent.

Why do you think I'm not using non-2A decisions as the foundation of my hypothesis?


* Look at the date on the message in the link to understand the context of my Peruta comment there.



I don't need to prove you wrong. You were wrong on Peruta. Which skews your entire hypothesis.I've tossed out the part of the hypothesis that was responsible for that prediction, replaced it with something more nuanced and, hopefully, more accurate. Nothing more is warranted.

So your position is that if someone is wrong about something, they must therefore be wrong about every related thing in the future, even if they made changes to their predictive methods to account for the failure, is that it?

How magnanimous of you.

kcbrown
12-15-2014, 8:52 PM
KC, you are so set on your doomsday hypothesis that i think i will have to quiz you here.

One person commits homicide with a firearm (38 special, revolver handgun)

One other person commits homicide with a firearm (38 special, revolver handgun)

Both parties defense is "self defense" One defendant lives in Florida and the other in California, Who goes to jail?

Try to base your answer on your prejudice judicial beliefs.

My judicial beliefs do not extend to jury trials, because I haven't any evidence to base them on. I would expect variation in outcome on the basis of location (a jury that is sufficiently anti-RKBA is, I'd expect, more likely to convict than one that is not, all other things being equal), but that is a mere supposition on my part and would require evidence to become more than that.

California's self-defense exemption is actually fairly strong. As that question is a matter determined by a jury and not a judge, I would actually expect the California resident to fare reasonably well (as long as the circumstantial evidence doesn't cast serious doubt on his claim) since the burden of proof falls on the prosecution to show that the self-defense is not justifiable.

I've no idea what Florida's laws are on this, so I don't know where the burden of proof lies there.


Somehow I suspect that's not the answer you were fishing for. You appear to think I'm biased beyond reason. You are badly mistaken.

RobertMW
12-15-2014, 9:37 PM
Yes, "without delay." The opinion is consistent in its use of "render" and its variants: rendering inoperable is locking or disassembling, rendering operable is unlocking or assembling. As you point out delay is inherent in the rendering operable of a firearm and as such no rendering operable can ever be "immediate." So what the supreme court is saying, apparently, is "DC's trigger lock law violates the 2A because it prohibits you from completely ignoring the law by never locking your gun," i.e., the 24/7 self-defense exception that swallows the rule. And in the process of arriving there, the supreme court engages in the entirely beside the point determination whether the DC law does or does not allow you to unlock your handgun if there is an intruder at 2am. Either way -- total prohibition or delay --the law is unconstitutional, but what the hell? Let's make that determination for sh*ts and giggles and then tell everybody that that it's the reason why the law is unconstitutional. Then, with no further discussion, let's announce a holding more expansive than our previously stated reason; of course we would never come right out and say, "no trigger lock is constitutional unless it can be completely ignored", that would be too direct. I don't think this is nonsensical at all, noooo! lol.

You are trying to make diamonds out of dirt here. Your argument is that even having a gun laying on the counter next to you will still incur a delay, thus SCOTUS must have been determining that some delay will always be acceptable when using the term "immediate" in this context. What really happened is that SCOTUS simply said that a government mandated delay, of any length, to retrieve a firearm for the "Immediate" use of self-defense is unconstitutional. The individual judges onions of theater may be that each person should weigh their situation and impose upon THEMSELVES a delay, in the interest of keeping a firearm from easily getting into the hands of someone that should not have it. If a law were put in front of SCOTUS that punished someone, as we do in California, that unsecurly stored a firearm that was accessed by a minor, would most likely be held constitutional, as a child can and should be taught to not touch any firearms without permission, thus still allowing one to store a firearm completely unlocked and ready.

"Immediate" in this case is describing the act of self defense, as well. They do not use it to describe the retrieval of the firearm. However, self-defense being the core of the right, the firearm must be allowed to be stored in the most expedient manner you wish to have it in, in case of immediate self-defense. If they voted that the MEANS of self-defense must be truly immediate, I.E. instantaneous, then the only way you could have a firearm for self-defense would be to have it literally in your hand at the time.

So arguing semantics that the judges opined that there was an arbitrary value of time delay that the government could mandate is BS. They could allow laws that would ENCOURAGE delay, but never mandate it.

IVC
12-16-2014, 12:02 AM
I thought your operating thesis as regards SCOTUS taking these cases is that it wants the issues to be decided in multiple circuits first.

Only on fundamental issues such as "bear" and "arms," given that "keep" has been determined.

This case can be seen as a "technicality," so they might take it based on what has already been said in Heller.

Also, my hypothesis is not a true hypothesis since I am using the actual SCOTUS behavior for the fine tuning (and I admit it openly.) As long as there is a logical explanation and as long as the stakes are really high (the consistency of the judicial system,) I am sceptical of conspiracy theories. Not that the dark side is not seductive, it's just that we're not there yet...

kcbrown
12-16-2014, 12:57 AM
Only on fundamental issues such as "bear" and "arms," given that "keep" has been determined.


Hmmm...okay. Why do you believe SCOTUS would be interested in lower court opinions on those things but not on more "technical" things such as this?



Also, my hypothesis is not a true hypothesis since I am using the actual SCOTUS behavior for the fine tuning (and I admit it openly.)
Fine tuning of an hypothesis using data gathered after predictions have been made and evaluated is a perfectly acceptable thing to do. It's how you zero in on the proper explanation in some cases.



As long as there is a logical explanation and as long as the stakes are really high (the consistency of the judicial system,) I am sceptical of conspiracy theories. Not that the dark side is not seductive, it's just that we're not there yet...You don't know the power of the dark side. :43:

Hehehehe....


I, too, am skeptical of conspiracy theories. But I'm not skeptical (or, at least, not nearly as skeptical) of them when they're the most consistent explanation of the events on hand and make predictions which turn out to be correct. Conspiracy theories, like all such theories, are worthless if they have no predictive power.

We tend to label any explanation of human behavior which violates our sensibilities as a "conspiracy theory", most especially when it makes use of selfish motives. But that's because we expect everyone else to be like we are. That works out just fine when we're dealing with the average person. It does not work out just fine when we're dealing with the average politician or other power-wielding individual. History shows innumerable cases of people in power abusing that power for their own ends. You'd think we, in a country founded upon the fundamental distrust of government, would know better than to actually believe that those in power will act the same as we expect we would under identical circumstances. No, clearly the default explanation for the behavior of those in power must presume selfish, ulterior motives on their part. To insist otherwise is to insist on naivete of massive proportions and on an utter failure to learn the lessons of history.

When the subject involves those who wield power, we ignore "conspiracy theories" at our peril. Fast and Furious, among many other things, should have taught you better by now. Indeed, the behavior of the lower courts should be sufficient as regards this specific subject.


I don't blame you for holding out hope for our judicial system. I, too, hold out that hope. But as I've said countless times before, my hopes and my expectations are cleanly separated, with the latter driven solely by logic and evidence. Yours appear not to be, in that your hopes and your expectations appear to be strikingly similar to each other. Perhaps that's because life has not taught you to cleanly separate them as I do. I hope that's the case, frankly, because it would mean that your life has been very good indeed.

kcbrown
12-16-2014, 1:26 AM
FGG, a simple question for you. Answer it however you like.

In the context of Heller, do you believe the state has the legitimate power to ensure that at least some efforts at self-defense will fail whereas before they would have succeeded, and thus get at least some of those who fail in their efforts killed? If you do, under what conditions do you expect that power to be legitimate?

FABIO GETS GOOSED!!!
12-16-2014, 5:47 AM
Your argument is that even having a gun laying on the counter next to you will still incur a delay, thus SCOTUS must have been determining that some delay will always be acceptable when using the term "immediate" in this context.

No, that's not my argument at all. My argument is the supreme court decided only the legal challenge that was in front of it. (I'm pretty sure there's some "jurisprudential" maxim out there about that lol.) The court framed that challenge as follows:

The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense, reversed, see Parker v. District of Columbia, 478 F. 3d 370, 401 (2007).

Not only did the court frame the challenge, it threw in a footnote to box the plaintiffs in:

2 That construction has not been challenged here.

That sounds to me like the supreme court saying, "this is what we are being asked to decide and that is all that we are going to decide." But who knows, maybe what they're really saying is, "get ready for the surprise ending with an expansive holding that exceeds the scope of what we were asked to decide!" Moving along to the paragraph where the court explains how it is deciding the challenge before it, the court deals with the purported "self-defense" exception:

The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56–57.

From the cite to DC's brief, we know what "self-defense exception" the court is talking about and we know what illustrations of that exception are under consideration by the court, i.e., "sudden intruders" and "rapists." Not surprisingly, and not inconsistently with how it framed the challenge, the court is concerned with whether the DC law lets you unlock your gun to defend yourself against a threat that is happening right now (dare I say "immediate"? lol). There is nothing in the record about an intermediate step where you unlock your handgun and place it in a condition of non-storage readiness on your dresser before you go to sleep; what is being considered is going straight from a locked condition to use against a sudden intruder. There are no facts in the record and no briefing on how long it takes you to unlock your handgun, and no arguments made by any of the parties that the delay inherent in that unlocking violates the second amendment. But of course that doesn't mean that the court won't go ahead and decide that anyway and intentionally fail to discuss it anywhere in the opinion lol.

Finally we arrive at the holding, the "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense" violates the second amendment. If your expectation is that the holding will be consistent with what has come before it, and that it will not go beyond the scope of what the court is being asked to decide, that would be a reasonable expectation would it not? So maybe what the court is describing with "immediate" is the nature of the threat, the same thing that was briefed, argued, and expressly considered previously in the opinion. Maybe all the court is saying is that the DC law violates the 2A because it doesn't let you unlock your handgun to confront a sudden intruder. Then again, this is more likely a bombshell, unexplained, scope-exceeding, not supported by the record (except maybe a joke or two during oral arguments) pronouncement that no delay can ever be constitutional.:rolleyes:

Now, I think there is at least one justice (the author of the opinion) who would rule that way in a case that squarely presents the "how much of a delay is constitutional" question. That, plus the care with which the opinion framed the legal challenge in Heller (we're only deciding what we are being asked to decide), makes me think the court may be receptive to deciding a case such as Jackson which is the very next step from Heller (i.e., it has the "unlock in case of emergency" exception that the DC law did not).

RobertMW
12-16-2014, 7:42 AM
No, that's not my argument at all.

Well, at least I got a thorough explanation of your thinking, thanks.

The part about exceeding the scope of the argument, I am pretty sure that the Supreme court has a little leeway in framing the question that they are answering. They may have just decided to expand on the question a little bit to include, essentially, "at all times." If you are correct that there was never any discussion about that expansive of an order in briefs, orals, or orders until practically the last sentence, I would say that they either let through a minor error (possibly a purposeful one from the true author) that gave more than they wanted, or they decided that the question asked of the court did not come to the final logical conclusion that they expected it to, and thus needed to expand the scope, just a bit, to give the order that they wanted to give.

Maestro Pistolero
12-16-2014, 8:29 AM
You are trying to make diamonds out of dirt here. Your argument is that even having a gun laying on the counter next to you will still incur a delay, thus SCOTUS must have been determining that some delay will always be acceptable when using the term "immediate" in this context. What really happened is that SCOTUS simply said that a government mandated delay, of any length, to retrieve a firearm for the "Immediate" use of self-defense is unconstitutional. The individual judges onions of theater may be that each person should weigh their situation and impose upon THEMSELVES a delay, in the interest of keeping a firearm from easily getting into the hands of someone that should not have it. If a law were put in front of SCOTUS that punished someone, as we do in California, that unsecurly stored a firearm that was accessed by a minor, would most likely be held constitutional, as a child can and should be taught to not touch any firearms without permission, thus still allowing one to store a firearm completely unlocked and ready.

"Immediate" in this case is describing the act of self defense, as well. They do not use it to describe the retrieval of the firearm. However, self-defense being the core of the right, the firearm must be allowed to be stored in the most expedient manner you wish to have it in, in case of immediate self-defense. If they voted that the MEANS of self-defense must be truly immediate, I.E. instantaneous, then the only way you could have a firearm for self-defense would be to have it literally in your hand at the time.

So arguing semantics that the judges opined that there was an arbitrary value of time delay that the government could mandate is BS. They could allow laws that would ENCOURAGE delay, but never mandate it.

Agreed. This is perhaps the least cohesive and indefensible 'argument' I have ever heard from Fabio. There is simply no way to connect the dots as he has attempted to do. This is tantamount to Bill Clinton's " . . . it depends on what your definition of IS is."

Fabio = :beatdeadhorse5:

oh, lest I forget: lol :confused:

FABIO GETS GOOSED!!!
12-16-2014, 8:50 AM
FGG, a simple question for you. Answer it however you like.

In the context of Heller, do you believe the state has the legitimate power to ensure that at least some efforts at self-defense will fail whereas before they would have succeeded, and thus get at least some of those who fail in their efforts killed? If you do, under what conditions do you expect that power to be legitimate?

Do you mean the state requiring handguns to be locked and then unlocked only if there is an emergency, which could get you killed if you can't unlock the gun fast enough? How about the state demanding that handguns be carried concealed? What does it take, 1.5 seconds, 2 seconds, to draw from concealment even under ideal conditions? Add a few more seconds onto that to account for stress/surprise and it could get you killed, but if you had your gun in your hand already you'd have a chance. Or, a law that says you've got to lock up your handgun when you're not in the house. What if you come home and happen to walk in on a burglary in progress and you can't get to and unlock your gun in time to defend yourself? You're dead meat for sure. Are these what you mean by the state having the power to ensure that at least some efforts at self-defense will fail? If so, the state clearly does not have the legitimate power to do that under Heller because the court has already decided that question by using the word "immediate." ;)

FABIO GETS GOOSED!!!
12-16-2014, 8:52 AM
Agreed. This is perhaps the least cohesive and indefensible 'argument' I have ever heard from Fabio.

Except I didn't actually make the argument that was attributed to me. oh yeah lol.

kcbrown
12-16-2014, 9:01 AM
Then again, this is more likely a bombshell, unexplained, scope-exceeding, not supported by the record (except maybe a joke or two during oral arguments) pronouncement that no delay can ever be constitutional.:rolleyes:


You say this with eyes upturned, but the contrary argument, that some delay is Constitutional, yields the result that at least some citizens will die because of that imposed delay.

Again, does the state have the legitimate power to insist that some people die, particularly because the state has imposed upon the ability of those people to mount a (for the circumstances they happened to face) a timely defense? The proposition that a forced delay of one's response to a self-defense situation is Constitutional is identical to the proposition that the state can legitimately decide that some of the citizenry must die in their self-defense efforts in order for its edict to stand.

Woe to us if such a thing is Constitutional.

M. D. Van Norman
12-16-2014, 9:08 AM
I’m asking Calguns: what do we do if cert is denied?

If we were reasonable people in San Francisco, we would break the law.

FABIO GETS GOOSED!!!
12-16-2014, 9:16 AM
You say this with eyes upturned, but the contrary argument, that some delay is Constitutional, yields the result that at least some citizens will die because of that imposed delay.

I don't disagree with you at all. There are those who don't have a problem with that and some have even written court decisions essentially saying so (one said it's much quicker to remove a trigger lock than it was to load a musket). The claim that this legal question has already been decided by the supreme court is what gets the rolled eyes. Scalia may not be having it but who knows what everone else thinks about "it doesn't take too long to remove trigger lock." Jackson squarely presents the question and repeating myself I think there are good "that could get me killed" burden arguments and that the case is a winner if cert is granted.

FABIO GETS GOOSED!!!
12-16-2014, 9:17 AM
If we were reasonable people in San Francisco, we would break the law.

Yep.

Southwest Chuck
12-16-2014, 9:45 AM
If we were reasonable people in San Francisco, we would break the law.

....and keep your mouth SHUT - if, (God forbid), you ever had to use your firearm on an intruder..... until speaking to your attorney. Don't help them make a case against you. They would have to prove you didn't have your firearm safely stored prior to the incident, unless of course you inadvertently volunteered the information as you described the incident at the scene. IANAL, but it seems basic enough.

"He broke in and he advanced on me. I was in fear of my life officer, so I shot to stop him. I'm pretty shook'in up right now. I will cooperate fully and give a complete statement after I calm down, and speak to my attorney"

^^^ or some such language as other's have advised in the past, but always tell the truth. Then SHUT UP, and don't answer any more questions. Just rinse and repeat the above, IMO.

dantodd
12-16-2014, 12:21 PM
Guys, I believe FGG was saying that his reading of Heller leads him to believe that the trigger lock per se isn't what sunk the law but rather the lack of an exception whereby one might legally remove the lock for purposes of self-defense.

Since the SF ordinance has a self-defense exception it is materially different than the D.C. Statute in Heller and therfore may be decided differently.

I am not sure that I completely buy the idea that the self-defense argument is truly a material difference and I don't believe the Fabio says that he believes the difference is necessarily enough to uphold the law but merely that the difference exists and it is material.

Sorry, if I misrepresented your position.

9M62
12-16-2014, 12:25 PM
I just love that San Franciscans constantly ***** and moan about every kind of freak act or drug use with the motto "Government should stay out of my bedroom" but when it comes to guns they are all for legislating EXACTLY what goes on in my bedroom.

You want to walk down the street with your dick out, a dildo in your ***, go home marry 3 people and smoke dope -- by all means, we must allow it.

You want to defend your family with a constitutionally protected right? Nope, "we know best" so you need to do what we say.

*rolleyes*

gogohopper
12-16-2014, 12:36 PM
I just love that San Franciscans constantly ***** and moan about every kind of freak act or drug use with the motto "Government should stay out of my bedroom" but when it comes to guns they are all for legislating EXACTLY what goes on in my bedroom.

You want to walk down the street with your dick out, a dildo in your ***, go home marry 3 people and smoke dope -- by all means, we must allow it.

You want to defend your family with a constitutionally protected right? Nope, "we know best" so you need to do what we say.

*rolleyes*

Sig worthy chit right there

9M62
12-16-2014, 12:48 PM
Haha ;)

FABIO GETS GOOSED!!!
12-16-2014, 2:16 PM
The part about exceeding the scope of the argument, I am pretty sure that the Supreme court has a little leeway in framing the question that they are answering. They may have just decided to expand on the question a little bit to include, essentially, "at all times."

On what basis are you "pretty sure" that the supreme court would do that with no factual record, no briefing, no notice to the parties, no hearing, no due process, no explanation, no discussion? I don't think so lol.

kcbrown
12-16-2014, 3:05 PM
On what basis are you "pretty sure" that the supreme court would do that with no factual record, no briefing, no notice to the parties, no hearing, no due process, no explanation, no discussion? I don't think so lol.


The Supreme Court certainly has the power to do that, at least. Was there no briefing in Heller that covered the time critical nature of self defense?

RobertMW
12-16-2014, 3:26 PM
On what basis are you "pretty sure" that the supreme court would do that with no factual record, no briefing, no notice to the parties, no hearing, no due process, no explanation, no discussion? I don't think so lol.

Ok, fine, on this basis. From The Rules of The Supreme Court, Rule 24 sec. (1)(a)

At its option, how*ever, the Court may consider a plain error not among the questions presented but evident from the record and other*wise within its jurisdiction to decide.

If The Court feels it is within the jurisdiction of the court, and scope of the case, they may modify the question posed to them. If, during their decision making process, the court decided that no weapon may be prohibited from being at its most ready state for self-defense, this rule explicitly says that they may consider it.

FABIO GETS GOOSED!!!
12-16-2014, 3:35 PM
Don't try to play lawyer. It's not "evident from the record" because it's not in the record. Do you even have any idea what they mean by "plain error"?

lowimpactuser
12-16-2014, 4:06 PM
....and keep your mouth SHUT - if, (God forbid), you ever had to use your firearm on an intruder..... until speaking to your attorney. Don't help them make a case against you. They would have to prove you didn't have your firearm safely stored prior to the incident, unless of course you inadvertently volunteered the information as you described the incident at the scene. IANAL, but it seems basic enough.

"He broke in and he advanced on me. I was in fear of my life officer, so I shot to stop him. I'm pretty shook'in up right now. I will cooperate fully and give a complete statement after I calm down, and speak to my attorney"

^^^ or some such language as other's have advised in the past, but always tell the truth. Then SHUT UP, and don't answer any more questions. Just rinse and repeat the above, IMO.

And see, that's what's so SAD. From a criminal investigation perspective, use of force, etc. of course that's the right answer.

From a perspective of securing rights, it's exactly what permits this kind of crap to continue ad nauseum. "Well, anyone that's REASONABLE would break the law, and even if not, prosecutorial discretion will save them". It's exactly what's led the antis to say they need NOT codify these things, and let us twist in the wind. Then, when people are prosecuted on BS charges, like the guy with the expended shell case in DC, good people are destroyed and tools like David Gregory, who commits a BIGGER crime, is let off scot-free- and outside pro-gun circles, this gets no play.

There's another thread where someone is lauding the Washington State protestors of 541 over there, who are openly breaking the law and thus making a mockery of it, destroying at least in part its legitimacy. Then contrasts Calguns, where we're all keyboard commandos but...

I'm just saying, I understand, even AGREE with you, from a lawyer perspective. But it exemplifies PERFECTLY the maxim "if you don't stand together, you swing alone".

It's just depressing that the single tool that Calguns (yes, I realize, .org different than foundation, etc. but this applies for all calguns AFAIK) has, uses, etc. is some funding/filing of cases/amicis in the court system. Sure, there is some very ineffectual meetings, virtually no lobbying, and next to ZERO ground game (that in turn can be corrupted easily, e.g. Stan Sniff endorsement), and then a whole lot of cheerleading and prognosticating.

Further, if we DO hit setbacks, we don't have much of a plan, whether KCBrown is correct, or correct in some part. NRA seeded scholars for decades to change the jurisprudence and actually analyze things, paving the way for success today. I just wish there was some longer game, some game that regular us could play, whether it be free cookies handed out at gun stores- or free/cheap .22 ammo on election day, to people who come in with "I voted" stickers.

RobertMW
12-16-2014, 4:15 PM
Don't try to play lawyer.

Glass houses.

FABIO GETS GOOSED!!!
12-16-2014, 4:34 PM
Glass houses.

lol. You don't have a better comeback for that lame "plain error" cite? :laugh:

RobertMW
12-16-2014, 5:09 PM
lol. You don't have a better comeback for that lame "plain error" cite? :laugh:

I quoted what was relevent. You disagree and invoke a pissing contest by attempting to claim that I don't know what a definition for a phrase is rather than offering your own factual rebuttal. I will not begin an argument with someone that will bend definitions in and out of context as they see fit, as it will only lead to infinite cycle, as you can not lose no matter how thoroughly I could falsify your arguments. I now know why you have been muted by so many others, and I will do the same.

kcbrown
12-16-2014, 5:53 PM
Don't try to play lawyer. It's not "evident from the record" because it's not in the record. Do you even have any idea what they mean by "plain error"?


From what part of the record did the "immediate" qualifier in the holding come from?

FABIO GETS GOOSED!!!
12-16-2014, 5:53 PM
I quoted what was relevent.

You don't know what "plain error" is yet somehow you determined your quote was relevent, and it's on me to provide the factual rebuttal. That's a laugh! :laugh: If you haven't clicked the "ignore" button yet, use a little common sense and think about how there could be "plain error" in perhaps the most novel court case in recent history where there is literally no precedent whatsoever for the issues being decided. Then click the ignore button lol.

FABIO GETS GOOSED!!!
12-16-2014, 6:21 PM
From what part of the record did the "immediate" qualifier in the holding come from?

I don't know that the particular word appears any where in any of the briefs, and I'm assuming it doesn't. I'm sure you'll take that to mean the holding is more expansive than the "basis" and that the court did that without notice, hearing, discussion, or explanation lol. The record has lots of stuff about sudden threats, emergencies, self defense "only when necessary," so it doesn't surprise me that the court would use a word that is synonymous with all that.

kcbrown
12-16-2014, 7:03 PM
I don't know that the particular word appears any where in any of the briefs, and I'm assuming it doesn't. I'm sure you'll take that to mean the holding is more expansive than the "basis" and that the court did that without notice, hearing, discussion, or explanation lol. The record has lots of stuff about sudden threats, emergencies, self defense "only when necessary," so it doesn't surprise me that the court would use a word that is synonymous with all that.

I don't expect them to directly take the word from the record. It's sufficient if it's synonymous with the various things in the record. I just wasn't sure if that was something that had in some way been covered in the record (frankly, I'd be very surprised if it wasn't), and it's clear from what you've been saying that it must be covered for the Court to use such a term without violating the rules you're implying it follows.

FABIO GETS GOOSED!!!
12-16-2014, 8:18 PM
Got it. I did find a very small bit of evidence in the record, not briefed or mentioned anywhere other than in the document in which it is found, about the hassle of unlocking a firearm to deal with a sudden threat; bonus points to the first who finds it.;)

Changing gears, more of why I don't like the cert petition:

But the decision below upholds an ordinance that is materially indistinguishable from the trigger-lock law invalidated in Heller.

The law in Heller was more extreme. It denied access to arms, prohibiting armed self-defense in the home, while the City’s mandate interferes with access to those arms, making armed self-defense more difficult.

:facepalm:

wolfwood
12-16-2014, 10:28 PM
That's sort of my point about this.

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Declaration-of-Espanola-Jackson.pdf

Linked is the declaration of the named Defendant. All the declarations are the same by the Defendants. She says nothing about how this actually is a impediment to her right to self-defense. No attempt was made to rebut the City's claim that it takes a person 3-4 seconds to open a box. If on remand they have a trial and she testifies that as a 86 year old women presumably with mobility issues it in fact would take her 2-3 minutes to get to that gun even if it is close by her then I think that this is a winnable case.

Maestro Pistolero
12-17-2014, 4:29 AM
Except I didn't actually make the argument that was attributed to me. oh yeah lol.

It is this argument to which I refer:

http://www.calguns.net/calgunforum/showpost.php?
p=15452508&postcount=133

Yes, "without delay." The opinion is consistent in its use of "render" and its variants: rendering inoperable is locking or disassembling, rendering operable is unlocking or assembling. As you point out delay is inherent in the rendering operable of a firearm and as such no rendering operable can ever be "immediate." So what the supreme court is saying, apparently, is "DC's trigger lock law violates the 2A because it prohibits you from completely ignoring the law by never locking your gun," i.e., the 24/7 self-defense exception that swallows the rule. And in the process of arriving there, the supreme court engages in the entirely beside the point determination whether the DC law does or does not allow you to unlock your handgun if there is an intruder at 2am. Either way -- total prohibition or delay --the law is unconstitutional, but what the hell? Let's make that determination for sh*ts and giggles and then tell everybody that that it's the reason why the law is unconstitutional. Then, with no further discussion, let's announce a holding more expansive than our previously stated reason; of course we would never come right out and say, "no trigger lock is constitutional unless it can be completely ignored", that would be too direct. I don't think this is nonsensical at all, noooo! lol. An artificially imposed delay is not the same as a delay inherent in the operating of the firearm (clicking off a safety, retrieving from a holster, racking a round if that's the way one chooses to carry). The first is an infringement created by law, the other a function of natural physics. I don't agree that it's apparent that the court meant to say that only a complete prohibition on a ready firearm is unconstitutional. Though I don't doubt that (at least some) of the non-Heller-five would like to read it that way.

Lol. Because it's so effing funny.

FABIO GETS GOOSED!!!
12-17-2014, 5:50 AM
Here is the argument that was incorrectly attributed to me, now for the second time by you lol:

Your argument is that even having a gun laying on the counter next to you will still incur a delay, thus SCOTUS must have been determining that some delay will always be acceptable when using the term "immediate" in this context.

Heller's holding:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense

The DC law violated the 2A because it prohibited the rendering operable of the handgun -- which necessarily entails the "artificially imposed delay" of unlocking the handgun -- in a self-defense emergency. "The DC law won't let me unlock my handgun to defend myself against a sudden intruder." That's how I'm interpreting it. If by "immediate" the SC meant "no artificially imposed delay is acceptable," the holding is literally nonsense, as it would be saying the DC law violated the 2A because it prohibited something that's not even possible to do in the first place: one can never render a firearm operable for the purpose of no-artificial-delay self-defense because that rendering operable will always entail an artificially imposed delay. What the SC is actually saying is that the problem with the law and the reason why it is unconstitutional is that it does not have a "self-defense exception." It's crystal clear from the record that everyone understood that to mean that you were not allowed to unlock your firearm (artificial delay included) if and when necessary to deal with an emergency.

Funtimes
12-17-2014, 7:47 AM
It's crystal clear from the record that everyone understood that to mean that you were not allowed to unlock your firearm (artificial delay included) if and when necessary to deal with an emergency.

This is one thing I remember standing out. It was never ok. Under this same theory, in Hawaii, it was never ok to utilize a firearm outside the home for self-defense because there are zero exceptions for that. Where in CA, I believe they had an exception for the time between the event and the time police can come?

kcbrown
12-17-2014, 8:49 AM
It's crystal clear from the record that everyone understood that to mean that you were not allowed to unlock your firearm (artificial delay included) if and when necessary to deal with an emergency.

Exactly. That is indeed the basis on which the Court struck the law.

The "immediate" bit in the holding is not derived from, nor the basis for, the reason the Court struck the law. It is embedded in the statement of what the Court holds true. Here, essentially saying that the law cannot impose upon "immediate" self-defense.

The Court could have omitted that particular word from the holding, and as regards striking the DC law, the end result would have been identical. I do not believe their inclusion of that term to be an accident, precisely because it is in the context of what the Court holds to be true.

Since "immediate" refers to the interval of time between the point at which self-defense becomes necessary and the time a defense can be mounted (as it is a term applied to "self-defense"), it logically follows that trigger lock laws and other such laws that operate in such a way as to impose time burdens on those who wish to use firearms for self-defense are infringements upon the right, seeing how they forcibly reduce the probability of a self-defense effort being timely. Inasmuch as such imposition will necessarily eventually get people killed, it also seems logical that justification of such infringement should be immensely difficult, if possible at all.

But, of course, nothing constrains the courts to operate logically. Nevertheless, cases which have such as their basis must be brought. This is one such, even if the petition for cert has some problems. I just hope the Court is able to see past those problems.

FABIO GETS GOOSED!!!
12-17-2014, 8:50 AM
Let me be clear that I'm not saying the court held that trigger lock laws with self defense exceptions are constitutional, only that the court's holding is limited to the specific question before it, i.e., is a trigger lock law without a self defense exception constitutional? No. The holding does not go beyond that.

FABIO GETS GOOSED!!!
12-17-2014, 8:57 AM
The "immediate" bit in the holding is not derived from, nor the basis for, the reason the Court struck the law.

Not according to you lol. You're not claiming that I'm agreeing with you on that are you?

Maestro Pistolero
12-17-2014, 9:01 AM
Here is the argument that was incorrectly attributed to me, now for the second time by you lol:

Have you lost your mind? In post#170 I quoted/copied/pasted YOUR post #133 from this thread to eliminate your confusion over what you think I am attributing to you.

I am attributing nothing else to you aside from your own words in post #133. My comment and criticism is only regarding the passage I pasted from you.

rofl, lmao, etc., etc.

FABIO GETS GOOSED!!!
12-17-2014, 9:25 AM
You realize that everything from the sentence beginning with "So what..." on was sarcastic? And that the reason why I think the counter-interpretation of the holding is nonsense is because artificially delayed rendering operable is incompatible with no artificial delay self defense? No, I don't think the supreme court "apparently" held that the DC law was unconstitutional because it prohibits you from ignoring the law entirely by never locking your gun lol. That's not my argument, I'm making fun of someone else's argument.

Maestro Pistolero
12-17-2014, 9:37 AM
You realize that everything from the sentence beginning with "So what..." on was sarcastic? And that the reason why I think the counter-interpretation of the holding is nonsense is because artificially delayed rendering operable is incompatible with no artificial delay self defense? No, I don't think the supreme court "apparently" held that the DC law was unconstitutional because it prohibits you from ignoring the law entirely by never locking your gun lol. That's not my argument, I'm making fun of someone else's argument.

Well ok, then. That was not obvious to me.

FABIO GETS GOOSED!!!
12-17-2014, 9:51 AM
Well ok, then. That was not obvious to me.

Next time I will use more :rolleyes: and :laugh: haha.

wolfwood
12-17-2014, 9:52 AM
Got it. I did find a very small bit of evidence in the record, not briefed or mentioned anywhere other than in the document in which it is found, about the hassle of unlocking a firearm to deal with a sudden threat; bonus points to the first who finds it.;)

Changing gears, more of why I don't like the cert petition:





:facepalm:


Fabio help me out and link me to the document.

mshill
12-17-2014, 9:53 AM
FGG has made the point the precision of language is important. If the matter of law was simply based on intent we would not have bullet buttons, grip wraps,10/30 mags, or SSE.
The sword cuts both ways.

IVC
12-17-2014, 10:22 AM
Let me be clear that I'm not saying the court held that trigger lock laws with self defense exceptions are constitutional, only that the court's holding is limited to the specific question before it, i.e., is a trigger lock law without a self defense exception constitutional? No. The holding does not go beyond that.

The court answered the question "is a trigger lock law without a self defense exception constitutional in D.C.? No."

Yet, we do *not* read it that the question hasn't been answered for any other locality. Same goes for the "immediate" part of the language (which is there, presumably for a reason.)

FABIO GETS GOOSED!!!
12-17-2014, 10:24 AM
Fabio help me out and link me to the document.

Here it is, it was one of the MSJ declarations:

St. Lawrence declaration (http://www.gurapossessky.com/news/parker/documents/GillianStLawrenceDecl.pdf)

kcbrown
12-17-2014, 10:33 AM
Let me be clear that I'm not saying the court held that trigger lock laws with self defense exceptions are constitutional, only that the court's holding is limited to the specific question before it, i.e., is a trigger lock law without a self defense exception constitutional? No. The holding does not go beyond that.


If the holding truly does not go beyond that, then that renders the term "immediate" inert, since the effect of the holding would then be identical without it. Are you claiming that the use of that term in the holding is effectless? You would have to be for your statement above to be true.

So either the term has effect and your statement above is wrong, or your statement is correct and the term has no effect. Which is it?

speedrrracer
12-17-2014, 11:26 AM
Here it is, it was one of the MSJ declarations:

St. Lawrence declaration (http://www.gurapossessky.com/news/parker/documents/GillianStLawrenceDecl.pdf)

Not to derail the thread, but what's the value of something being in the "record"?

Since this was from the "winning" side, is this now somehow of elevated importance in a courtroom? Is it now as if SCOTUS had endorsed this, or agreed with it? If it had been from the losing side, would we not be able to mention it, or would there have been an implication that SCOTUS disagrees with it?

M. D. Van Norman
12-17-2014, 11:41 AM
Fabio is being his usual persnickety self, but I’m surprised that the rest of you aren’t following him so well. Do you understand what he means by “a self-defense exception that swallows the secure-storage rule”? The rather impractical exception to the San Francisco ordinance clearly does not and is so impractical (as to be an infringement on the right to bear arms) that, as he contends, it will likely be stricken … if certiorari review is granted. Less impractical exemptions might pass constitutional muster, and even plaintiffs’ counsel in Heller suggested that they would.

IVC
12-17-2014, 11:50 AM
To be accurate, nobody has explained thus far how a "self defense exception" (exception based on intent) relates to the "immediate self defense" (functional requirement of "immediate.")

The latter is clearly in the ruling, so it must carry some weight if we are to discuss what the ruling means. As it stands, FGG is claiming that "self defense exception" (which is what the court noticed was missing in D.C.) is the ONLY aspect of the ruling, or alternatively, that the "immediate" only relates to the lack of "self defense exception."

This would be a "he filled and kicked the bucket" type of interpretation. No?

FABIO GETS GOOSED!!!
12-17-2014, 12:21 PM
It's kcbrown tedious repetition time now lol. You're not even trying to mount an argument that without briefing, without notice, without opportunity to be heard, without discussion, the court telegraphed a holding that exceeded the scope of the question it was deciding, which is necessarily what you are saying they did. You're saying the court just chucked process out the window and you have zero evidence that it did. Just for kicks I searched for the use of the phrase "immediate self-defense" and not surprisingly found many examples of the usage of that phrase (for example in international law, rules of engagement, etc.) all of which were conistent with how I am interpreting it i.e. synonymous with emergency, and none which suggest any redundancy using "immediate" to modify self-defense.

kcbrown
12-17-2014, 12:30 PM
It's kcbrown tedious repetition time now lol. You're not even trying to mount an argument that without briefing, without notice, without opportunity to be heard, without discussion, the court telegraphed a holding that exceeded the scope of the question it was deciding, which is necessarily what you are saying they did. You're saying the court just chucked process out the window and you have zero evidence that it did. Just for kicks I searched for the use of the phrase "immediate self-defense" and not surprisingly found many examples of the usage of that phrase (for example in international law, rules of engagement, etc.) all of which were conistent with how I am interpreting it i.e. synonymous with emergency, and none which suggest any redundancy using "immediate" to modify self-defense.


Then explain how the use of "self defense" in the holding with the "immediate" modifier differs from its use without that modifier in the holding. How does it make any difference whatsoever to the holding's effects, even if we use your interpretation of "immediate"?

To be clear, I do not know if the time critical nature of self-defense was briefed, but I would be immensely surprised if it hadn't been. If it was, then clearly the Court could have used the term "immediate" in the way I'm suggesting, no?

FABIO GETS GOOSED!!!
12-17-2014, 1:10 PM
To be accurate, nobody has explained thus far how a "self defense exception" (exception based on intent) relates to the "immediate self defense" (functional requirement of "immediate.")

I'm having a really hard time following just about everything in your last post. For the life of me I can't figure out what you mean by "exception based on intent" or "functional requirement," but anyways immediate self defense is precisely what the self-defense exception explicitly briefed and argued in Heller is concerned with: did the DC law allow you to unlock your gun to deal with an emergency such as a sudden intruder or a rapist? It's doesn't have anything to do with an interval of time between discovery and readiness.

M. D. Van Norman
12-17-2014, 1:36 PM
This would be a “he filled and kicked the bucket” type of interpretation. No?

It is certainly a persnickety distinction, but it also appears to be correct. Therefore, the boundaries of self-defense exemptions to secure-storage requirements remain undefined. Heller shows only that no exception clearly fails constitutional muster, though it may imply much more.

The San Francisco ordinance meets Heller’s minimum limit but probably falls well outside the constitutional maximum under the Second Amendment. The ability to render weapons operable for immediate self-defense could be found somewhere within those boundaries. Jackson may help define such limits … if the Supreme Court deigns to review it.

It’s really a Fourth Amendment issue anyway, so all the Second Amendment theorizing is window dressing. Given the broader implications for the intrusion of governments into the sphere of private life, the high court could and hopefully would decide in our favor without touching the right-to-arms issue directly—a fact which might actually increase the likelihood of certiorari in this case.

IVC
12-17-2014, 2:58 PM
Therefore, the boundaries of self-defense exemptions to secure-storage requirements remain undefined.

Except for the wording of "immediate self-defense."

If the court didn't mean "immediate" they shouldn't have said "immediate" (as some Circuit courts have address the Supreme Court.)

kcbrown
12-17-2014, 3:13 PM
I'm having a really hard time following just about everything in your last post. For the life of me I can't figure out what you mean by "exception based on intent" or "functional requirement," but anyways immediate self defense is precisely what the self-defense exception explicitly briefed and argued in Heller is concerned with: did the DC law allow you to unlock your gun to deal with an emergency such as a sudden intruder or a rapist? It's doesn't have anything to do with an interval of time between discovery and readiness.


But "deal with an emergency" is mentioned nowhere in the part of the decision that covers the inoperability requirement of the law, nor is any equivalent construct. In fact, in that section, self-defense as a term is used solely in an unmodified manner. So what concerned the Court as regards that isn't self-defense in an emergency, it's self-defense period. So once again, you fail to address the question: in what way does the holding differ in its effect as-is versus what it would be if it omitted the term "immediate"? Your reading gives the word no effect whatsoever in the holding.

IVC
12-17-2014, 6:09 PM
...but anyways immediate self defense is precisely what the self-defense exception explicitly briefed and argued in Heller is concerned with: did the DC law allow you to unlock your gun to deal with an emergency such as a sudden intruder or a rapist? It's doesn't have anything to do with an interval of time between discovery and readiness.

Here is another way to say the same thing:

(1) Court said that a law that doesn't have an exception for immediate self-defense is unconstitutional.

(2) S.F. ordinance has exception for "self defense," but does NOT have an exception for "immediate self-defense" where "immediate" is defined per standard dictionary.

(3) S.F. ordinance either needs to be stricken down, or it must provide an exception for "immediate self-defense."

Either way, the question answered by the Supreme Court includes the phrase "immediate" and it's an integral part of the reasoning.

kcbrown
12-17-2014, 6:11 PM
immediate self defense is precisely what the self-defense exception explicitly briefed and argued in Heller is concerned with: did the DC law allow you to unlock your gun to deal with an emergency such as a sudden intruder or a rapist? It's doesn't have anything to do with an interval of time between discovery and readiness.

Actually, I may have to retract my last, because if we use your interpretation, then the holding can be interpreted to imply that the 2nd Amendment does nothing to implicate laws which infringe upon "non-immediate" self-defense. That would be a particularly evil reading of the holding, but it's "plausible" (in that it's a potential way to read the words, not necessarily that it's consistent with the general underlying theme of Heller) and consistent with your apparent interpretation.

Funtimes
12-17-2014, 7:45 PM
Here is another way to say the same thing:

(1) Court said that a law that doesn't have an exception for immediate self-defense is unconstitutional.

(2) S.F. ordinance has exception for "self defense," but does NOT have an exception for "immediate self-defense" where "immediate" is defined per standard dictionary.

(3) S.F. ordinance either needs to be stricken down, or it must provide an exception for "immediate self-defense."

Either way, the question answered by the Supreme Court includes the phrase "immediate" and it's an integral part of the reasoning.


When is self-defense, by definition, not immediate? The whole concept is based on an immediate threat that you cannot avoid (or are not required to avoid).

M. D. Van Norman
12-17-2014, 9:35 PM
S.F. ordinance has exception for “self defense,” but does NOT have an exception for “immediate self-defense” where “immediate” is defined per standard dictionary.

In fact, it does have an exemption that covers immediate self-defense (by any definition), but it is unreasonably narrow. Fabio suspects it will fall, if the Supreme Court decides to review the case, and I agree. However, we may not want the upper limit on “immediate self-defense” to be defined at all. Allowing such would have uncomfortable implications throughout the private sphere. Can the state mandate how secure your car keys should be?

dantodd
12-18-2014, 11:05 AM
The "immediate" bit in the holding is not derived from, nor the basis for, the reason the Court struck the law. It is embedded in the statement of what the Court holds true. Here, essentially saying that the law cannot impose upon "immediate" self-defense.

The Court could have omitted that particular word from the holding, and as regards striking the DC law, the end result would have been identical. I do not believe their inclusion of that term to be an accident, precisely because it is in the context of what the Court holds to be true.

But to place so much import to "immediate" don't you have to acknowledge that all the words in the sentence are equally important? If you acknowledge that then what of the word "render?"

Doesn't the word "render" imply that it is conceivably possible that there could exist some laws that force one to make their firearms inoperable at times? Otherwise why would one ever need to be permitted to render then operable?

Now, I think that it is likely, and I hope actually, the intent of the court is to cover laws that might force one to safely store a weapon when it is out of your control and not strictly when it is not on your person. For example, requiring one to lock their weapons when they are left in an empty home where they might be subject to theft. In other words, forcing one to lock up guns when they aren't able to take immediate possession may constitutional but the S.F. Ordinance goes beyond on this.

There seems to be quite a bit of area between being unable to "render" a firearm ready for "immediate" use, as was the case in Heller, and a safe storage requirement for unused weapons outside of your sphere of influence. It seems that the S.F. Ordinance falls in this area and as such Heller doesnt give direct guidance but that doesn't mean it is constitutional either.

LoneYote
12-18-2014, 4:07 PM
For example, requiring one to lock their weapons when they are left in an empty home where they might be subject to theft.

Why is my empty locked home insufficient to prevent theft but a 5lbs metal box is or a $5 cable lock?

speedrrracer
12-18-2014, 4:19 PM
This whole Jackson thing is really confusing. So part of it says they can force you to lock your gun at home. I think FGG has established pretty well that a locked gun is not an operable gun, right? After all, if one must "render" a locked gun operable, then the universe requires that it is not operable when locked for that statement to be true.

According to Peruta:

"Our conclusion that the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense." (emphasis mine)

So the law in the 9th says I can have an operable firearm outside the home, but [I]Jackson says I can't have one inside the home? Where SCOTUS says things are "most acute"?

If Peruta still stands after en banc, how can Jackson still stand, or at least the part dealing with forcing a lock at home? Aren't they at odds, and isn't the en banc panel "controlling", meaning the regular 9th must obey it's decisions? Would an en banc affirming Peruta have any effect on Jackson, since portions of them are polar opposites?

Somebody help my law-impaired brain :)

LoneYote
12-18-2014, 4:27 PM
So the law in the 9th says I can have an operable firearm outside the home, but Jackson says I can't have one inside the home? Where SCOTUS says things are "most acute"?

No conflict actually. The P.C. says you can have an operable firearm on your person. I.E. It is legal to "bear" in your home. The problem is that the law says if it isn't directly on your person it must be locked.

IVC
12-18-2014, 4:38 PM
Why is my empty locked home insufficient to prevent theft but a 5lbs metal box is or a $5 cable lock?

Theft is only one stated government interest. There are others.

LoneYote
12-18-2014, 5:10 PM
Theft is only one stated government interest. There are others.
What are those other interests that a locked empty home would not guard against but a 5lbs metal box or a $5 cable lock would?

dantodd
12-18-2014, 7:43 PM
What are those other interests that a locked empty home would not guard against but a 5lbs metal box or a $5 cable lock would?

A child or visitor to your home finding and accidentally discharging the weapon. Also, realize that just because something isn't directly in Heller opinion doesn't mean it IS constitutional, just that SCOTUS hasn't yet directly dealt with it. I think the law violates the second amendment.

kcbrown
12-18-2014, 8:11 PM
But to place so much import to "immediate" don't you have to acknowledge that all the words in the sentence are equally important? If you acknowledge that then what of the word "render?"

Doesn't the word "render" imply that it is conceivably possible that there could exist some laws that force one to make their firearms inoperable at times? Otherwise why would one ever need to be permitted to render then operable?


Of course. Storage laws that cover firearms in the home and that operate when you're not home certainly qualify. But note that such laws would not interfere with the ability to defend oneself right now.

As for the question of "what about when you arrive at home only to find a burglary in progress?" (that was FGG's, but I'll answer it here because it's consistent with the context of our discussion), the answer to that is that the right extends outside the home as well, and as such, arrival at home should not be an issue because you will already be carrying. Or, at least, you would be in the absence of rights-infringing laws to the contrary.

It is invalid to presume that a given interpretation of the decision is invalid because it fails to account for situations in which one's rights are being infringed in some other context.



There seems to be quite a bit of area between being unable to "render" a firearm ready for "immediate" use, as was the case in Heller, and a safe storage requirement for unused weapons outside of your sphere of influence. It seems that the S.F. Ordinance falls in this area and as such Heller doesnt give direct guidance but that doesn't mean it is constitutional either.Perhaps. The problem here is that the term "immediate" must have some meaning that causes the holding to have a different effect than it would in its absence. Must we read it as saying that laws which forbid you from readying your weapon for self-defense are valid as long as the need for such defense is not "immediate"? Meaning that it is valid for the government to statutorily forbid you from preparing your defense (e.g., if you knew ahead of time that you were going to be attacked)? That is the only interpretation I can think of which is consistent with your objection above and the requirement that the term have some effect.

dantodd
12-18-2014, 8:37 PM
Perhaps. The problem here is that the term "immediate" must have some meaning that causes the holding to have a different effect than it would in its absence. Must we read it as saying that laws which forbid you from readying your weapon for self-defense are valid as long as the need for such defense is not "immediate"? Meaning that it is valid for the government to statutorily forbid you from preparing your defense (e.g., if you knew ahead of time that you were going to be attacked)? That is the only interpretation I can think of which is consistent with your objection above and the requirement that the term have some effect.

Of course immediate has a meaning. If you were to be in need of a weapon for self defense it must be lawful for you to immediately render the weapon usable.

Now, it doesn't say that "rendering it useful" has to mean just picking it up and pulling the trigger. I think the court may well hold that to be the case but Heller doesn't specifically say that. It says you have have the right to lawfully render it usable without delay. So, a law requiring you to call the PD and ask for permission to use the weapon would be unconstitutional and a law forbidding you from using the weapon at all (as was the fact pattern in Heller) would be clearly unconstitutional. However; a law requiring the safety to be on, an empty chamber, or a secondary locking device until you are in immediate need of the weapon for self defense was not addressed by the ruling. (At least not that part.)

Now, like FGG, I suspect this ordinance is unconstitutional. I just don't think that Heller directly states as much. I believe that the intent of Heller and its analysis of the right should make it clear that such a law is unconstitutional but I don't think that a ruling that the law is constitutional would go directly against precedence,

FABIO GETS GOOSED!!!
12-18-2014, 9:45 PM
I like the latest variation on the rule swallowing exception, it's "the trigger lock law that never applies because you're always carrying inside and outside the home" I agree that would certainly be a constitutional trigger lock law.

FABIO GETS GOOSED!!!
12-18-2014, 10:03 PM
Let's play "let's make a trigger lock law." All guns must be trigger locked. Except if there's an emergency. Except if you're sleeping. Except if you're in the shower. Except if you're making spaghetti. Except if you're taking a crap. Except if you're watching Netflix. Except if you're carrying inside or outside the house. If you own multiple firearms, those are excepted too, because a trigger lock law can't interfere with your ability to defend yourself right now with those firearms too (thank you calguns v silvester). I think this law is constitutional...did I miss any exceptions?

M. D. Van Norman
12-18-2014, 10:04 PM
Why stop with guns?

Librarian
12-18-2014, 10:22 PM
Let's play "let's make a trigger lock law." All guns must be trigger locked. Except if there's an emergency. Except if you're sleeping. Except if you're in the shower. Except if you're making spaghetti. Except if you're taking a crap. Except if you're watching Netflix. Except if you're carrying inside or outside the house. If you own multiple firearms, those are excepted too, because a trigger lock law can't interfere with your ability to defend yourself right now with those firearms too (thank you calguns v silvester). I think this law is constitutional...did I miss any exceptions?

Yes - 'except on days whose proper name in English ends with the letter "y"'; or, perhaps, 'except on days when one knows for certain s/he will not need to defend him/herself'.

FABIO GETS GOOSED!!!
12-18-2014, 10:39 PM
Yes - 'except on days whose proper name in English ends with the letter "y"'

Are you trying to gut the entire law? That exception would mean guns never have to be locked.

FABIO GETS GOOSED!!!
12-18-2014, 10:54 PM
On second thought, I'm not liking "All guns must be trigger locked," it sounds a little bossy. I'm going to change it to "Trigger locking of all guns is gently encouraged."

FABIO GETS GOOSED!!!
12-18-2014, 11:08 PM
...'except on days when one knows for certain s/he will not need to defend him/herself'.

lol.

kcbrown
12-19-2014, 12:50 AM
Of course immediate has a meaning. If you were to be in need of a weapon for self defense it must be lawful for you to immediately render the weapon usable.


Not if Fabio's reading is correct.



Now, it doesn't say that "rendering it useful" has to mean just picking it up and pulling the trigger. I think the court may well hold that to be the case but Heller doesn't specifically say that. It says you have have the right to lawfully render it usable without delay. So, a law requiring you to call the PD and ask for permission to use the weapon would be unconstitutional
Would it? One would think, but if Fabio's interpretation (that "immediate self-defense" merely means "emergency requiring self-defense") is correct, then the Constitutional enjoinment in Heller applies only to laws which prohibit one from "rendering operable" the firearm for an "emergency requiring self-defense". Which means two things:



The decision says nothing about how long an imposed delay can actually be and remain consistent with the decision -- all that matters is whether or not the law forbids one from readying the weapon in an emergency. And if that's the case, then a law requiring you to call the PD to, say, get the combination to the safe, would in fact be "Constitutional" (or at least not addressed by Heller, a condition that lower courts have been treating as synonymous with "Constitutional"), because the law would not be forbidding you from readying your weapon in an emergency, only imposing an artificial and arbitrarily long delay before you can. In practical terms, that would of course result in failure to mount a self-defense effort, but clearly the law's practicality (or lack thereof) is irrelevant in Fabio's world (it remains to be seen whether it is also irrelevant in the world of the Supreme Court).
If the need for self-defense is anticipated in advance, then a law prohibiting making the weapon ready in that case could be Constitutional (depending on whether or not such a situation would be considered an "emergency").


Everything depends on exactly what "immediate" applies to here. My interpretation is that it applies to the act of self-defense, i.e. the point in time one can act in self-defense after the need for such arises. Fabio's interpretation is that it applies to the situation, meaning that the need itself is immediate but the point in time that one is able to respond to that need is arbitrarily, and thus can be artificially, long.

If it applies to the act of self-defense, then clearly any law that artificially increases the time required for one to make the weapon ready would be Unconstitutional, as the law would be imposing upon the immediacy of the act of self-defense. If it applies to the situation, i.e. is not a modifier on the act of self-defense but rather on the need for it, then any law which imposes an artificial delay no matter how long that delay is will not be considered contrary to Heller, because the law would not be dictating whether one can respond to an emergency, only the rapidity with which one can respond (and the latter is not a property of the immediacy of the situation, but of other things).

Heller states "immediate" as a modifier of self-defense, not of the need for self-defense. That argues for the interpretation I'm using, and against the one Fabio is using. But mine doesn't appear to be without problems, either.



However; a law requiring the safety to be on, an empty chamber, or a secondary locking device until you are in immediate need of the weapon for self defense was not addressed by the ruling. (At least not that part.)
Well, one has to wonder why Heller would let stand laws which would prevent you from readying your firearm in advance, but that's the only reading of the holding that is consistent with Fabio's interpretation.

LoneYote
12-19-2014, 12:58 AM
A child or visitor to your home finding and accidentally discharging the weapon. Also, realize that just because something isn't directly in Heller opinion doesn't mean it IS constitutional, just that SCOTUS hasn't yet directly dealt with it. I think the law violates the second amendment.

Dan... I don't know who gave you "the talk" but children do not spring into existence randomly. Also, I have never had a visitor to my home that would have to break into my home.

What are those other interests that a locked empty home would not guard against but a 5lbs metal box or a $5 cable lock would?

9M62
12-19-2014, 1:18 AM
No conflict actually. The P.C. says you can have an operable firearm on your person. I.E. It is legal to "bear" in your home. The problem is that the law says if it isn't directly on your person it must be locked.

The vehicle code defines possession (in a vehicle) as within reach of the driver, or in the passenger compartment in most vehicles.

So, by that notion, I'll consider EVERY AREA of my house to be in my possession, and thus, unnneccasary to lock up my firearm.

LoneYote
12-19-2014, 3:58 AM
The vehicle code defines possession (in a vehicle) as within reach of the driver, or in the passenger compartment in most vehicles.

So, by that notion, I'll consider EVERY AREA of my house to be in my possession, and thus, unnneccasary to lock up my firearm.


SEC. 4512. HANDGUNS LOCATED IN A RESIDENCE TO BE KEPT IN A LOCKED CONTAINER OR DISABLED WITH A TRIGGER LOCK.
(a) Prohibition. No person shall keep a handgun within a residence owned or controlled by that person unless the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice.
(b) Definitions.
(1) "Residence." As used in this Section, "residence" is any structure intended or used for human habitation including but not limited to houses, condominiums, rooms, in law units, motels, hotels, SRO's, time-shares, recreational and other vehicles where human habitation occurs.
(2) "Locked container." As used in this Section, "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock or similar locking device.
(3) "Handgun." As used in this Section, "handgun" means any pistol, revolver, or other firearm that is capable of being concealed upon the person, designed to be used as a weapon, capable of expelling a projectile by the force of any explosion or other form of combustion, and has a barrel less than 16 inches in length.
(4) "Trigger lock." As used in this Section, a "trigger lock" means a trigger lock that is listed in the California Department of Justice's list of approved firearms safety devices and that is identified as appropriate for that handgun by reference to either the manufacturer and model of the handgun or to the physical characteristics of the handgun that match those listed on the roster for use with the device under Penal Code Section 12088(d).
(c) Exceptions. This Section shall not apply in the following circumstances:
(1) The handgun is carried on the person of an individual over the age of 18.

Not possession. Carried on the person. :facepalm:

mshill
12-19-2014, 6:28 AM
Not possession. Carried on the person. :facepalm:

So cops in SF will always have guns drawn when knocking on the door of an owner of a registered handgun because it will likely be on their person when they answer the door. Don't make any sudden moves. /sarcasm

LoneYote
12-19-2014, 7:28 AM
So cops in SF will always have guns drawn when knocking on the door of an owner of a registered handgun because it will likely be on their person when they answer the door. Don't make any sudden moves. /sarcasm

Firstly, I wouldn't put it past them. Secondly, if you read any of the conversation you just jumped into it should be apparent that the exception the PC allows for is the carrying on the person. They could be a registered owner with their weapon in a safe and not be in violation of the law.:facepalm::facepalm:

FABIO GETS GOOSED!!!
12-19-2014, 7:53 AM
Has SF argued yet that its law still allows you build a really big container in your residence that you can get inside of with your gun? You could put a really big lockable steel box in your bedroom and stick your gun, bed, dresser and a flat screen in there. Or just board up your bedroom windows so your bedroom is "fully enclosed" and lock your bedroom door, and voila, the gun is in a "locked container" and so are you! There's nothing in the law that says the locked container can't be an integral part of the residence. The law would also allows you to fully enclose your residence in sheet metal with a simplex locked opening and make the residence one big lockbox. Another no brainer would be an "in case of emergency break glass" handgun lockbox. Just smash it if you've got an intruder, you don't have to worry about lock codes, electrical or mechanical malfunctions, etc. The law doesn't say what the locked container has to be made of, just that it's "fully enclosed" and "locked."

speedrrracer
12-19-2014, 8:00 AM
Has SF argued yet that its law still allows you build a really big container in your residence that you can get inside of with your gun? You could put a really big lockable steel box in your bedroom and stick your gun, bed, dresser and a flat screen in there. Or just board up your bedroom windows so your bedroom is "fully enclosed" and lock your bedroom door, and voila, the gun is in a "locked container" and so are you! There's nothing in the law that says the locked container can't be an integral part of the residence. The law would also allows you to fully enclose your residence in sheet metal with a simplex locked opening and make the residence one big lockbox. Another no brainer would be an "in case of emergency break glass" handgun lockbox. Just smash it if you've got an intruder, you don't have to worry about lock codes, electrical or mechanical malfunctions, etc. The law doesn't say what the locked container has to be made of, just that it's "fully enclosed" and "locked."

The extension of that is that the residence is the locked container, and since all residences of which I'm aware have locking doors, the law voids itself?

Gosh, then why did the 9th not see this, and we have to bother SCOTUS about such simple things?

rlc2
12-19-2014, 8:12 AM
Here is another way to say the same thing:

(1) Court said that a law that doesn't have an exception for immediate self-defense is unconstitutional.

(2) S.F. ordinance has exception for "self defense," but does NOT have an exception for "immediate self-defense" where "immediate" is defined per standard dictionary.

(3) S.F. ordinance either needs to be stricken down, or it must provide an exception for "immediate self-defense."

Either way, the question answered by the Supreme Court includes the phrase "immediate" and it's an integral part of the reasoning.

IVC, thanks again for above. With respect to kc, fgg, and others, it really helps to have a laymans language summary from time to time, for noobs like me in the peanut gallery...here is something I found on scotusblog, that is very helpful, but doesnt often dip lower into the CA decisions:

http://www.scotusblog.com/category/plain-english/


"Program, program, can't watch the game without a program!"

http://m.youtube.com/watch?v=Tnh3Ag8yAfk

FABIO GETS GOOSED!!!
12-19-2014, 8:13 AM
The extension of that is that the residence is the locked container, and since all residences of which I'm aware have locking doors, the law voids itself?

Gosh, then why did the 9th not see this, and we have to bother SCOTUS about such simple things?

Yep lol.

FABIO GETS GOOSED!!!
12-19-2014, 8:14 AM
IVC, thanks again for above.

Just FYI as a purported summary of what I was saying that's all screwed up lol.

Maestro Pistolero
12-19-2014, 8:45 AM
Let's play "let's make a trigger lock law." All guns must be trigger locked. Except if there's an emergency. Except if you're sleeping. Except if you're in the shower. Except if you're making spaghetti. Except if you're taking a crap. Except if you're watching Netflix. Except if you're carrying inside or outside the house. If you own multiple firearms, those are excepted too, because a trigger lock law can't interfere with your ability to defend yourself right now with those firearms too (thank you calguns v silvester). I think this law is constitutional...did I miss any exceptions?

That's funny right there.

IVC
12-19-2014, 8:59 AM
What are those other interests that a locked empty home would not guard against but a 5lbs metal box or a $5 cable lock would?

We agree on the particular point of theft.

A "locked container" inside a home does protect, e.g., against children (your own, or visitors') from finding and operating a loaded gun. In that case the government interest is not "theft," but "safety." It's these additional government interests that expand the applicability of the law beyond the "locked empty home," so your argument applies only partially.

Note that I am not endorsing any particular government interest, merely pointing out the way they see it. Actually, I believe that *all* government interests should be itemized, then each addressed in such a way as to be minimally invasive. In case of "child safety" it would require exemption for people without children, etc.

IVC
12-19-2014, 9:11 AM
Just FYI as a purported summary of what I was saying that's all screwed up lol.

It wasn't. It was a summary of the certiorari petition (http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf) filed by Michel & Associates.

Even in the introduction the petition mentions that Heller requires "operable for the purpose of immediate self-defense." You found a logical workaround to eliminate "immediate" from consideration by being very strict in language analysis surrounding this statement, while being very lax and cavalier with dropping the word "immediate" from the analysis.

IVC
12-19-2014, 9:25 AM
Everything depends on exactly what "immediate" applies to here. My interpretation is that it applies to the act of self-defense, i.e. the point in time one can act in self-defense after the need for such arises. Fabio's interpretation is that it applies to the situation, meaning that the need itself is immediate but the point in time that one is able to respond to that need is arbitrarily, and thus can be artificially, long.

Here is what's in the petition (http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf):


In doing so, the Court concluded that the District
could not preclude law-abiding individuals from
keeping a “lawful firearm in the home operable for the
purpose of immediate self-defense.” Id. at 635.


In addition to deciding whether "immediate" means "immediate," we also have a "lawful firearm... operable for the purpose...".

If we throw out all the attorney games, the question remains, to pick a random time, the following: "Does the S.F. ordinance allow a person who is asleep to posses a lawful firearm that is operable for the purpose of immediate self-defense?"

IVC
12-19-2014, 9:36 AM
Let's play "let's make a trigger lock law." ... I think this law is constitutional...did I miss any exceptions?

The inability to define a meaningful "trigger lock law" is the same as, e.g., the inability to define "an assault weapon."

If the government wants to ban something they cannot define, maybe there is a problem with the government and their ban, not with us being picky about not wanting such a regulation.

Maestro Pistolero
12-19-2014, 9:55 AM
Once 'shall not be infringed' was treated as somehow unclear, it was game on for the lawyer shenanigans. What language could It possibly contain that would be more unambiguous?

And what did Heller, in all its historical linguistic inquiry say about it. Not much, except to quote various cases through the decades that used the language. It made no conclusion of which I am aware about what the several historical uses means to the right today.

RobertMW
12-19-2014, 9:55 AM
lawful firearm in the home operable for the
purpose of immediate self-defense

What I have felt this entire time, with all these thoughts of times where mandating lock boxes as long as there are "self-defense exceptions" is that it is operable for the purpose of immediate self-defense, not the act of immediate self-defense. The first says to me that you may always have a firearm, anywhere, in any condition, ready to use for the purpose of self-defense. If you have to have a firearm in a lock of some type, that is saying that you may only make your gun ready for the act of immediate self-defense, which is NOT the language of Heller.

Something can have a purpose without actively acting on that purpose.

IVC
12-19-2014, 10:16 AM
A gun with a lock is not "operable."

There is also the issue of "immediate self-defense." Why would the majority use that phrase instead of a much simpler "for the purpose of self-defense" if they didn't mean "immediate?" Or, alternatively, why wouldn't they add a sentence about "non-immediate self-defense" if they believed such a concept existed?

FABIO GETS GOOSED!!!
12-19-2014, 10:23 AM
It wasn't. It was a summary of the certiorari petition (http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf) filed by Michel & Associates.

Which you claimed was "another way to say the same thing" that I said, which it is not.

FABIO GETS GOOSED!!!
12-19-2014, 10:25 AM
The inability to define a meaningful "trigger lock law" is the same as, e.g., the inability to define "an assault weapon."

You're not doing so well in this thread lol. It's really easy to define "locked containers" and "doj approved trigger locks," and to make a law that says you're required to use them. ETA: you'd think that if there was a vagueness argument somehere it would have been made, as Michel & Associates invented the "this gun law is vague" argument.

IVC
12-19-2014, 2:16 PM
Which you claimed was "another way to say the same thing" that I said, which it is not.

I was talking about myself and the argument that I made.

IVC
12-19-2014, 2:32 PM
It's really easy to define "locked containers" and "doj approved trigger locks," and to make a law that says you're required to use them.

*Exemptions* are hard to define if the law is required to be, say, the least restrictive way of achieving a narrow, compelling government interest.

If the reasoning behind the law is "for the children," the law needs to handle houses without children...

IGOTDIRT4U
12-19-2014, 3:19 PM
Firstly, I wouldn't put it past them. Secondly, if you read any of the conversation you just jumped into it should be apparent that the exception the PC allows for is the carrying on the person. They could be a registered owner with their weapon in a safe and not be in violation of the law.:facepalm::facepalm:

Ithink that was the intended sarcasm of his post. Either way, watching this as LA is pushing this, too.

LoneYote
12-19-2014, 8:00 PM
We agree on the particular point of theft.

A "locked container" inside a home does protect, e.g., against children (your own, or visitors') from finding and operating a loaded gun. In that case the government interest is not "theft," but "safety." It's these additional government interests that expand the applicability of the law beyond the "locked empty home," so your argument applies only partially.

Are these children the same as the gun a felon uses for self defense? Appearing magically to create only the desired effect? A locked container inside a home occupied by children and visitors can serve the interest. An empty and locked home is no different than considering the whole home as a locked container. If a locked and empty home is insufficient to prevent children from finding and operating a weapon, why would a 5lbs metal box or a $5 cable lock be sufficient? It is a relatively simple question but you keep wandering into the rough.

IVC
12-19-2014, 8:15 PM
It's "locked and not empty" that they use to justify the ordinance. Again, I'm not advocating for it, just pointing it out.

dantodd
12-19-2014, 9:46 PM
Of course. Storage laws that cover firearms in the home and that operate when you're not home certainly qualify. But note that such laws would not interfere with the ability to defend oneself right now.

As for the question of "what about when you arrive at home only to find a burglary in progress?" (that was FGG's, but I'll answer it here because it's consistent with the context of our discussion), the answer to that is that the right extends outside the home as well, and as such, arrival at home should not be an issue because you will already be carrying. Or, at least, you would be in the absence of rights-infringing laws to the contrary.

It is invalid to presume that a given interpretation of the decision is invalid because it fails to account for situations in which one's rights are being infringed in some other context.


Perhaps. The problem here is that the term "immediate" must have some meaning that causes the holding to have a different effect than it would in its absence. Must we read it as saying that laws which forbid you from readying your weapon for self-defense are valid as long as the need for such defense is not "immediate"? Meaning that it is valid for the government to statutorily forbid you from preparing your defense (e.g., if you knew ahead of time that you were going to be attacked)? That is the only interpretation I can think of which is consistent with your objection above and the requirement that the term have some effect.


I'm sorry, I read that over again and I still can't figure out what you make of the term "render" as specifically chosen to be included in the Heller opinion.

kcbrown
12-19-2014, 10:07 PM
I'm sorry, I read that over again and I still can't figure out what you make of the term "render" as specifically chosen to be included in the Heller opinion.

The term "render" (indeed, the entire passage) was used by the Supreme Court to describe the law that it overturned. It overturned the "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense".

One might insist that the "immediate self-defense" bit is also used to describe the law in question, but one runs afoul of the fact that the law didn't prohibit unlocking and/or assembling the firearm merely for immediate self-defense, it did so for all purposes, whether or not self-defense was involved and whether or not that self-defense was "immediate" or not. So whereas the term "render" quite clearly is directly descriptive of the law SCOTUS overturned (as the law prohibited one from unlocking the firearm or assembling it while it was in the home), the context of the term "immediate" is not. That term is embodied in a phrase which describes the basis upon which the Court objected to the law. Therein lies its significance, such as it is.

As such, unless I am forced to read the holding in the way FGG apparently is, in which case absurdly evil conclusions logically arise, I read nothing into the term "render" save for the fact that it was being used to describe the law being overturned.

IVC
12-20-2014, 7:17 AM
"For the purpose of immediate self defense" is quite cumbersome compared to the "for self defense" which the court could have used.

Maestro Pistolero
12-20-2014, 8:13 AM
"For the purpose of immediate self defense" is quite cumbersome compared to the "for self defense" which the court could have used.

I like immediate self defense. For all the parsing that has been done here, it correlates directly to the fact that self-defense is always an urgent, immediate matter. After all, if there is no immediate threat to life and limb, there is no justification for using potentially lethal force. It's fitting, IMO.

dantodd
12-20-2014, 9:56 AM
The term "render" (indeed, the entire passage) was used by the Supreme Court to describe the law that it overturned. It overturned the "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense".

One might insist that the "immediate self-defense" bit is also used to describe the law in question, but one runs afoul of the fact that the law didn't prohibit unlocking and/or assembling the firearm merely for immediate self-defense, it did so for all purposes, whether or not self-defense was involved and whether or not that self-defense was "immediate" or not. So whereas the term "render" quite clearly is directly descriptive of the law SCOTUS overturned (as the law prohibited one from unlocking the firearm or assembling it while it was in the home), the context of the term "immediate" is not. That term is embodied in a phrase which describes the basis upon which the Court objected to the law. Therein lies its significance, such as it is.

As such, unless I am forced to read the holding in the way FGG apparently is, in which case absurdly evil conclusions logically arise, I read nothing into the term "render" save for the fact that it was being used to describe the law being overturned.

FGG's, and my, reading does not require any "evil conclusions" it merely requires one to accept that the court ruled solely on the question before it and said that any law preventing you from rendering a firearm usable for immediate self-defense is unconstitutional. This does not require tone to believe that any and every law that permits one to render a firearm ready for self-defense is constitutional.

This is a logical mistake you make continually. It is the same error you make when you claim that the court's denial of cert is tantamount to a ruling supporting the Circuit in the case.

You tend to adopt the absolute worst case scenario whenever the court leaves a question unanswered.

FABIO GETS GOOSED!!!
12-20-2014, 10:23 AM
FGG's, and my, reading does not require any "evil conclusions" it merely requires one to accept that the court ruled solely on the question before it....

So, is the practicality of the law is irrelevant in your world too? lol.

kcbrown
12-20-2014, 11:41 AM
FGG's, and my, reading does not require any "evil conclusions" it merely requires one to accept that the court ruled solely on the question before it and said that any law preventing you from rendering a firearm usable for immediate self-defense is unconstitutional. This does not require tone to believe that any and every law that permits one to render a firearm ready for self-defense is constitutional.

This is a logical mistake you make continually. It is the same error you make when you claim that the court's denial of cert is tantamount to a ruling supporting the Circuit in the case.

You tend to adopt the absolute worst case scenario whenever the court leaves a question unanswered.

I agree. Strictly speaking, such a construction does not logically follow from denial of cert alone.

However, firstly, the lower courts have been, by and large, reading Heller in the same way (limiting it to its most narrow effect possible), so my "evil conclusions" wind up becoming reality in those areas. Indeed, is not Jackson evidence of precisely that? And secondly, seeing how the Court has thus far kept such questions unanswered and, save for the difference between "persuasive" versus "binding" precedence, the end result has been tantamount to a ruling supporting the Circuit (since the effect is that the Circuit's ruling remains in place), exactly how has my adoption of the worst case scenario departed from reality?

dantodd
12-20-2014, 8:00 PM
So, is the practicality of the law is irrelevant in your world too? lol.

I'm not sure what you mean. I believe the impracticality of the law is relevant. I merely believe the Heller doesn't directly address this exact situation. I think it is unconstitutional and I suspect that, if this ends up in front of the Supreme Court it will be stricken.

There are a number of impracticalities within the law. One simple example is that the law makes it virtually impossible to properly clean or repair your firearm in your own home.

FABIO GETS GOOSED!!!
12-20-2014, 8:11 PM
I'm not sure what you mean. I believe the impracticality of the law is relevant. I merely believe the Heller doesn't directly address this exact situation. I think it is unconstitutional and I suspect that, if this ends up in front of the Supreme Court it will be stricken.


We're on the same page, I was making fun of one of kcbrown's posts.

kcbrown
12-20-2014, 9:08 PM
So, is the practicality of the law is irrelevant in your world too? lol.

Then tell me what difference the use of the term "immediate" makes in the holding.

We're on the same page, I was making fun of one of kcbrown's posts.

That is sometimes (perhaps even more often than that) easy to do. Show how that is the case here, please.

wildhawker
01-15-2015, 12:23 PM
FPC, SAF, CGF, and others filed an amicus brief in support of NRA/petitioners this morning (https://www.firearmspolicy.org/2015/01/supreme-court-urged-to-take-up-san-francisco-gun-control-case).

It can be viewed at: https://www.firearmspolicy.org/wp-content/uploads/2015/01/14-704-Jackson-v-SF-amicus-2015-1-15.pdf

-Brandon