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View Full Version : CA appeals Court suggest 2A exists outside the home


flyonwall
09-06-2013, 1:08 PM
Here is a creative case with some interesting analysis that could conceivably be used to argue that CA Courts accept that a 2a right exists outside the home.
(To date Los Angeles and San Bernardino have stated no such right exists.)
http://www.courts.ca.gov/opinions/documents/JAD13-10.PDF

Tincon
09-06-2013, 1:46 PM
The weapon in this case, a full size modified baseball bat, weighted with lead and wrapped in rope, does not appear to us to fall in to the classification of a weapon that would normally be possessed by a law abiding citizen for a lawful purpose. Instead, it appears to us to be a weapon which, by its very nature, increases the risk of violence in any given situation, is a classic instrument of violence, and has a home-made criminal and improper purpose. Likewise, it appears to be the type of tool that a brawl fighter or a cowardly assassin would resort to using, designed for silent attacks, not a weapon that would commonly be used by a good citizen. We conclude that possession of such a weapon is not protected by the Second Amendment of the United States Constitution. In this regard, we agree with the trial judge.

The conclusion aside, the analysis here is exactly what I think SCOTUS gave us with Heller/McDonald. Excellent work.

FABIO GETS GOOSED!!!
09-06-2013, 1:57 PM
Too bad it's one of those appellate division opinions that is of no precedential value.

jrr
09-06-2013, 2:54 PM
The use of Miller is very interesting, and potentially very helpful. I can't think of many arms that better serve a militia purpose than an AR15, given that it is specifically designed as a civilian sporting version of a military arm.

Of course, I fully expect the court to conveniently forget that argument and revert right back to the standard "Heller and McDonald didn't say anything about outside the home, so therefore we decline to do anything" if and when a case like this involving an AR comes up.

And, I am certainly not crazy about the language from People v. Mitchell. It seems to me that under that analysis any and all weapons carried by individuals could be banned and the court would find a significant government interest in doing so, because you Might improperly use it when self defense isn't really justified.

Another gem is the analysis that the law doesn't completely ban the item, so it is only due intermediate rather than strict scrutiny. The argument that because POLICE and LICENSED SECURITY GUARDS can carry them, it is therefore not a complete ban makes me want to bang my head against the desk. By that logic the DC ban wasn't really a complete ban, because police officers still had guns. I can't understand what they were thinking when they wrote that.

But, if all that we got out of it was the Miller test modified to "commonly used for lawful purposes" then that would be awesome.

flyonwall
09-06-2013, 4:35 PM
I could be wrong, but I don't think we have any State cases similar to the cases pending in the 9th pre or post open carry ban. Might be interesting to file one if we could get people to actually start applying and suing over denials.

guns4life
09-06-2013, 4:51 PM
Too bad it's one of those appellate division opinions that is of no precedential value.



http://www.troll.me/images2/buzz-killington/sorry-sir-buzz-killington-has-crashed-our-party-thumb.jpg


:p

flyonwall
09-06-2013, 5:13 PM
Guns4life: please go away if you don't have anything intelligent to add. You clearly don't understand the relevance or legal truth of what fgg added to this discourse.

guns4life
09-06-2013, 5:24 PM
Guns4life: please go away if you don't have anything intelligent to add. You clearly don't understand the relevance or legal truth of what fgg added to this discourse.


It was a joke, fgg is the man...he knows that.

flyonwall
09-06-2013, 5:25 PM
Then please accept my humble apologies. Just tired of all the crap heaping on this forum.

FABIO GETS GOOSED!!!
09-06-2013, 5:30 PM
I was making a joke for Tincon, I got as far in the opinion as "appellate division" and it reminded me of something.

guns4life
09-06-2013, 5:31 PM
Then please accept my humble apologies. Just tired of all the crap heaping on this forum.


No offense taken at all. I'll add more emoticons next time...or just keep my stupid meme's for the OT section. :D

Tincon
09-06-2013, 5:31 PM
I was making a joke for Tincon, I got as far in the opinion as "appellate division" and it reminded me of something.

I got the joke and the sub-joke by g4l. Both were :D

ETA: not so sure about the "legal truth" though... ;)

ElvenSoul
09-06-2013, 5:38 PM
A step in the right direction

Maestro Pistolero
09-07-2013, 7:33 AM
Likewise, it appears to be the type of tool that a brawl fighter or a cowardly assassin would resort to using, designed for silent attacks, not a weapon that would commonly be used by a good citizen. We conclude that possession of such a weapon is not protected by the Second Amendment of the United States Constitution. In this regard, we agree with the trial judge.

Good Lord! You can tell all that from looking at a bat? There is so much projecting by the court here it's hard to know where to begin. Fundamentally, this is a bat, a club. . . . a more basic, ancient and primitive weapon would be hard to imagine. That it's designed or modified to be more effective than a regular bat hardly makes it dangerous AND unusual.

Remember, that along the continuum of what the court may decide is dangerous and unusual are RPGs, mortars, tanks, shoulder fired missile launchers, etc.

A bat, or club, is not remotely in the same league. Bad decision in my opinion, regardless of its tacit acknowledgement of the obvious point that the second amendment was not codified to protect indoor shooting.

Mulay El Raisuli
09-10-2013, 7:48 AM
Good Lord! You can tell all that from looking at a bat? There is so much projecting by the court here it's hard to know where to begin. Fundamentally, this is a bat, a club. . . . a more basic, ancient and primitive weapon would be hard to imagine. That it's designed or modified to be more effective than a regular bat hardly makes it dangerous AND unusual.

Remember, that along the continuum of what the court may decide is dangerous and unusual are RPGs, mortars, tanks, shoulder fired missile launchers, etc.

A bat, or club, is not remotely in the same league. Bad decision in my opinion, regardless of its tacit acknowledgement of the obvious point that the second amendment was not codified to protect indoor shooting.


Mine too. Along with what you've pointed out....


And, I am certainly not crazy about the language from People v. Mitchell. It seems to me that under that analysis any and all weapons carried by individuals could be banned and the court would find a significant government interest in doing so, because you Might improperly use it when self defense isn't really justified.


Mitchell is a terrible precedent. Their use of Mitchell is the clue that The PRK courts are not civil rights friendly.


The Raisuli

Tincon
09-10-2013, 10:24 AM
Good Lord! You can tell all that from looking at a bat? There is so much projecting by the court here it's hard to know where to begin. Fundamentally, this is a bat, a club. . . . a more basic, ancient and primitive weapon would be hard to imagine. That it's designed or modified to be more effective than a regular bat hardly makes it dangerous AND unusual.

Remember, that along the continuum of what the court may decide is dangerous and unusual are RPGs, mortars, tanks, shoulder fired missile launchers, etc.

A bat, or club, is not remotely in the same league. Bad decision in my opinion, regardless of its tacit acknowledgement of the obvious point that the second amendment was not codified to protect indoor shooting.

Keep in mind that the defense apparently submitted ZERO evidence as to lawful use, not sure if the prosecution submitted anything.

escon1
09-13-2013, 8:08 AM
Too bad it's one of those appellate division opinions that is of no precedential value.
if a higher court gets an appeal from an appellate division and does not take the case, it is effectively so.

Michael Ehline
09-13-2013, 8:29 AM
if a higher court gets an appeal from an appellate division and does not take the case, it is effectively so.

True, it is the law of the land so long as the case is from the same appellate district, and there is not a competing App case in the same district, or an outside district seems to be more compelling, for example in the particular division of justices. But if there are competing cases, in other appellate districts, and no CA Supreme or SCOTUS case, then the new appellate district can make their own rules up. CA judges are mainly far left liberals from what I have seen. Many are left over from Jerry Brown's first assault on the Republic. Even Wilson's appointees seem to come from a statist POV, that appears to fear the little guy from having rights, since only a government official or someone who went to law school, could even possibly know how to be a good citizen.